R v M, RJ
[2014] SADC 90
•23 May 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M, RJ
Criminal Trial by Judge Alone
[2014] SADC 90
Reasons for the Verdicts of His Honour Judge Slattery
23 May 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
Trial by Judge Alone.
Accused charged with the following counts in respect of three complainants: one count of unlawful sexual intercourse, four counts of indecent assault and one count of persistent sexual exploitation of a child.
Verdict: Guilty on all counts.
Criminal Law Consolidation Act, 1935 s5, s49(3), s50, s56, s69, s278; Evidence Act 1929 (SA) s34CB, s34M, s34P; Juries Act 1927 s7(1) ; Evidence Act 1929 (SA) s34CB , referred to.
De Jesus v R (1986) 61 ALJR 1; Hoch v R (1988) 165 CLR 292; R v M, BJ (2011) SASCFC 50, applied.
Pfennig v R (1995) 182 CLR 461; R v Gum [2007] SASC 311; Hoch v R (1998) 165 CLR 292; Martin v Osborne (1936) 55 CLR 367; Director of Public Prosecutions (UK) v Boardman [1975] AC 421 ; R v M, BJ [2011] SASCFC 50; R v Wallace [2008] SASC 47; R v N, SH [2010] SASCFC 74; R v Maiolo (no. 2) 117 SASR 1; R v A (2012) 113 SASR 146 ; R v S (2010) 109 SASR 46; R v El Rafai (2012) SASCFC 98 ; Shaw v The Queen (1952) 85 CLR 365 ; R v Soma (2003) 212 CLR 229 ; Sutton v R (1983-1984) 152 CLR 523, considered.
R v M, RJ
[2014] SADC 90JUDGE SLATTERY
CRIMINAL
This is a trial by Judge alone.
The accused RJM is charged on Information dated 17 February 2014 with the following offences:-
INFORMATION
RJM is charged with the following offences:
First Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RJM between the 1st day of January 1987 and the 31st day of December 1989 at Brooklyn Park, had sexual intercourse with KRM, a person of or above the age of 12 years and under the age of 17 years, by inserting his finger into her vagina.
Second Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RJM between the 1st day of January 1987 and the 31st day of December 1989 at Brooklyn Park, indecently assaulted KRM.
Third Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
RJM between the 1st day of January 1987 and the 15th day of March 1990 at Salisbury North, indecently assaulted KRM.
Fourth Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RJM between the 11th day of November 1990 and the 1st day of March 1993 at Kilburn, over a period of not less than three days, committed more than one act of sexual exploitation of MLW, a person under the age of 17 years, by inserting his penis into her vagina.
Fifth Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RJM between the 13th day of July 1988 and the 31st day of December 1990 at Salisbury North, indecently assaulted DAW.
Sixth Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
RJM between the 13th day of July 1988 and the 31st day of December 1990 at Salisbury North, indecently assaulted DAW.
The accused pleaded not guilty to the charges. He elected to be tried by a Judge sitting without a jury pursuant to s7(1) of the Juries Act 1927.
Despite the fact that the Court of Criminal Appeal has said that it is not, in all cases, necessary where a trial is heard by a Judge sitting without a jury to detail every obvious and basis direction or rule which might be given to a jury, it is my view that it is still necessary to recall directions about which I have reminded myself. Those matters are as follows:-
1. An accused person is presumed innocent of all charges unless and until guilt on any particular charge has been proved beyond reasonable doubt.
2. The prosecution bears the burden of proving each particular charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of each offence.
3. The accused does not carry any onus of proof and to the extent that he might put forward a defence, he does not have to prove it.[1]
4. It is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. If I am left with a reasonable doubt as to the establishment of any element of a charge, then I must give the accused the benefit of that doubt and find him not guilty of that charge.
5. Each of the counts on the Information concerns a separate offence; I must treat each separately and consider only the evidence relevant to that charge. If I were to find the accused guilty of one of the charges, on the evidence relevant to that charge alone, I must not use that evidence nor the fact of that finding to assist in the proof of any of the other charges. Nevertheless, such evidence may be relevant to the background or circumstances surrounding the events said by the prosecution to give rise to each of the offences charged.
6. The charges do not stand or fall together. If I were to be satisfied beyond reasonable doubt that the accused committed one of the offences charged, it does not follow that he also should be found guilty of any of the other offences charged. Depending on my findings on the evidence, I may find the accused not guilty of all offences charged or guilty of one or more of them.
7. I have reminded myself of the normal directions given to juries concerning the proper approach to assessing the various witnesses who gave their evidence, their credibility and reliability and the proper approach to drawing inferences of fact. In this case, the accused elected not to give evidence and he remains silent. The accused was not bound to give evidence and he had the right to decline to give evidence. Because that is his legal right, I am not permitted to draw any inference adverse to him or the case he puts forward from the exercise of that right. There may be many reasons why he did not give evidence and I should not speculate on those reasons. I have not done so. The accused’s silence in Court is not evidence against him, does not constitute an admission by him, may not be used to fill gaps in the evidence tendered by the prosecution and may not be used as a “makeweight” in assessing whether the prosecution has proved its case beyond reasonable doubt.
8. Finally, I remind myself that it is not a question of preferring one version over any other. The sole task before me is to determine whether or not the prosecution has proved the elements of each charge considered separately and beyond reasonable doubt. If I am unable to say where the truth lays in respect of a charge, then it necessarily means that the prosecution has failed in respect of that charge.
[1] In this case the accused did not give evidence nor did he call any witnesses in the defence case. The principal contention of the accused was that there was a real possibility of concoction and collusion between the complainants.
I turn now to the charges and set out the basic elements of each of the charges which the prosecution must prove beyond reasonable doubt.
The elements of the offences
It is necessary that I set out here the elements of the offences in respect of each count.
Count 1: unlawful sexual intercourse
The integers of the offence to be proved beyond reasonable doubt are as follows:-
1. The accused had sexual intercourse with the complainant. “Sexual intercourse” is defined in s5 of the Criminal Law Consolidation Act 1935.[2]
2. That the complainant was under the age of 17 years at the time the act of sexual intercourse took place.
[2] sexual intercourse includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving—
(a)penetration of a person's vagina, labia majora or anus by any part of the body of another person or by any object; or
(b)fellatio; or
(c)cunnilingus,
and includes a continuation of such activity;
Count 2, count 3, count 5 and count 6: indecent assault
The integers of the offence, to be proved beyond reasonable doubt, are as follows:-
1. An assault by the accused on the complainant. An assault is any application of force. Touching is sufficient. It need not have caused injury.
2. The touching was intentional as distinct from accidental.
3. The touching was without lawful excuse.
4. The touching was in circumstances of indecency – that is, conduct that is unbecoming or offensive to common propriety.
Count 4: persistent sexual exploitation of a child
The integers of this offence, to be proved beyond reasonable doubt, are as follows:-
1. An adult person.
2. Over a period of not less than three days.
3. Committed more than one act of sexual exploitation.
4. Of a child under the prescribed age (17 years: s50 (7) Criminal Law Consolidation Act).
A person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could be the subject of a charge of a sexual offence. The sexual offence particularised is that the accused is alleged to have inserted his penis into the vagina of MW. This alleged activity is a sexual offence for the Criminal Law Consolidation Act.
Although evidence was adduced by the prosecution with respect to each of these charges, there was also evidence of the accused engaging in other acts of a criminal nature. This evidence was led by the prosecution for a number of purposes but it was not led by the prosecution as evidence of a particular propensity or disposition of the accused and I would not use it for that purpose. I discuss these aspects later in these reasons.
On the application of the prosecution and without any opposition from the accused, each of the complainants gave their evidence by video link. I do not draw any particular inference adverse to the accused as a result of this process being used nor do I allow any of those arrangements to influence the weight that, if any, I place upon the evidence of the complainants.
Introduction
The complainants, KRM, MLW and DAW are all the daughters of SW. KRM was born on 16 March 1973.[3] MW was born on 11 November 1978.[4] DW was born on 13 July 1984. SW has 7 children: TE born 7 March 1971,[5] KRM, JE born on 29 August 1975,[6] MW, BW born on 9 July 1980, DW and KW born on 14 March 1987.[7] TE, KRM, JE, MW and BW were the children of SW from two prior relationships. DW and KW are children born of the relationship between SW and JW.
[3] Exhibit P1.
[4] Exhibit P1.
[5] Exhibit P1.
[6] Exhibit P1.
[7] Exhibit P1.
TE is the eldest sister. TE became involved in a relationship with the accused[8] when TE was 15 years of age.[9] The case for the prosecution is that the three complainants KRM, MW and DW treated TE as their eldest sister and after TE left the family home in 1986, continued to have contact with her whilst she was in a relationship with the accused. It was as a result of these circumstances, that it was alleged that the accused gained access to the three women whilst they were young girls and committed the alleged offences against them. These offences are alleged to have been committed after December 1986. In October 1987, at a time that TE was 16 and a half years of age, TE gave birth to S, the daughter of TE and the accused.
[8] Born 8 July 1963: exhibit P1.
[9] 1986.
At the time that the offences are alleged to have been committed, each of KRM, MW and DW were all very young girls or teenagers. Each of them were under the age of 17 years.
The youngest sibling, KW was not born until 1987 and so was therefore not born when TE met the accused in 1986.
Background
There are a number of home addresses that will be referred to in the course of this verdict. It is appropriate that I set them out and give a brief description about the homes and the occupants. The W family occupied two homes principally. The first was at Mantissa Road, Salisbury North. The W family lived at those premises up until December 1990. That house comprised a dining room, kitchen, hallway at the end of which was bedroom 1, in the middle of which was bedroom 2. A lounge adjoined bedroom 2 and which faced a front porch. Adjacent to the lounge was bedroom 3. Access to bedroom 3 was taken through the lounge. Adjacent to the dining room was a room called “the dormitory”. It is referred to as bedroom 4.[10] At the back of the house were a laundry, bathroom, toilet and utility areas. Generally,[11] Mr and Mrs W occupied bedroom 1, the boys occupied bedroom 2, bedroom 3 was occupied by TE and then KRM and bedroom 4, the dormitory was occupied by MW, DW and KW. These premises had a front yard and a largish rear yard which was triangular in shape. In the rear yard were a number of sheds and a cubby house.[12] It will hereafter be referred to as Mantissa Road.
[10] Exhibit P2.
[11] The expression “generally” is used intentionally because the evidence that I accept (and which was not put in contest) was that some of these arrangements changed from time to time.
[12] Exhibit P3.
The W family moved to Pemberly Avenue, Salisbury Park from about December 1990. That home was disposed as a lounge room, kitchen and dining room, and four equal sized bedrooms. Adjacent to the bedrooms were a bathroom, toilet and laundry. The kitchen and lounge room and dining room area were at the front of the house. The house was accessed from a porch into the lounge room. There was a hallway running from the lounge room to the back of the house and access to the hallway could be taken from each of bedrooms 1, 2, 3 and 4.[13] This home will hereinafter be referred to as Pemberly Avenue.
[13] Exhibit P4.
The accused and TE commenced a de-facto relationship when TE was 16 years of age, and they first went to live together at a unit at Leader Street, Goodwood. They stayed at the unit between about December 1986 to June or July 1987. I was not provided with any outline of how that unit was disposed at that time. Nothing turns on that issue.
The accused and TE moved from the Leader Street address to a unit at Tristania Street, Brooklyn Park (hereinafter referred to as Tristania Street). This occurred in June or July 1987. They remained at those premises until about December 1989. Tristania Street was a unit in a block of units. It was disposed as a lounge room with one large bedroom. Adjacent to the lounge was a dining room kitchen area. Adjacent to the kitchen was a laundry. There was a second bedroom and bathroom.[14]
[14] Exhibit P5.
At the time that the accused and TE were living at Tristania Street, their daughter S was born on 3 October 1987.
After December 1989, the accused, TE and S went to live at Marmion Avenue, Kilburn (hereafter referred to as Marmion Avenue) and remained there living in a de-facto relationship between December 1989 and February 1993.
The house at Marmion Avenue was a housing trust home. It was semi-detached. It consisted of three bedrooms, a lounge which was adjacent to bedrooms 1 and 2, a dining room area adjacent to bedrooms 2 and 3, a kitchen, laundry, toilet and bathroom.[15]
[15] Exhibit P6.
In about February 1993 the relationship between the accused and TE broke down. After a brief period, the accused moved to Murray Street, Fulham with KRM and lived there between February 1993 and a period in 1994. Subsequently, the accused and KRM went to live at Helensley Avenue, Brooklyn Park and remained there between 1994 and 1998.
After the accused left the Marmion Avenue premises, TE and S continued to live in those premises.
In this summary I have made references to exhibits P2, P4, P4, P5 and P6. A list of agreed facts was tendered.[16] Those agreed facts read as follows:-
[16] Exhibit P7.
“Agreed Facts
1. The accused was born on 8 July 1963.
2. a) Exhibit P2 referred to in the transcript of the accused’s evidence given on 1 February 2011 is the same as Exhibit P2 in this trial.
b) Exhibit P4 referred to in the transcript of the accused’s evidence given on 1 February 2011 is the same as Exhibit P5 in this trial.
c) Exhibit P5 referred to in the transcript of the accused’s evidence given on 1 February 2011 is the same as Exhibit P6 in this trial.
3. a) Exhibit P2 referred to in the transcript of the accused’s evidence given on 5 June 2012 is the same as Exhibit P2 in this trial.
b) Exhibit P4 referred to in the transcript of the accused’s evidence given on 5 June 2012 is the same as Exhibit P4 in this trial.
c) Exhibit P5 referred to in the transcript of the accused’s evidence given on 5 June 2012 is the same as Exhibit P5 in this trial.
d) Exhibit P6 referred to in the transcript of the accused’s evidence given on 5 June 2012 is the same as Exhibit P6 in this trial.
4. DW was enrolled in Grade 2 at Salisbury Park Primary School on 4 February 1991, having previously attended Direk Junior Primary School. DW left Direk Junior Primary on 14 December 1990 at the end of Grade 1.
5. MW was enrolled in Grade 7 at Salisbury Park Primary School on 4 February 1991, having previously attended Salisbury North Primary School.
6. MW was enrolled in Grade 8 at Gepps Cross Girls High School on 28 January 1992.
7. MW gave her first statement to police officer Carl Triggs on 19 August 2008.
8. DW gave her first statement to police officer Carl Triggs on 25 September 2008.
9. KRM gave her first statement to police officer Carl Triggs on 1 October 2008.
10. When giving evidence on 6 September 2010, SW was asked:
Q: And you never saw the accused kiss any of your daughters in an inappropriate manner.
She responded:
A: No.”
These agreed facts disclose that there has been previous trials concerning these places and, apparently, these events. I was not presently aware of those matters. For reasons that will later become obvious, I have had regard to a number of the decisions of the Court of Appeal in respect of appeals involving some or all of the complainants herein and the accused. Those decisions are matters of public record and, in the usual course of things, I was aware of their existence. The submissions put by counsel in this matter have made it necessary for me to more closely scrutinise the contents of those decisions.
The prosecution has tendered copies of transcript of the accused’s evidence in other trials.[17] I have read that transcript. It appears that the accused has previously been charged with similar offences and that, those matters have been the subject of proceedings before this Court. It is unnecessary for me to know more about the matter than that and to enquire further would be a distraction. I will not do so. I will take into account each of the matters contained within the exhibits tendered to the Court.
[17] Exhibits P8 and P9; Shaw v The Queen (1952) 85 CLR 365 at 380.
The prosecution identifies a number of contradictions in the transcript of the evidence previously given by the accused. It was necessary for the prosecution to tender the transcript as part of its case so that it “offers all its proof before (the) accused is called upon to make his… defence…”[18] It also may be used by the prosecution to disclose certain inconsistencies between the evidence of the accused given on these issues previously. As the accused did not give evidence in this case, the prosecution seek to use that evidence for the latter purpose. I will also address that matter later in these reasons.
[18] R v Soma (2003) 212 CLR 229 at [28] et seq.
Whether in due course the evidence, once admitted, could be used as suggested by the prosecution depended upon how the evidence unfolded during the case which in turn depends on whether the accused gave evidence. He did not and the use of the evidence for the prosecution is thereby limited.
Cross admissibility
The common law rule[19] was that where an Information charged offences of a sexual nature concerning or involving two complainants, then where the evidence of one complainant was not admissible in respect of the other charges, then generally speaking, separate trials would be directed. The purpose of separate trials was to prevent an accused suffering impermissible prejudice. The rule was based on questions of propensity[20] in the sense of propensity to commit a crime of a particular kind.
[19] De Jesus v R (1986) 61 ALJR 1 (De Jesus); Hoch v R (1988) 165 CLR 292 (Hoch).
[20] Pfennig v R (1995) 182 CLR 461 (Pfennig).
The common law did not exclude every type of propensity evidence; that evidence could be led to prove identity or intention, or to disprove accident or mistake. The usual approach was to detect the “striking similarities”, if any, between such evidence and the evidentiary matters arising from the alleged offences under consideration.
This approach of detecting “striking similarities” was later broadened to include matters such as: “unusual features, underlying unity, system or pattern”.[21]
[21] R v Gum [2007] SASC 311.
Adopting the approach in Pfennig, such evidence was required to raise, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.[22] A number of descriptions were commonly used and are now well familiar: the evidence raising the improbability of the events having occurred [other] than as alleged (by the prosecution);[23] there is such an obvious connection between each of the disparate allegations that they “…must be true or have arisen from a cause common to the witnesses or from pure coincidence…”[24] The cogency of the evidence must be such that it “…bears no reasonable explanation other than the inculpation of the accused person…”[25]
[22] Hoch.
[23] Ibid.
[24] R v M, BJ [2011] SASCFC 50.
[25] R v Wallace [2008] SASC 47; Hoch; Pfennig.
Section 278 of the Criminal Law Consolidation Act[26] permits two or more offences to be charged on the same Information if those charges are founded on the same facts or form or are part of a series of offences of the same or similar character. The Court may order separate trials of offences on counts depending upon the admissibility of evidence on that count in respect of all other counts (s278 (2a)(b)) in relation to a different complainant.
[26] 278—Joinder of charges
In this case, the prosecution referred to a number of pieces of evidence on the issue of cross admissibility. KRM gave evidence, that I accept beyond reasonable doubt, that the accused made a statement to her, to the effect of: “…now I have had three sisters…” (whilst holding up three fingers). The Crown submitted that this was to be understood as a reference to KRM, MW and DW.
The submission of the prosecution was that this evidence, if accepted, is indicative of a sexual interest of the accused in the three sisters. The prosecution further submitted that the evidence of MW, another sister with whom it is alleged that the accused carried out his interest means that it is more likely that he offended against KRM and in turn, based upon the whole of that evidence, leads to the conclusion that it is more likely that he did make the “three sisters” comment. In turn, this rendered it more likely that the accused acted in a similar way with the third sister, DW, as DW has claimed. In turn, it is alleged that this activity with DW manifested his sexual interest in all of the three sisters.
The prosecution also submitted that the desire to boast to KRM (“I have had three sisters”) was consistent with the cubby house behaviour when the accused is alleged to have compared KRM’s body to TE’s body; when he asked KRM to expose herself to him at Marmion Avenue (the detail of which account suggests an actual event); that it is alleged that the accused said to KRM that MW would make a good girlfriend; that as a consequence of the sexual intercourse he said that he had with MW, he was concerned that she may become pregnant; that the defendant described to KRM the intimate details of MW’s body including about her breasts and her pubic hair.
The prosecution argued that there was an underlying unity or pattern in the alleged offending by the accused relying, as it did, upon the allegations contained in the declarations. This approach, as the prosecution contended, was consistent with the judgment of the Court of Criminal Appeal in R v Maiolo (No. 2).[27]
[27] 117 SASR 1 at [138]-[168] per Peek J.
I have considered all of these submissions of counsel and I have obtained great assistance from them. Although I am of the view that there is an underlying unity or pattern in the evidence sufficient to make the evidence of the complainant’s cross admissible, I have decided to put the issue of cross admissibility to one side because of the strength and substance of the evidence of each of the complainant witnesses. All of them were reliable, compelling, impressive and credible witnesses.
I will address the issue of cross admissibility again in detail later in these reasons in deference to the detailed submissions put to me by counsel for the prosecution.
Burden of proof
Although I have set out in paragraph [4] of these reasons the directions about which I have reminded myself, in my view it is necessary to discuss those matters in a slightly more expanded form.
The accused does not have to prove or show anything. The accused was not obliged to give evidence and he chose not to do so. The only evidence of the accused that I have seen is that evidence within the exhibits P8 and P9. I have viewed that evidence in the same way as I have approached the evidence of any other witness. Those exhibits show that the content of the evidence has been substantially redacted for the purposes of a comparison of the version of facts given by the accused. Notwithstanding, I have approached my task in that respect in the same way as I would any other witness in this trial.
Complaint – s 34M
The allegations in this matter arise from conduct between 1987 and 1990. Evidence was led in relation to the complainant DW of a complaint made to DW’s friend, TS and also by the complainant MW to her then partner MP. I remind myself that the evidence is not admitted as evidence of the truth of what was alleged; it is admitted only as evidence that may go to the consistency of conduct on the part of the complainants DW and MW and thus tending to enhance their credibility. It must be recalled that if the complaint is inconsistent with the occurrence of the conduct complained of, then, depending upon the level of inconsistency, the evidence has the capacity to detract from the complainant’s overall credibility.[28] Evidence of complaint must relate to the conduct on which a charge or charges are based before it can enjoy any potential to enhance the complainant’s credibility. The approach to these matters must not be unduly technical, and must be a commonsense approach having regard to the fact that this is a matter of fact and degree.[29]
[28] R v HT (2010) 108 SASR 86 at [46]-[49] per Gray J.
[29] R v El Rifai [2012] SASCFC 98 at [130]-[133] per Kelly J.
I deal with the question of complaint later in these reasons.
Forensic Disadvantage[30]
[30] See the discussion in R v Finn [2014] SASCFC 46 at [17]-[35].
I am of the view that the period of time since the offending and the commencement of the trial has resulted in a significant disadvantage to the accused. The accused may, depending upon the issues arising on the individual counts, have been able to have someone vouch for his movements, or provide an alibi, or find forensic evidence which may have been available or not found (which can be equally important). There may have been other issues he may have been able to raise. I must therefore take into account this forensic disadvantage when scrutinising the evidence.
I have also scrutinised the evidence of the complainants with great care. Because of the effluxion of time there was no independent support for the evidence of the complainants as it related to the charges. There was some independent support for the evidence of the complainants of some of the events leading up to the charges. A Court sitting without a jury is not obliged to give a warning that it is unsafe to convict an accused on the uncorroborated evidence of an alleged victim. However, in the circumstances of this case, I intend to approach the complainants’ evidence with a measure of caution and to scrutinise it with care.
Prior to s34CB of the Evidence Act 1929 (SA) being enacted a Longman direction would have been required. It is arguable in my view that s 34CB(1) does not totally remove the discretion of a trial judge to direct a jury by way of a Longman direction but I do not have to decide the point.
Even if I had directed myself in terms of Longman it would not have affected my assessment of the complainants nor the conclusions I have drawn from their evidence.
When discussing the evidence and when making findings about the evidence I indicate that I have done so taking into account the forensic disadvantage suffered by the accused.
Uncharged Acts
KRM and SW gave evidence of uncharged acts. They are referred to in my discussion of her evidence.
I have decided that I will only act on uncharged acts that I find proved beyond reasonable doubt. I take into account that such evidence, if sufficiently proven, is potentially helpful to me in evaluating KRM’s evidence. The relevance of the uncharged incidents can be described more specifically. In particular, the prosecution is entitled to point to this evidence as helping to explain why KRM might be unclear about precise dates and details of offences charged. It may tend to explain why KRM did not make a complaint when the charged incidents were said to have occurred. It may tend to explain why the accused expected KRM’s co-operation and silence in the face of what she said was occurring. These are examples of the possible use of the evidence.
I understand that it would be wrong for me to conclude from the other conduct of the accused that he is the sort of person who would be likely to commit the offences with which he is charged. I bear in mind that it is the evidence presented in proof of the charges themselves which is the critical evidence in this trial. Evidence of other uncharged incidents is given only to assist me in my evaluation of the evidence going directly to the charges.
Evidence of the complainants
I have carefully considered all of the evidence and submissions in the matter. Generally the witnesses were giving evidence of matters that occurred over 20 years ago and allowance has to be made for that. I have borne that in mind when assessing their evidence.
For the reasons that I set out later in these reasons, I find that TE, KRM, MW and DW were all excellent witnesses and I accept their evidence beyond a reasonable doubt (independently of each other). I found that all of them to be compelling, truthful, reliable and credible witnesses.
As was his choice to make, the accused did not give evidence and exercised his right to remain silent. It is necessary to state again that no inference, one way or the other, may be drawn from the fact that the accused exercised his right to silence.
A summary of the charged offences and uncharged acts
A relationship commenced between the accused and TE some time in 1986. In December 1986 TE moved out of TE’s family home at Mantissa Road and she and the accused commenced to live at Leader Street, Goodwood.[31] They remained there for 6 months until moving to Tristania Street and S was born on 3 October 1987.[32]
[31] T66.16-20.
[32] T66.24-67.9.
In late 1989, the accused, TE and S moved to Marmion Avenue.[33] Over a period of three years from that time, TE, the accused and S would regularly visit Mantissa Road. Generally, the accused and TE would visit on Saturdays, arriving early in the afternoon and leaving in the evening at approximately 9:00 pm. This was variable. It was not always on a Saturday, it was not always the case that they stayed until 9:00 pm. However, this was generally the case.
[33] T67.13-19.
During these visits, the accused would interact with the children. The accused met TE at the “Downtown” facility in Hindley Street during 1986.[34] At the time, TE was 15 years of age. The accused was 23. During the visits between TE and the accused to Mantissa Road, the accused interacted with all of the children in the home. The other children trusted the accused and, to an extent, DW later treated him as a big brother.[35]
[34] T65.32-35.
[35] T278.29.
Although denied by the accused in his evidence in other trials,[36] I am satisfied that on one or two occasions, the accused and TE stayed over at the Mantissa Road and Pemberly Avenue premises. I am also satisfied that on occasions, the siblings of TE stayed overnight with her and the accused at Tristania Street and Marmion Avenue. I am satisfied beyond reasonable doubt that KRM stayed with the accused and TE at Tristania Street.
[36] Exhibits P8 and P9.
Count 1 concerned an allegation of an act of unlawful sexual intercourse that occurred on a night when KRM was sleeping over at Tristania Street. On that occasion, after TE had gone to bed and when KRM was lying on the floor of the lounge room of the premises, the accused is alleged to have penetrated her vagina with his fingers. This is count 1.[37]
[37] T116-118.
On a second occasion, at the same place, TE and the accused had gone to bed. KRM, who was staying over, was lying in a sleeping bag on the lounge room floor. The accused allegedly unzipped the sleeping bag, lay on top of KRM and allegedly touched her breasts and vagina. This is count 2.[38]
[38] T120-123.
A third allegation concerns an alleged act of indecent assault that occurred when the accused and TE visited the Mantissa Road premises.[39] The children at the home were playing hide and seek in the backyard. The rule proposed by the accused was that the backyard (the triangular shaped area) was out of bounds. When the game started, the accused took KRM into the cubby house in that backyard, locked the door and then allegedly touched KRM on the breasts and her vagina, both over and under her clothing. The evidence is that when these events occurred, KRM was only about 14 years of age. She did not disclose this behaviour to anybody. I will discuss this matter later.
[39] T127-131.
Evidence was led from KRM of sexual assaults that were not included within the charged events and are therefore uncharged acts. The prosecution submitted that a consideration of these matters was helpful in the understanding of the actions of the accused and KRM at the time.
In early 1993, when KRM was 19 or 20 years old, she commenced living with the accused.[40] This was at the time of the end of the relationship between TE and the accused, and the accused and KRM moved into a unit at Fulham (the Murray Street premises). The evidence of KRM was that it was her intention to get the accused away from TE and her family, especially MW because she was aware that the accused may have been sexually abusing her sister MW.[41] Her plan was that once she had lured the accused away from her family members, she would leave him but things did not go according to plan and KRM ended up staying with the accused until 1998. It is necessary at this juncture to state that KRM suffers Asperger Syndrome, a form of mild autism. I received no expert evidence on the effects of such a form of autism upon a young pubescent female person, including the effect upon the judgment of that person. The evidence of KRM and her family members discloses that KRM, at that time, had little or no social skills, was reclusive and uncommunicative, extremely private and was someone who spent a lot of time in her room although she did participate in some family activities.
[40] T136.3-13.
[41] T136.14-137.5.
On this topic, it is also alleged that during the course of the accused’s offending behaviour and subsequently in their relationship, the accused made a number of what are described as “sexualised comments” to KRM about MW.[42] In 1990 or 1991, at Marmion Avenue, the accused described to KRM how MW exposed her vagina to him and he said that MW would make a good girlfriend. Soon after KRM commenced living with the accused, he made a number of comments to her about MW; he informed her that he had sex with MW, he described MW’s body in intimate detail including the size of her nipples.[43] SW gave evidence of a recollection she had that when MW was about 9, she saw the accused kiss MW on the lips.[44] This occurred at the front of their house when TE and the accused were leaving to return home. SW recalled that the accused was then in an overly happy mood and that is what drew her attention to him.
[42] T8.32-33.
[43] T144.2-145.3.
[44] T30.29-38.
I refer to agreed fact four[45] that SW had given evidence previously and was asked, when she gave evidence on 6 September 2010, whether she ever saw the accused kiss any of her daughters in an appropriate manner. SW responded in the negative but she said in evidence before me that her recollection of the circumstances surrounding this kissing event only recently occurred to her. She had not recalled the event previously. I will deal with that matter later.
[45] Exhibit P7.
On the case of the Director, the accused’s comments about MW to KRM demonstrated a sexual interest in MW that is relevant to establishing the credibility of MW and KRM, that makes it more likely that the accused had sexually offended against MW but also supports KRM’s complaints and demonstrates that the accused had a sexual relationship with KRM and felt it safe to tell KRM about sexually assaulting MW. I will also deal with those matters later in these reasons.
MW was the fourth eldest of SW’s children and when she was 13 or 14 years old, MW began staying overnight regularly with the accused and TE at Marmion Avenue.[46] On occasions, MW would babysit S and on those occasions, if she slept over, she would sleep in the third bedroom at the Marmion Avenue premises.[47] She slept in the bed adjacent to the wall adjoining the bathroom which was the wall furthest from bedroom 1. There was a doorway in bedroom 1 and a doorway in the lounge room to the dining room. This door was adjacent to the bedroom 1 door. There was a door in bedroom 3. It was adjacent to the dining room. S slept in bedroom 2 which was between bedroom 1 and bedroom 3. The doorway to bedroom 2 opened onto the dining room.
[46] T215.3-5.
[47] Exhibit P6, P6A.
The allegations against the accused in relation to MW are that he would come into the spare room (bedroom 3), remove her undergarments, hold MW’s hands above her head and penetrate her vagina with his penis.[48] MW estimated that he had penile-vaginal sexual intercourse with her between 15 and 20 occasions.[49] At the time MW was about 13 years of age and was in year 8 at Gepps Cross Girls High School.[50] This is count 4 concerning persistent sexual exploitation of a child. It encompasses penile-vaginal sexual intercourse. MW did not inform anyone about what was happening to her at the time. She did not disclose the matter until she was in her mid-20s when she told her boyfriend when he held her arms in a similar position during sexual intercourse. This is count 4.
[48] T220.34-221.6.
[49] T219.15.
[50] T215.
DW was the second youngest of SW’s children and she was born on 13 July 1984.[51] She lived at Mantissa Road until she was about 6 and thereafter moved with the family to Pemberly Avenue. She recalls the accused and TE visiting the family home at Mantissa Avenue.[52] She found herself in the boys’ bedroom with the accused. The boys’ bedroom is bedroom 2.[53] On that occasion, the accused allegedly pulled down her pants and touched her around the vagina.[54] She recalls him asking if it hurt and she replied that it did not. This is count 5.
[51] T275.8-11.
[52] T278.13-14.
[53] Exhibit P2.
[54] T279-282.
Count 6 relates to a visit to the family home by the accused and TE and DW recalls that the accused and TE stayed overnight.[55] She saw the accused lying on the bottom bunk of the boys’ bed in their bedroom, bedroom 2. The accused asked her to get into bed with him. She recalls him touching her around the area of her vagina.[56]
[55] T23.26-30.
[56] T286.11-15.
There are other uncharged events in relation to DW. In late 1990, the move was made to Pemberly Avenue and SW recalls finding the accused and DW in a bedroom together. She asked the accused what was going on and the accused said that he was helping DW get changed.[57] There was “complaint” evidence as well. When she was about 22 years old, MW told her then partner MP of the fact that she had been raped on occasions by the accused and that he had held her arms in a particular way during those events. When she was 12 years of age, DW told a friend of hers that the accused had touched her when she was younger. In earlier evidence in another trial, DW said that the accused had kissed her.
[57] T31.18-30.
The prosecution also points to evidence given by KRM that the accused said to her, when discussing MW that he had “had three sisters” at the same time holding up three fingers.[58] This, according to the submissions of the prosecution shows that the accused had a sexual interest in each of the three sisters and supports the contention that the accused acted upon that sexual interest.
[58] T145.19-25.
The Director delivered a notice of intention to adduce evidence of discreditable conduct pursuant to s34P(4) of the Evidence Act dated 12 February 2014. Its contents are as follows:-
“NOTICE OF INTENTION BY THE DIRECTOR OF PUBLIC PROSECUTIONS TO ADDUCE EVIDENCE OF DISCREDITABLE CONDUCT
To: RJM
THE DIRECTOR OF PUBLIC PROSECUTIONS gives notice of the intention of the Director at trial to seek to adduce evidence of discreditable conduct of the accused, RJM, and provides the following particulars:-
1. The nature of the discreditable conduct:
Charged and uncharged acts of sexual misconduct.
2. The witness or witnesses from whom the evidence is to be led:
SAW;
KRM;
MLW;
DAW.
3. The use or uses of the evidence which are said to be permissible uses under s34P(2):
(a)Where relevant, the evidence of each act of sexual misconduct, whether given by the complainant or another party who witnessed the misconduct, stands as circumstantial evidence which demonstrates a specific sexual attraction to each individual complainant and a tendency for the accused to act in furtherance of that sexual attraction.
(b)Where relevant the evidence of each act of sexual misconduct establishes a sexual interest in each of the complainants because of their membership of a particular group, namely “three sisters”, as referred to by the accused. Each act of sexual misconduct is cross-examinable in support of the charges involving the other complainants in this context.”
No objection was raised by the accused in relation to the notice and it was not necessary for me to rule upon it.[59]
[59] R v M, BJ (2011) SASCFC 50.
The witnesses
Before turning to the complainant’s evidence, it is necessary to address the evidence given by SW, the mother of the complainants and TE, the eldest sibling of the complainants. SW gave evidence that she first became aware of the accused when TE started going out with him when she was 15 years old, in 1986.[60] He came to Mantissa Road.[61] She confirmed the sleeping arrangements at Mantissa Road and the contents of the various bedrooms, especially bedroom 3[62] and the dormitory bedroom 4.[63]
[60] T16.9-11.
[61] T16.14-16.
[62] Exhibit P2.
[63] Exhibit P2.
SW recalled that after the birth of S, the accused and TE visited regularly, usually on a Saturday afternoon and usually staying until 7:00 or 8:00 pm.[64] She confirmed that the accused would normally play with the other children: he would get footballs or cricket gear out and play with the children and that he played with all of the children both inside and outside of the house.[65] On Saturdays, when they visited, it was a very busy house. The other children had sporting commitments both Saturday morning and Saturday afternoons and SW had home duties. Her husband JW was a coach driver. He was absent often. She had a recollection of the cubby house in the rear yard of Mantissa Road. She recalled that the door of the cubby house could be locked. She recalled an event when the accused was in the cubby house with MW.[66] She could not get MW’s attention at the time when she was in the cubby house with the accused. She recalls a later occasion, when living at Pemberly Avenue when the accused asked to take MW to the park.[67] At the time, MW was 7 years of age.
[64] T22.6-13.
[65] T22.22-38.
[66] T28.17-23.
[67] T30.16-24.
SW specifically recalls an interaction between MW and the accused at the front of their home at Pemberly Avenue. She recalls that the accused gave MW a kiss on the lips and she recalls questioning the accused as to why he did that.[68] She recalls that the accused was very happy and was behaving in a quite excited state.
[68] T30.29-31.8.
SW also now recalls an interaction between her daughter DW and the accused.[69] This event occurred at Pemberly Avenue. SW was looking for DW and walked into her bedroom. DW was standing in front of the wardrobe and the accused was also in the room crouching down to her height. SW saw that the accused’s hands were on top of the legs of DW. It was late Saturday afternoon, almost evening. DW was wearing a t-shirt and her underwear. The accused was wearing jeans and a shirt. SW asked the accused what he was doing there and he said that he was helping DW get dressed. At that time, DW was about 4 or 5 years of age. SW said that DW did not need help to get dressed.
[69] T31.12-30.
SW recalled visiting the accused and TE at Tristania Street. She recalled that KRM and JE stayed overnight and also recalled that those two mixed with the accused more than the other children.[70] She also confirmed that MW and KRM went to Gepps Cross Girls High School which was only a 10 to 15 minute walk from Marmion Avenue.[71] All of the other children visited that house but MW stayed over on more than one occasion.[72] This occurred when she was 12 or 13 years of age and this was because she played in TE’s netball team as a fill in.[73] She also did babysitting of S.
[70] T33.6-11.
[71] T33.37-38.9.
[72] T38.19-20.
[73] T38.21-22.
In relation to the interaction with the other children and games, SW said that the accused played cricket and football with the boys but the girls would also join in. She said this would happen at the family home most of the time.[74] She said the only change in the relationship occurred after the accused commenced his relationship with KRM.[75]
[74] T40.4-8.
[75] T40.15-19.
In cross examination, SW confirmed that she had previously given evidence on a number of occasions in the Courts concerning these events. She was taken to her evidence in 2010 and confirmed that she gave evidence that she did not ever see the accused inappropriately touching her daughters.[76] She said that she also became aware that her granddaughter S made serious allegations of sexual impropriety against the accused in 1996 but she had not given any thought to his conduct prior to that time.[77] She said that when S made her allegations in 1996, she did not then recall the cubby house incident with MW and confirmed that the first time she mentioned the cubby house incident was on 17 May 2012 when she gave a statement to the police.[78]
[76] T46.21.
[77] T41.29-33.
[78] T48.2-49.32.
SW confirmed that she had never discussed any of the statements that she had made to the police with her daughter. She was not sure what she was thinking about when she remembered the cubby house incident but she was thinking about where events occurred and remembered the incident when she walked out of the house looking for MW and going to the cubby house.[79] She reasoned that at the time that it all occurred, she did not think the event was particularly significant and she only remembered the event when she was at home. She regarded the memory as significant and was bothered by it but did not tell the police until May 2012.[80] The memory did not revive as a result of being questioned by the Director or the police. This was despite the fact that when she gave her first statement in 2009, she was asked questions about the cubby house but this did not prompt her memory about the incident. It was as a result of speaking to the police that she thought about things more. She said that she was so busy with her family that she did not remember everything that was going on all at one time. It was only when she remembered it that she wondered whether it was something to do with MW and the accused being in the cubby house together.[81]
[79] T50.5-16.
[80] T54.31-33.
[81] T58.27-29.
SW was certain that the accused and TE stayed overnight.[82] She was now certain about this but she was not always certain. She confirmed that in May 2012 she was unsure whether the accused stayed over at the house. She said that her memory has changed because she can now remember an event where she was folding up sheets and blankets at their home and saying to TE that staying over was not so bad.[83] She only very recently recalled that event. It was a memory of them staying over after an engagement party.[84]
[82] T59.30-36.
[83] T24.28-T25.6.
[84] T60.1-61.13.
All that SW knew about S’s allegations were what was said to her by her daughter TE, the mother of S.[85] She knew that TE arranged for S to be seen by doctors and for a report to the police to be made.
[85] T63.5-13.
She said that she had made three or four statements to the police and she had been in Court four times, including for this trial.[86] She admitted that the process of meetings with the Director of Public Prosecutions in preparation of the trial has made her question herself about why she did not see what was happening. That process has helped her to remember things.[87] In relation to the cubby house incident, the only person who had spoken to her about it was a police officer and the speaking with the police officer, and later reflecting upon what was asked of her, triggered her memory.[88]
[86] T63.26-34.
[87] T63.35-64.9.
[88] T64.15-20.
I accept the whole of the evidence given by SW. In my opinion, she was an excellent witness. Her evidence was not shaken under cross examination. I found her evidence reliable, compelling, impressive and credible. She was in my assessment, a completely truthful witness who gave her evidence in an honest, even handed and straight forward manner. I accept her evidence beyond reasonable doubt.
TE
TE met the accused in August or September 1986 at the Downtown Arcade in Hindley Street, Adelaide.[89] She was 15 years of age and the accused was 23 years of age. She commenced living with the accused in November or December 1986.[90] She was then 16 years old. They first lived in a unit at Leader Street, Goodwood, near the Wayville Showgrounds but then moved to Tristania Street in July 1987 and lived there for two years.[91] Whilst at Tristania Street she gave birth to S and the accused is the father of the child. S was born in October 1987 and at that time, TE was 16 years of age.[92]
[89] T65.32-37.
[90] T65.38-66.4.
[91] T66.19-37.
[92] T66.38-67.9.
TE confirmed the content of exhibit P5 concerning the layout of the Tristania Street unit. She confirmed that she slept in bedroom 1 with the accused and S slept in their bedroom until she was about 4 months old. After that, S slept in bedroom 2.
In the lounge area, she said there was a lounge across the left hand wall opposite bedroom 1 and a lounge under the window at the front of the unit. There was a television on the bedroom 1 wall and there was a coffee table in the middle of the room. That coffee table was moved when S was born as it was made partly of glass. It was moved to the top left hand corner near the sliding door to the dining area. The lounge on the left hand wall opposite bedroom 1 was a three-seater. There was a two-seater lounge under the window.[93]
[93] T67.32-68.38.
During her relationship with the accused, he did not work. TE went back to work when S was about 18 months old. She worked in the same café at which she had worked prior to her pregnancy. She worked three days per week, full time, increasing to four, to five and sometimes six days per week about six months after going back to work.[94] Her work was mostly day time work but occasionally she did night time work.
[94] T69.
TE recalled being quite close to KRM at the time she lived at Tristania Street. She said that sometimes after visiting the family home, KRM would come back with she and the accused and stay at Tristania Street. She also recalls JE and KRM staying overnight and this occurred on more than one occasion. This occurred when they were together and separately.[95]
[95] T70.14-30.
When somebody stayed over, and this was after S was born, they slept in the lounge room as there was not another spare bed. She thought that anyone staying over slept on the three-seater lounge.[96]
[96] T71.17-24.
TE confirmed that the whole family visited the house at Marmion Avenue, Kilburn. Sometimes the whole family visited and sometimes they visited separately. She said that KRM, JE and MW stayed overnight separately.[97] Whoever stayed over at Marmion Avenue slept in bedroom 3.[98] She recalled MW staying over on weeknights when she and MW played netball together. She thought that this was on Tuesday or Wednesday nights. They played netball together for about a year and each netball season went for about four or five months. They played winter and summer netball together. Her recollection is that MW played at least two and perhaps three seasons of netball with her.[99]
[97] T73.1-20.
[98] Exhibit P6.
[99] T73.29-74.26.
She thought that MW was around 15 or 16 years of age at this time and the netball was always played at the same venue during the hours of between 7:00 pm and 9:30 pm.[100]
[100] T74.30-34.
Her recollection is that the whole family went to see the netball, MW, S, the accused and TE, and the accused would sit on the sidelines with S. At that time, MW’s high school was around the corner from their home in Kilburn and it was therefore convenient for her to get to school from the Kilburn house.[101]
[101] T75.2-9.
She recalls visiting the family with the accused at Mantissa Avenue on Saturdays. She confirmed that they would arrive after lunch most of the time and they would stay and have dinner and head home about 1 or 2 hours after dinner. After S was born they visited pretty much every Saturday. At that time, most of the siblings would be at the house at one time or other on a Saturday. She recalled her siblings might be out playing sport or visiting friends but they would always be home for tea.
TE recalled that on those occasions when they visited Mantissa Road, the accused often played cricket outside with her brothers and sisters and sometimes they would go across to the school to play sport. Her recollection was that the accused interacted with all of her siblings and she noticed that he would interact more with JE and MW. His interaction took place both inside and outside the house and her observation was that he got on with her siblings quite well. It was a busy house, because there were between eight and twelve people in the house on any given Saturday.[102]
[102] T76.
When they visited Mantissa Road, S would often have a sleep in bedroom 4 in a cot. Bedroom 4 was also called the dormitory.[103]
[103] T78.22-28.
She recalls that on one occasion, in November 1989, they stayed overnight at Mantissa Road because one of her girlfriends who lived nearby had become engaged and they had an engagement party. She recalls that the accused slept in bedroom 2 with her brothers and she slept in bedroom 3 with KRM. S remained in bedroom 4.[104]
[104] T78.29-76.6.
She recalls the family moving to Pemberly Avenue and this occurred when S was about 3 or 4 years old.[105] At that time she was living at Marmion Avenue, Kilburn and she does not have as clear a memory of visiting Pemberly Avenue as regularly as visiting Mantissa Road. She recalls that she travelled from Marmion Avenue to Glenelg for work and she worked many hours Monday to Friday and sometimes Saturdays. She started doing the Saturday shift when the family moved to Pemberly Avenue. The accused did not work.[106]
[105] T79.15-20.
[106] T79.25-80.15.
TE went to the beach with the accused and her siblings on more than one occasion.[107] She specifically recalled taking KRM and JE to the beach and also specifically recalled that there were occasions when only KRM came to the beach. Generally they went to the beach at Glenelg but also went to Henley and Grange after S was born.[108] They always took S to the beach and KRM would come to the beach when they lived at Marmion Avenue.[109]
[107] T80.16-23.
[108] T80.24-26.
[109] T81.7-8.
She recalls that six months prior to the end of her relationship with the accused, he had changed in his behaviour. He went out every weekend, started smoking and drinking and she knew the relationship was at an end. In February 1993 the accused moved out with KRM into a flat at Lockelys or Henley Beach. It was the accused who told her that he was moving out with KRM and this surprised and upset her and she was aware that KRM had been staying at their house for a couple of weekends beforehand.[110]
[110] T81.18-82.6.
TE saw KRM only twice after she moved in with the accused and this was generally on the occasions when she picked S up from the accused and she has not had much contact at all with KRM since that time.[111] From that time, their relationship as “half” sisters was at an end. For KRM, her relationship with the whole of her family was largely at an end from that time.
[111] T82.18-24.
TE said that she was aware of the fact of the sexual allegations made by DW and MW against the accused and she does not know any of the details of them.[112]
[112] T82.34-35.
TE confirmed that there was a breakdown in the family relationship once KRM had moved out with the accused and there was very little contact between TE and KRM over the years. TE recalls seeing KRM twice or three times over the last couple of years.[113]
[113] T84.10-12.
In 1996, S told TE the allegations that she made against the accused.[114] There was one weekend where she was supposed to be staying with her father but she refused to go. It was then that the allegations were made by her daughter against the accused and she found the allegations devastating. She took S to see a doctor and then took her to the police. She was not able to tell her own mother straight away what S was alleging and that took a couple of months. She eventually told her brother about the allegations but did not tell her step-father, JW.[115]
[114] T84.28-32.
[115] T84.36-85.13.
The accused was charged with offences in respect to S but those charges were withdrawn.[116] In 2008, S made TE aware that she wanted to recommence the proceedings against the accused. By this time, S was 21 years of age. She did not discuss this fact with either MW or DW but she was aware that S had a social relationship with JE (her uncle) and similarly with MW, DW, BW and KW.[117] TE was unaware if S had ever had a discussion with KRM about the matters and although she has regular contact with her siblings and her mother and step-father, and they are all in regular contact, no discussion has taken place in relation to the allegations made by S. The only discussions concerning legal proceedings and their recommencement have concerned Court dates and organising for children to be looked after.
[116] T85.14-20.
[117] T85.26-87.12.
She also became aware of MW’s allegations in 2008 because MW told her and she gave evidence in Court in 2012.[118] She was also told in 2008 by S that DW had made allegations against the accused. The accused is not discussed at any family gatherings and the topic of sexual abuse is not discussed, nor are the topics of evidence that have been given in Court.[119] She does not know any of the details of allegations made by KRM and she saw her recently at her grandfather’s funeral.[120] She may see her on other special occasions. She really does not have a much different relationship with KRM than has existed for many years since the late 1990’s.
[118] T88.24-31.
[119] T91.37-92.25.
[120] T93.1-12.
KRM
KRM gave evidence. She is known as RM and was diagnosed with Asperger Syndrome when she was 15 or 16 years of age. She gave evidence that Asperger Syndrome affects her ability to communicate with people. She tends to be very private and reclusive, she does not tend to speak up in public and she certainly does not tend to speak out in conversations.
When she was a child, teenager and a young adult, she did not speak up or speak out and she was quite reclusive. Now that she is older, she has learnt how to manage the difficulties caused by Asperger Syndrome.[121]
[121] T101.20-102.9.
KRM said that she commenced school when she was 5 years of age and was living at Salisbury North but she was not able to complete her formal schooling until she was 19 years old. The family moved to Mantissa Avenue when she was about 11 years of age and she lived there with all of her family, her siblings, her mother and her step-father JW. Her half sister KW was born some time after they began living at Mantissa Road. She is the second eldest after TE.[122]
[122] T102.10-103.14.
When living at Mantissa Road she changed rooms a few times. When she first moved in she slept with MW in bedroom 2 and they then moved into the dormitory which was shared (bedroom 4) with DW and KW. Later, she moved to bedroom 3 when she was about 13 years of age and this occurred when TE left home. Before that it was TE’s bedroom.[123]
[123] T103.22-104.17.
She said that she met the accused first when he came to visit at Mantissa Road and she thinks she was about 13 when that first happened. She recalled that TE and the accused were living somewhere in Goodwood and she cannot recall visiting them at Goodwood.[124] Her recollection is that TE and the accused visited the family at Mantissa Road before and after S was born. She was not very familiar with the accused before S was born but after that time she got on better with him and by the time that the accused and TE lived at Tristania Avenue, she had visited them quite often when she was about 13 and 14 years old.[125] She stayed overnight quite regularly.[126]
[124] T104.20-37.
[125] T105.19-106.10.
[126] T108.17-20.
She recalled that TE and the accused would come over for tea regularly on the weekends and they would arrange for KRM to stay for the weekend. She has some memory of staying before S was born but she has clear memories of staying after S was born and after S was sleeping in bedroom 2. When S was sleeping in bedroom 2, she slept on a makeshift bed on the lounge floor which consisted of a few blankets on the floor and then a sleeping bag on top of the blankets. She confirmed that on a couple of occasions, JE also came to stay and MW may have stayed there as well but she has no memory of that.[127]
[127] T108.38-110.7.
She described events that occurred at Tristania Avenue. She gave clear evidence that late one night she was watching television in the lounge room with the accused. TE had gone to bed early and she was sleeping in bedroom 1. She and the accused were sitting on the lounge and, as she described it, they were “joking about”. She was about 14 years of age. There were scrap pieces of paper on the coffee table in front of them and the accused started to draw pictures of male and female genitalia and breasts on the pieces of paper. The accused suggested that the pictures be put on an elderly neighbour’s doorstep but then said they would not do that because it would cause a heart attack.[128]
[128] T110.8-31.
KRM recalled that they were sitting on a two-seater lounge. Her recollection was that there were two two-seater lounges in the lounge area. This is different from the recollection of TE who said that there was a two-seater under the window and a three-seater against the wall. In my opinion, that difference in recollection does not affect, in any way, the credibility of the evidence given by either TE or KRM.[129]
[129] T110.36-111.16.
KRM gave evidence that they were sitting on the lounge that was alongside the wall and the television was straight across from them. She said that her response to the pictures was that she was giggling and laughing; she was 13 or 14 years of age at the time.[130]
[130] T112.3-7.
After he drew the pictures, the accused then put his arm around KRM’s shoulders and KRM did not feel right about him doing that and then put his arm off. He then put his arm back around her shoulder and this reoccured over and over again.
KRM felt uncomfortable because the accused was not her boyfriend and although she cannot recall saying anything about it, she became annoyed and sick of the attention and so she got up and said that she was going to bed.[131]
[131] T112.14-34.
She then went into the bathroom and got changed into a nightie and underwear and came back into the lounge room. The accused continued to sit in the lounge chair against the wall and when he did not move, she got into her sleeping bag and lay on the floor.[132]
[132] T112.35-113.17.
She said immediately after getting into her sleeping bag, and when she was lying facing the television, she could feel something behind her and she turned her head and saw the accused lying next to her on the floor. Her recollection was that there were no lights on in the room at that stage and there were just lights from the television. Her recollection also was that the sleeping bag was along the floor in front of the television in between the television and the coffee table and her head was towards the dining room end of the room.[133], [134]
[133] Exhibit P5/5A.
[134] T113.17-38.
KRM had a clear recollection that the accused was lying behind her and she was aware that he was only wearing his underpants. When they were sitting on the lounge, he had jeans on but she was not sure if he had a top on. She did not see him remove any part of his clothing.[135]
[135] T114.3-21.
KRM gave evidence that she told the accused that she was going to sleep now and that he said he should go to sleep too but she said that he could not sleep there. His response was that he could sleep there if he wanted to because it was his house.[136]
[136] T114.28-32.
He again put his right arm around her. He was lying on his left side. KRM tried to remove it again and he became quite annoyed. She recalled that he then said (between clenched teeth) and into her ear “don’t take it off, leave it there”.[137]
[137] T114.33-115.1.
At that time, she had pulled up the zip on the sleeping bag and it was a reversible zip. The accused was trying to pull the zip down but KRM was attempting to hold it up.[138]
[138] T115.2-7.
At that time KRM was confused. She did not understand why the accused was doing what he was doing because as far as she was concerned he was supposed to be with TE and he was TE’s boyfriend. She was therefore very worried and concerned.[139]
[139] T115.20-32.
There was a continuing struggle with the zip but eventually the accused was able to get the zip open and during the struggle, KRM attempted to get away from the accused but she was wedged up between him and the television at one point. The television did not move and it was still on. It was a free-standing television sitting on a cabinet.[140]
[140] T115.33-116.14.
After the accused got the zip open, he tried to get his hands to KRM’s breasts and she was trying to get him off her. He was also touching her vagina.[141]
[141] T116.15-27.
At this point, the sleeping bag was half on and half off and the accused did manage to touch her breasts but she cannot recall if it was with one or two hands. She was too busy trying to get him off of her. She cannot say if he touched one or both of her breasts but she does recall that he touched her over and under her nightie. She recalls that he was grabbing her breasts and rubbing and feeling them. He also touched her vagina over and under her clothing.[142]
[142] T116.22-38.
When he touched her vagina, he put his hands inside her underpants and put his fingers inside of her vagina, into the vaginal canal. She said that it felt uncomfortable and painful and she was trying to get him away from her as he was pushing his fingers into her vagina.[143]
[143] T117.3-118.19.
She tried to get his hands out from her underwear and they were moving around because she was trying to get away from him.[144]
[144] T118.13-26.
At the time, there was a door between the lounge room and the room in which TE was sleeping and she cannot remember if it was opened or closed. She did not call out to TE because she did not think of it. She also did not want TE seeing what was going on because that would have upset her.[145]
[145] T118.34-119.8.
KRM cannot remember how this event came to an end and her last memory was of him getting his hands inside her vagina and her struggling to get him off her.[146]
[146] T119.9-15.
KRM is unable to say what time of year the event happened and thought it probably happened on a weekend or during school holidays. On this occasion, no other siblings were staying over at Tristania Street on that night and at that time, S had been born. She was born in October 1987.[147]
[147] T119.16-27.
KRM said that after this event, her next recollection is waking up the next morning. The accused was not in the lounge room and she has no recollection of anything happening in the morning. She did not tell anybody about what had happened and it did not occur to her that she should tell anybody. There was no one there to tell. She really did not want to think about it because with her struggles, she thought that the accused got the message that he should not behave in that way any further.[148]
[148] T119.28-120.13.
KRM recalls that there were other occasions of harassment at Brooklyn Park. She tried to go to bed at the same time as TE but on another occasion after everyone had gone to bed, she had climbed into the sleeping bag and was sleeping on the floor of the lounge. She became aware that the accused came out of the bedroom and lay on the floor next to her in a similar position. Again there was a struggle with the zipper of the sleeping bag and the accused was attempting to get the sleeping bag off of her. Following a struggle, the accused removed the sleeping bag from her. They had been struggling around the floor more than the first time that the accused assaulted her.[149]
[149] T120.17-121.4.
The accused put his hands on her breasts and on her vagina.[150] The struggle continued and after he got the sleeping bag off her, the accused threw the sleeping bag away towards the dining room door. No loud noise was made, just the sleeping bag falling onto the carpet.[151]
[150] T121.6-8.
[151] T121.6-18.
At this time, the accused touched KRM’s breasts and vagina under and over her clothing and he held her breasts in the same way as previously.[152] He also touched her vagina in the same way by placing his hands inside her underwear and touching the inside and outside of her vagina.[153] At that time, she was wearing a nightie and underpants and the accused was wearing his underpants.[154]
[152] T121.19-26.
[153] T121.27-33.
[154] T121.34-38.
After the sleeping bag had been thrown across the room, the accused was trying to remove KRM’s underwear and he started to remove her underwear with his hands and then position himself between her legs and started to push her underwear off with his foot.[155] She recalls that she was half sitting and the accused trying to hold her down with both of her wrists/arms near her head and holding her down on the floor.[156] In that way, KRM was positioned underneath him on her back.[157] She was unable to recall whether she said anything to the accused and she cannot recall if he said anything to her. She was about 14 years of age at the time and this was all she could recall of this occasion.[158]
[155] T122.1-8.
[156] T122.11-14.
[157] T122.31-34.
[158] T122.35-123.5.
TE was in bedroom 1 at the time and she is unable to say whether the door was opened or closed.[159] She did not call out to TE because she did not want her to see what was going on and was worried about what TE might think about the event and that she would be upset and hurt.[160]
[159] T123.6-10.
[160] T123.11-18.
The reason that KRM continued to stay at Tristania Avenue was the same as it had always been. She wanted to see TE and she wanted to assist TE with babysitting S.[161]
[161] T123.25-30.
KRM cannot recall that anything different happened the next day.[162] She did not say anything to anyone that day or any day after that and as far as she was concerned it was not an option to speak about it because she did not want to think about it and wanted to forget about it. There was also no one around for KRM to speak to, to tell them what had happened. As well, she did not speak up or speak out about many things at that time. As far as she was concerned, it was not an option to tell anybody. Her feelings towards the accused were confused and she could not understand why he was doing what he was doing.[163]
[162] T123.36-37.
[163] T125.8-12.
After the move to Marmion Avenue, KRM stayed overnight at Marmion Avenue. There was a period of time when she tried to avoid the accused but she cannot say if she stayed at Marmion Avenue more or less than at Tristania Avenue.[164]
[164] T125.25-33.
KRM can recall other examples of the accused interfering with her. She recalls an example and she does not know where it occurred, that the accused grabbed her hand and put it on his groin. She does not know how many times this happened but she can recall one time clearly. This was at Mantissa Road in KRM’s bedroom. She was sitting on the bed and she cannot recall if the door was open or closed. It was daylight in the afternoon and she was about 14 or 15 years of age.[165]
[165] T126.5-127.13.
At both homes, they used to play ball games in the backyard. She recalls that when they were playing things like football or other similar games, the accused would tackle her in a touchy-feely way and touch her all over. He tried to make it look like a tackle but it was more and he would quickly touch or grab her breasts.[166]
[166] T126.8-27.
She recalls on one occasion they were playing hide and seek. The accused suggested that the backyard was out of bounds and as soon as everybody, being her brothers, sisters and some friends of the siblings went off to run and hide, he grabbed her wrists and pulled her around to the backyard. The accused pulled KRM into the cubby house and locked the door. On that occasion, the accused attempted to touch and feel her breasts and he was speaking about TE. He compared KRM’s body to TE’s body and she recalled trying to open up the lock of the door which was a wooden sliding lock to escape from the cubby house.[167]
[167] T127.28-37.
When these events occurred, they were sitting on a small table in the cubby house. The accused started to touch her vagina and tried to get his hands down into her vagina. Eventually she got the lock of the door open and ran out.[168] At that time, he was touching her breasts over and under her clothing.[169] He was grabbing and holding them. She recalls that the play table in the cubby house was an old-fashioned table with a wooden top and metal framed legs. She was sitting closest to the door and the accused was sitting on her left side and was reaching across at the door as they were struggling with it. All that she can recall being said in that cubby house incident was that the accused spoke and compared her body to TE’s body.[170] She was eventually able to get out of there after he put his hands down her underwear and touched her vagina.[171] Again, he touched her over and underneath her clothing but he did not insert his fingers into her vagina.[172] She was able to get his hands out of her underwear and get out of the cubby house.
[168] T128.11-24.
[169] T128.27-29.
[170] T129.5-8.
[171] T129.14-18.
[172] T129.19-29.
KRM said that after she managed to get the door open and get out of the cubby house, she ran inside the house and did not speak to anyone about what had happened. She did not think to tell anyone because she was just trying to get away. She was 14 years old at the time.[173]
[173] T129.36-130.8.
KRM visited the beach with TE, S and the accused on more than one occasion.[174] They would usually go to Glenelg or to Henley Beach. On one occasion she recalls that they were in the water, above their depth. TE was on the beach with S and KRM was in the water with the accused.
[174] T130.16-19.
While they were in the water and while they were some way out, the accused began touching and feeling her breasts and between her legs in the same sort of way.[175] There were other people in the water but they were a distance away from her and she was wearing bathers. The accused touched her over and under her bathers and he tried to get his hand in and under her bathers. He was able to push his fingers into her vagina but she cannot say how many fingers.[176] At that stage she tried to get away and eventually swam away. She was about 15 years old.[177] She can recall S was perhaps a toddler by that stage but she cannot recall if she was walking.
[175] T130.28-36.
[176] T131.16-23.
[177] T131.30-31.
After that time, KRM tried to see less of the accused. She was sick of the harassment and she said that she wanted things to seem like they were normal although she did try to keep in contact with her sister TE.[178]
[178] T132.11-17.
There were occasions when she visited TE at Marmion Avenue. It was a convenient place to go because it was only a few streets away from her school and her mother sent her there on occasions to pick up or drop off things to that house.[179]
[179] T132.21-35.
KRM recalled that on one occasion the accused was there in the lounge room and TE was not at home.[180] She had been at school that day and it was in the afternoon. She thinks she was about 17 years old at the time. She recalls the accused asking her to expose her vagina to him. He said words to her to the effect: “go on, MW does it... and she lays down there on the floor. She... pulls her knickers to the side and shows me.”[181] At that time he was demonstrating what he alleged MW was doing by pulling her underpants over. He was wearing jeans at the time.
[180] T133.6-9.
[181] T133.16-21.
At that time, they were in the lounge room. They were moving about the room and she cannot recall any particular spot in which that statement was made. She recalls that somewhere in the lounge room, the accused pointed to a particular spot and showed her where MW lays down to expose herself to him.[182]
[182] T32.38-134.20.
On another occasion, and on a different day, the accused said to KRM that he thought MW would make a good girlfriend.[183] This occurred after the incident where the accused asked KRM to expose herself to him and she recalls that she was in her late teens at the time.[184] This meant that MW would have been about 13 when the comment was made. No one else was present when the accused made the comment to her and KRM feared that there was something going on between the accused and MW because it was not right and suggested that the accused was looking at MW as his girlfriend.[185] This worried and concerned KRM.
[183] T134.21-24.
[184] T134.25-35.
[185] T135.10-17.
In her evidence, KRM agreed that she began living with the accused. At the time she was nearly 20 years old.[186] She turned 20 in March 1993 and she started living with the accused just before that time. She explained to me that she began living with the accused because she had concerns for MW who was only a young teenager and she was sick of the harassment that she was getting from the accused and was very upset about what he was doing to her siblings.[187]
[186] T136.3-6.
[187] T136.14-20.
She said that she had a plan to get the accused away from her family. In 1993, she recalled the accused saying to her that his relationship with TE was not going well and that he wanted to be with her (KRM) and he suggested that they move in together.[188] KRM’s plan was that she would go along with him, pretend to move in with him and thereby getting him away from her family.[189] The arrangements were supposed to be made in secret so that none of the family knew about it. Her plan was to get the accused to put his name on a lease of new premises, pay a bond and so that he could be “locked” in to the new premises. She would take along a couple of bags of her things and once they got there she would say that she was not going to move in with him and leave him there. He would then be out of the way and out of the family[190] because he would be bound to stay in the new premises away from her family.
[188] T136.21-24.
[189] T136.25-29.
[190] T136.31-137.5.
I therefore find the charge, as alleged on the Information, proved beyond reasonable doubt.
Count 3
I am satisfied beyond reasonable doubt of and make the following findings in relation to count 3.
1. On an occasion between 1 January 1987 and 15 March 1990 at Salisbury North, the accused was playing with the children at the Mantissa Road premises and were playing a game of hide-and-seek.
2. The accused proposed to the children playing the game that the backyard of the home was out of bounds.
3. After the game started, the accused grabbed KRM by the hands and pulled her into the backyard area (which he had announced was out of bounds).
4. The accused then pulled KRM into the cubby house area and locked the door behind them.
5. Whilst inside the cubby house, the accused touched the breasts of KRM. When he did so, he compared KRM’s body to the body of her sister TE.
6. When the accused was so acting, KRM was struggling with him and she was continually trying to open the lock of the door.
7. Whilst this was occurring, the accused touched the outside of KRM’s vagina and he continued to touch her breasts.
8. KRM continued to struggle against the accused and was able to open the door of the cubby house and leave the cubby house.
I am satisfied that the accused was not able to penetrate KRM’s vagina because she was able to exit the cubby house.
I accept the evidence of KRM when she says that the accused made the “out of bounds rule” in respect of the back of the house at Mantissa Avenue and took KRM to the cubby house at the rear of the backyard.[408]
[408] Exhibit P3.
Based upon the whole of the evidence I am satisfied that the following elements of the offences charged have been proved beyond reasonable doubt:-
1. The accused assaulted the complainant KRM by the application of force to her after he had pulled her into the cubby house area at the Mantissa Road premises. The touching by the accused was of the breasts of KRM and the outside of KRM’s vagina.
2. The touching of KRM by the accused was intentional and was not accidental.
3. The touching of KRM by the accused was without lawful excuse because at the relevant time the complainant KRM was aged between 13 and 15.
4. The touching of KRM by the accused was in circumstances of indecency because it was offensive to common propriety.
I therefore find that count 3, as alleged on the Information, is proved beyond reasonable doubt.
Uncharged acts
I accept the evidence of KRM in respect of the following uncharged acts beyond reasonable doubt:-
1. When they were playing at various ball games and mostly at the Mantissa Road premises, and particularly when playing a game like football, the accused would pretend to tackle KRM but would “feel her up” by grabbing her body and also grabbing her breasts; and
2. On another occasion when similarly, the accused and the children were playing in the yard at Mantissa Road, the accused grabbed the hand of KRM and put it on his groin; and
3. On a visit to the beach, in company with her sister TE and her niece S, when the accused and KRM were out in the water beyond their depths, the accused touched the breasts and vagina of KRM.
Count 4
Count 4 relates to an allegation against the accused of persistent exploitation of a child contrary to s50 of the Criminal Law Consolidation Act. The particulars of the offence are that between 11 November 1990 and 1 March 1993 at Kilburn over a period of not less than three days, the accused committed more than one act of sexual exploitation of MW, a person under the age of 17 years by inserting his penis into her vagina. On the basis of the evidence of MW, which I accept beyond reasonable doubt, In relation to count 4 I am satisfied that the following elements of the offences charged have been proved beyond reasonable doubt:-
1. In the period between 11 November 1990 and 1 March 1993 at Marmion Avenue.
2. MW commenced to stay overnight on occasions at the Marmion Avenue in her 13th and 14th years when she was playing netball with her older sister TE.
3. At that time, MW was attending Gepps Cross Girls High School and the Marmion Avenue address was only some ten minutes or so from the high school.
4. MW slept in bedroom number 3 at the Marmion Avenue premises.
5. The bed in the bedroom was situate against the adjacent bathroom wall. The door into the room was diagonally opposite the bed. The door of bedroom 3 opened into the dining room /kitchen area of the house.
6. On a number of occasions, and I am satisfied on not less than two occasions over a period of three to four months, MW woke up from her sleep in bedroom 3 with a male on top of her. The only male in the house was the accused.
7. On those occasions, and there were between 15 and 20 occasions, the male person had sexual intercourse with MW.
8. The offending occurred during the netball season in which MW played netball with her older sister TE, which was over a 3 to 4 month period.
At the time that the offending occurred, MW was 13 years of age and in year 8 at Gepps Cross Girls High School. She was not, as TE recalled, of the age of about 16 years.
On some of the occasions when the offending occurred, MW was awoken with the accused under the covers and on top of her. On other occasions MW became aware of the accused entering the room. It was usually in the early hours of the morning. On the occasions when she awoke with the accused on top of her and on the other occasions MW was unable to say whether the accused had any clothes on. It was dark.
During the acts of sexual intercourse, MW recalls that the accused held her wrists down and at or above her head and had sexual intercourse with her. She recalls suffering pain when his penis entered her vagina. The sexual intercourse lasted about 10 minutes.
MW was able to identify the accused from some significant features. The first was his odour from soap and aftershave which she said, and I accept, was distinctive. The second was his hairstyle which she identified when he left the room. He wore a “mullet” hairstyle. The hairstyle and profile of the accused could be seen in the doorway from a spill of light coming from the dining room/ kitchen area of the Marmion Avenue premises.
I reject any suggestion by the accused of the falsity of evidence given by MW. I accept beyond reasonable doubt the evidence that she has given, of the distinctive smell of the accused and that she could identify the accused through that distinctive smell. MW gave evidence of her limited ability to identify the accused visually and I have no doubt about her honesty and reliability, and I accept her evidence, beyond reasonable doubt, that she was identifying the accused.
I also find that the relevant offending occurred over the course of the netball season and I find beyond reasonable doubt that the accused had the opportunity and took the opportunity to offend against MW between 15 and 20 occasions after she had played netball with her older sister TE.
I also accept without hesitation the evidence given by MW that she was too scared to say anything to her older sister TE about the events and the things that were happening to her. If she had revealed the accused conduct, she would have to have revealed to her sister that her sister’s partner was having sex with her. This was very embarrassing and she decided to not say anything at all.
Based upon the whole of the evidence I am satisfied that the following elements of the offences charged have been proved beyond reasonable doubt:-
1. At the time of the alleged offences that took place between 11 November 1990 and 1 March 1993 and when the complainant MW was 13 or 14 years of age, the accused was between 27 and 30 years of age.
2. The alleged offences committed over a period of not less than three days. I am satisfied beyond reasonable doubt that the alleged offences occurred in a period of not less than three to four months during the summer netball season during which MW played netball with her sister TE.
3. The accused committed more than one act of sexual exploitation of MW. The act of sexual exploitation was the act of having sexual intercourse with MW between 15 and 20 occasions.
4. MW, was a child at the relevant time and was aged between 13 and 14 years and therefore was under the prescribed age of 17 years.
I therefore find that count 4, as alleged on the Information, is proved beyond reasonable doubt.
Counts 5 and 6
Under count 5, the accused is charged with indecent assault contrary to s56 of the Criminal Law Consolidation Act. The particulars of the offence charged are that between 13 July 1988 and 31 December 1990 at Salisbury North, the accused indecently assaulted DW. I am satisfied of the following matters, beyond reasonable doubt based upon the evidence of DW which I accept without reservation.
1.In the period between 13 July 1988 and 31 December 1990 when the accused was at Mantissa Road.
2.The relationship between DW and the accused at the relevant time was of a “big brother/little sister” relationship. In particular, the accused played with the younger children and spent the majority of his time with them.
3.The relevant activity occurred in bedroom 2, which was otherwise known as the ‘boy’s bedroom’.
4.The door between the hallway and the lounge room was closed.
5.DW was in her pyjamas as it was not long before bedtime.
6.DW and the accused were alone in bedroom 2.
7.The accused was standing in front of DW when he then touched her vagina and the area around her vagina, and this lasted for some minutes.
8.The accused asked DW if what he was doing hurt her and she said no.
9.The accused then said to DW that she should not tell anybody about what he was doing.
10.DW heard the door of the lounge room open and the accused then pushed her away telling her to get out of the room.
11.There was no discrepancy in the evidence of JE, SW and DW about where various bunk beds were in bedroom 2. Each have different recollections as to the position of the bunk beds and the evidence of SW which I accept was that the bunk beds were moved on at least one occasion.
12.DW did not want to think about the events that occurred and blocked out these events from her memory.
13.Although DW knew what had happened to her, she did not comprehend these events until she was about 10 years of age. At that time she received education at school about wrongful touching.
Based upon the whole of the evidence I am satisfied that the following elements of the offences charged have been proved beyond reasonable doubt:-
1. In the period between 13 July 1988 and 31 December 1990 at Mantissa Road.
2. DW and the accused were alone in bedroom 2 of the Mantissa Road house when the accused touched the vagina and the area around the vagina of DW.
3. The touching of DW by the accused constituted an assault upon DW.
4. The touching of DW by the accused was intentional and was not accidental.
5. The touching of DW by the accused was without lawful excuse. At the relevant time, the accused was an adult of between 25 and 27 years. DW was aged between 4 and 6 years.
6. The touching of DW by the accused was in circumstances of indecency. It is offensive to common propriety that an adult person in the position of the accused should touch the vagina and the area around the vagina of DW in the circumstances as I have found them to have occurred.
I therefore find that charge number 5 as alleged on the Information proved beyond reasonable doubt.
Count 6
The statement of offence under count 6 is indecent assault contrary to s56 of the Criminal Law Consolidation Act. The particulars of the offence that between 13 July 1988 and 31 December 1990 at Salisbury North the accused indecently assaulted DW.
I make the following findings based on the evidence of DW, SW and TE, which I accept beyond reasonable doubt:-
1.In the period between 13 July 1988 and 31 December 1990.
2.The accused and TW slept over on one occasion at the Mantissa Road premises. On that occasion, the accused and TE attended an engagement party of a friend in the local area.
3.The accused put in contest that he ever slept over at the Mantissa Road premises. I reject that contention.
4.On this occasion, the accused slept in bedroom 2 and the time that the accused and TW stayed over for the engagement party was about November 1989.
5.In November 1989, DW was about 6 years of age and I accept that the relevant event the subject of count 6 took place when DW was 6 years of age.
6.At about 7 or 8 am on the Sunday morning, the accused was sleeping in the bottom bunk of the beds in bedroom 2. The door to the bedroom was open and the curtains were open.
7.The accused was lying on the bottom bunk.
8.DW came to bedroom 2.
9.The accused invited DW to get into bed with him.
10.DW got into the bed and lay on her back.
11.Whilst DW was in the bed, the accused rubbed her in and around her vagina area.
12.The accused and DW were in bed for about 10 to 15 minutes. In that time, BW walked in and grabbed something and walked out. BW gave evidence that he cannot remember any event as described. Notwithstanding that lack of memory, I am satisfied beyond reasonable doubt that the event occurred.
13.The events all occurred in daylight hours with the curtains open and the door open.
I reject any assertion that it is utterly improbable that the accused would have been in the bedroom in those particular circumstances with DW in the bed. I accept the evidence of SW beyond reasonable doubt, that on 1 occasion at the Pemberly Avenue house (after 1990) she walked into one of the bedrooms and DW was in there with the accused. This was the occasion in which the accused told SW that he was assisting DW to get dressed. SW informed the accused that DW knew how to get dressed herself and he should leave the room. This relevantly demonstrated that on occasions when visiting the family home, the accused was prepared to take the risk of being alone with DW in a bedroom in the house. I accept this evidence not withstanding that DW does not recall any incident happening in a girl’s bedroom at Pemberly Avenue as described by SW. DW also gave evidence that on another occasion, the accused exposed his penis to her and grabbed hold of her hand and placed it on his penis. I have not used this information to reason in an impermissible way that because I am satisfied of those matters as having been proved beyond reasonable doubt that the accused is guilty of the offence charged. I am very mindful that this would be an impermissible method of reasoning.
On all of the evidence, it is clear to me that the Mantissa Road house as well as the Pemberley Avenue home were very busy and that JW was not present generally at the time that the children made visits to the home. This was because JW was a coach driver and he usually worked on weekends.
I also accept the evidence of SW that she could not supervise all of the children at the same time. She was busy preparing meals, doing all of the usual domestic duties as well as taking children to and from sports.
I also accept as proved beyond reasonable doubt that the accused did have unsupervised access to all of the children and that through his acceptance into the family he had gained their trust.
As I have accepted the evidence of KRM beyond reasonable doubt, I have also accepted the fact that the accused offended against KRM at the Tristania Street premises when TE was in the next room. He also offended against MW when TE was two rooms away and there were two doors between bedroom 3 and bedroom 1.
I am satisfied on the evidence which I accept beyond reasonable doubt, that the accused seized the opportunities he had to be alone with each of the complainants to commit the offences for which he has been charged. After he sexually assaulted KRM at Tristania Street, no complaint was made about his behaviour. He then continued to take further risks by offending against DW and MW.
Based upon the whole of the evidence I am satisfied that the following elements of the offences charged have been proved beyond reasonable doubt:-
1. In the time in or about November 1989.
2. The accused touched DW in the area in and around her vagina. The conduct of the accused constituted an assault upon DW.
3. The touching of DW by the accused was intentional and was not accidental. The rubbing by the accused of DW’s vagina occurred in circumstances where DW had been invited into the bed in which the accused was laying at the relevant time.
4. The touching was without lawful excuse. At the relevant time the accused was an adult aged between 25 and 27 years. DW was aged between 4 and 6 years.
5. The touching of DW by the accused was in circumstances of indecency because it was offensive to common propriety. At the relevant time the accused was an adult person and DW was a very young child.
I therefore find count 6, as alleged on the Information, proved beyond reasonable doubt.
Complaint evidence
Both DW and MW gave evidence of making a “complaint” in relation to the conduct of the accused. It is clear that a complaint can be in general terms but it must be referrable to the offence charged.[409] I accept the position that the fact that DW and MW did not tell anyone immediately is not of probative value in relation to their credibility or their consistency of conduct. Both of them explained why they did not complain or did not feel they could complain about the conduct of the accused. DW was told by the accused not to tell anyone what he was doing. At that time she said that she trusted the accused and did not really understand what he was doing.
[409] R v A (2012) 113 SASR 146 at [11]-[17]; R v S (2010) 109 SASR 46; R v El Rafai (2012) SASCFC 98 at [132].
MW gave evidence that she was confused and did not want anyone to blame her, particularly if the result was that her sister would have a breakup with her then boyfriend who was the father of S. She emphasised in evidence that she did not want S to go through her life without her father in the same way that she had not known her father.
In relation to MW’s complaints to MP in 2002, she said that he held her arms in a similar way to the way in which the accused held her arms after the times when he entered bedroom 3 of the Mantissa Avenue premises. It was also at this time that MW disclosed to MP that on more than one occasion, the accused had raped MW. I do not accept that evidence as the truth of the alleged acts occurring but I do accept that evidence as evidence of complaint pursuant to the relevant legislation.[410]
[410] Evidence Act, s 34M.
In my opinion, the evidence of complaint is also important for another reason. There is no evidence to suggest that in 2002 that S had been encouraging MW to speak to the police and make allegations. MP was the first person who MW told about these events and there is no evidence that MW had then had any discussions with S about the offending of the accused. The complaint also supports MW’s credibility in relation to the charge of persistent sexual exploitation of a child.
I have already briefly dealt with the question of the complaint made by DW to TS. There is a difference between their recollections. The first is that at a sleep over DW told TS that she had been touched by the accused. The clear memory of TS was that at a difference place she had been told by DW that the accused had kissed her. It has been put that it is not clear that DW and TS are referring to the same conversation. That well may be correct.
I accept the evidence of DW because it is reliable and it has the ring of truth about it. It is cogent and compelling. I therefore accept her evidence beyond reasonable doubt. In my opinion the differences in recollections are not material to my considerations here.
I found TS to also be a reliable and compelling witness. In the view that I have formed, the fact that there is a difference in memories between DW and TS does not affect my assessment of the reliability of the evidence of either witness. In the usual case, memories will differ on things that children aged about 11 or 12 say to each other. And it may be assumed that the issue and content of the complaint is more focused in the mind of the complainor that the complainee.
In my view, it is not necessary for me to attempt to resolve the difference between the complaint evidence of DW and TS. It is sufficient to say that I am satisfied beyond reasonable doubt that a complaint was made by DW to TS about the conduct of the accused that is the subject of counts 5 and 6 on the Information. The fact that there is a difference of memories between DW and TS has not diminished my preparedness to accept the whole evidence of DW as both reliable and truthful beyond reasonable doubt.
Cross admissibility
The prosecution refers to and relies upon R v Maiolo (no.2) at paragraph [138] et seq.[411] The first piece of evidence referred to on the topic of cross admissibility was the statement made to KRM by the accused that: “…I’ve had three sisters…” and he held up three fingers.[412] As the charges in counts 1 to 6 on the Information relate to KRM, MW and DW, it is to be understood that the reference to the “three sisters” is to those three women.
[411] 117 SASR 1 at para [138]-[168].
[412] T145.23-24.
KRM gave evidence that the accused was boasting about having had three sisters and appeared very proud of it.
The submission of the prosecution, following the decision of Peek J in R v Maiolo (no. 2) is that if it is accepted that the accused made this comment, it is a very important piece of evidence and is evocative, on the part of the accused, of a sexual interest in each of the three sisters. KRM did not mention this comment by the accused until May 2012. She explained in her evidence that the issue did not come up because it was not discussed with her. She can recall remembering this statement in the past but she put it out of her mind and tried not to think about it. It is also the case that the process of giving evidence in Court and the increased stress and focus of that experience means that, quite often, further details may be recalled.
The submission of the prosecution was that if KRM has simply made up the details about the comment, it was a very “restrained” lie. It was submitted that she could have incorporated into her evidence details about the offending against DW and she could have said that the accused admitted to having sexual contact with her sister. Rather, having regard to the accused’s comment, an inference arises and is to be drawn that the accused had “had them” in a sexual way. The nature of this comment, being a description of the accused’s behaviour gives KRM’s evidence a ring of truth according to the submission of the prosecution. It is a significant piece of evidence and when assessing whether the accused offended against MW, DW and KRM. It also, as the argument followed, made it more likely that the sexual offences did occur as each of the complainants stated in their evidence.
Secondly, the evidence of MW shows the carrying into effect of the accused’s interest in another one of the sisters. This makes it more likely, according to the argument, that he offended against KRM in the way that KRM has claimed. Therefore, the whole of the evidence of MW and KRM leads to it being more likely that the accused did make the “three sisters” comment.
Also, the combined effect of the evidence of KRM and MW make it more likely that the accused acted in a similar way with the third sister DW as DW has claimed. It was submitted that such activity with DW is a further manifestation of the accused’s sexual interest in all of the sisters. Also, the evidence of DW makes it more likely that the accused did have a sexual interest in all three sisters and was likely to engage in sexual conduct with each of the three sisters.
Further, it was submitted that the accused’s desire to boast to KRM was consistent with his behaviour in the cubby house when he compared her body to TE’s and when he asked KRM to expose her vagina in the same way as MW.
In relation to the specific comments about MW, the occasion when the accused wanted KRM to expose herself to him at Marmion Avenue including the level of detail as provided by KRM in her evidence, is indicative that she was recounting an actual experience. As the argument proceeds, it is to be recalled that at this time, KRM was trying to avoid the accused so he may have resorted to this type of behaviour to try to get her to engage in further sexual acts. Also, the accused told KRM that MW would make a good girlfriend, that he had sex with MW and he was concerned that she might get pregnant. This also included describing MW’s body to KRM in intimate detail, such as describing her breasts and her pubic hair.
It was argued that these comments support MW’s account that the sexual assault occurred and if it is accepted that MW was assaulted, it reinforces KRM’s credibility with respect to the sexualised comments that he made and so also strengthens KRM’s credibility generally.
I accept the submissions made by the prosecution. Those submission follow upon and take guidance from the judgment of Peek J in R v Maiolo (No. 2). Based upon that decision, it is my opinion that in this action there are significant aspects of cross admissibility of evidence as I have already set out. Notwithstanding, it is my opinion that it is unnecessary for me to embark upon a consideration of the question of cross admissibility. I have decided that I am in a position to accept beyond reasonable doubt the evidence of each complainant independently of the other. I am satisfied that each charge on the Information against the accused has been severally proved beyond reasonable doubt. I have therefore reached the position where although aspects of cross admissibility are available to me in the process of arriving at my decision in this matter I do not need to have regard to them in order to reach my decision. That said, I again remind myself that it would be wrong for me to conclude from the conduct of the accused that he is the sort of person who would be more likely to commit the offences with which he is charged.
In the approach that I have taken, I have not reasoned from a finding of guilt on one count that the accused was the sort of person who would offend against each other of the complainant and is therefore likely to be guilty on any other account. I have reminded myself of that propensity warning when considering each count separately.
Uncharged acts
I have identified the specific uncharged acts referred to by the prosecution.
The evidence of the uncharged acts along with the evidence going directly to the charges can be used by me in determining what, if any, weight I am prepared to place on the complainants’ evidence. The evidence might assist me in concluding whether a complainant’s evidence is reliable. Alternatively, it may assist the defence in showing inconsistency, unreliability or inherent improbability in the evidence thereby raising doubts about the charges.
The evidence of the uncharged acts could be used to assist in explaining the background in which the offences came about and I have decided that I would only use the evidence of the uncharged acts where I am satisfied beyond reasonable doubt that the particular act occurred.
I remind myself that it would be wrong for me to conclude from the other conduct of the accused that he is the sort of person who would be more likely to commit the offences with which he is charged. Ultimately, it is upon the evidence in relation to the charges themselves which I must render my decision.
For the reasons that I have set out, I am satisfied that the uncharged acts are all proved beyond reasonable doubt and I am also satisfied that the evidence in relation to those acts assists in explaining the background of how the offences came about.
I have used the evidence of the uncharged acts relating to each of the complainants only to assist me in assessing the credibility of the complainants’ evidence. I have not used the uncharged acts by any complainant in my assessment of the credibility of any other complainant. In my opinion that would be an impermissible use of uncharged acts.
Exhibits P8 and P9
Within these reasons, a number of references have been made to the contents of exhibits P8 and P9 which are redacted copies of the evidence of the accused given in earlier trials involving some or all of these charges. In the end, the usefulness of that evidence was curtailed, in part, by the fact that in this proceeding, the accused elected not to give evidence (as was his right) and hence no opportunity arose for cross examination of him. The status of the exhibit is that it records, inter alia, the matters upon which I have already made comment earlier in these reasons and also it contains denials by the accused of the allegations made against him by the complainants.
In reaching my decision about my verdict in this matter, I am cognisant of and I have taken into account the fact of those denials. Notwithstanding, I am satisfied that I am in a position to reach my decision in relation to whether (or not) I am satisfied that each count on the Information has been proven beyond reasonable doubt. I have now done so having given due consideration and weight to the fact of those denials made by the accused.
Verdict
I find the accused guilty of counts 1, 2, 3, 4, 5 and 6.
(1)Subject to the provisions of this Act, charges for two or more offences may be joined in the same information if those charges are founded on the same facts, or form, or are a part of, a series of offences of the same or a similar character.
(2)Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of the information.
(2a)Despite subsection (2) and any rule of law to the contrary, if, in accordance with this Act, 2 or more counts charging sexual offences involving different alleged victims are joined in the same information, the following provisions apply:
(a) subject to paragraph (b), those counts are to be tried together;
(b) the judge may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim.
(3)This section does not affect any other provision of this Act or any other Act permitting more than 1 charge to be joined in the same information.
(4)In this section—
sexual offence means—
(a)an offence against section 48, 48A, 49, 50, 56, 58, 63B, 68 or 72; or
(b)an attempt to commit, or an assault with intent to commit, any of those offences; or
(c)a substantially similar offence against a corresponding previous enactment; or
(d) an offence against the law of the Commonwealth, another State or a Territory corresponding to an offence referred to in a preceding paragraph.
50—Persistent sexual exploitation of a child
(1)An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
Maximum penalty: Imprisonment for life.
(2)For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.
(3)If—
(a) at any time when an act of sexual exploitation of a child was allegedly committed the child was at least 16 years of age; and
(b) the defendant proves that he or she believed on reasonable grounds that the child was of or over the prescribed age at that time,
the act of sexual exploitation is not to be regarded for the purposes of an offence against this section.
(4) Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:
(a)subject to this subsection, the information must allege with sufficient particularity—
(i)the period during which the acts of sexual exploitation allegedly occurred; and
(ii)the alleged conduct comprising the acts of sexual exploitation;
(b)the information must allege a course of conduct consisting of acts of sexual exploitation but need not—
(i)allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or
(ii)identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;
(c) the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person—
(i)in relation to the child who is allegedly the subject of the offence against this section; and
(ii)during the period during which the person is alleged to have committed the offence against this section,
must be charged in the alternative.
(5)A person who has been tried and convicted or acquitted on a charge of persistent sexual exploitation of a child may not be convicted of a sexual offence against the same child alleged to have been committed during the period during which the person was alleged to have committed the offence of persistent sexual exploitation of the child.
(6) This section applies in relation to acts of sexual exploitation of a child whether they were committed before or after the commencement of this section.
(7)In this section—
prescribed age, in relation to a child, means—
(a)in the case of a person who is in a position of authority in relation to the child—18 years;
(b)in any other case—17 years;
sexual offence means—
(a)an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
(b)an attempt to commit, or assault with intent to commit, any of those offences; or
(c)a substantially similar offence against a previous enactment.
(8)For the purposes of this section, a person is in a position of authority in relation to a child if the person is—
(a) a teacher (within the meaning of the Education and Early Childhood Services (Registration and Standards) Act 2011) engaged in the education of the child; or
(b)a foster parent, step‑parent or guardian of the child; or
(c) a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) providing pastoral care or religious instruction to the child; or
(d)a medical practitioner, psychologist or social worker providing professional services to the child; or
(e) a person employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or any other person engaged in the administration of those Acts, acting in the course of his or her duties in relation to the child; or
(f) an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).
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