R v MD - [2025] SADC 44

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MD
Criminal Trial by Judge Alone
[2025] SADC 44
Reasons for the Verdict of her Honour Judge Tracey
30 April 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is charged with one count of the sexual abuse of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
It is alleged the accused sexually abused his ex-sister-in-law, KL, in 1973, when she was eight years old.
The accused elected for trial by judge alone.
Verdict: Not guilty.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) s 34CB and s 34M(4), referred to.

R v MD
[2025] SADC 44
Introduction:

MD (the accused) is charged on an Information dated 25 August 2023 with the following offence, allegedly committed against his ex-sister‑in‑law, who I will refer to as KL, when she was a child:
Count 1:
Offence Details:
Sexual Abuse of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars
[MD], between the 31st day of December 1972 and the 1st day of January 1974 at Edwardstown and other places in the said State, maintained an unlawful sexual relationship with [KL], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
a) Causing [KL] to touch his penis on more than one occasion; and
b) Touching [KL]’s vagina with his penis.
Elements of the Offence
The prosecution must prove each of the following elements, beyond reasonable doubt:
(1)The accused knowingly maintained a relationship with KL during the period in which the particularised unlawful sexual acts occurred.
(2)The accused engaged in two or more unlawful sexual acts with KL in the course of the relationship.
(3)The accused was an adult during the period in which the particularised unlawful sexual acts occurred; and
(4)KL was a child under the age of 17 years during the period in which the particularised sexual acts occurred.
The accused pleaded not guilty to the charge and elected to be tried by judge alone.
The issue in dispute was whether any of the alleged unlawful sexual acts occurred. An ‘unlawful’ sexual act is an act that constitutes a sexual offence.
A ‘sexual offence’ is defined as:
(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.
There was no dispute, and I am satisfied, that during the relevant period, the accused knowingly maintained a relationship with KL. There was also no dispute that the acts which the accused is said to have engaged in are properly characterised as unlawful.
Prosecution Case:
On the prosecution case, the alleged offending occurred in 1973 when the accused was aged 21 and KL was eight years of age, having been born on 12 January 1965.
KL was raised by her mother SG, after KL’s father, AG, left the family home when KL was around four years of age. KL has two older siblings, a sister SL, and a brother, PL.
SL and the accused were married on 8 January 1971 and had three sons, MW, born on 8 March 1970, BW, born on 17 April 1972 and SW, born on 8 November 1974.
In 1973, after KL turned eight years old, there were occasions where the accused picked her up from her home on Strathcona Avenue, Panorama (Panorama house) and would take her back towards his house, in Edwardstown.
It was alleged that there were at least two occasions where the accused stopped the car he was driving near a reserve or a playground. KL was in the front seat and the accused’s two sons were in the backseat. The accused exposed his penis and put KL’s hands on his penis for her to masturbate him. The accused ejaculated on each occasion.
Another occasion of sexual abuse occurred when KL was home alone at the Panorama house. The accused entered her house, lay her on the floor in the lounge room, lifted her dress, removed her underwear and then gyrated on her for some minutes, rubbing his penis against her vagina.
KL did not tell anyone about the sexual abuse that was alleged to have occurred in 1973 until her mother passed away in 2022. She complained to her husband TC, on the night of her mother’s funeral, on 10 May 2022.
General Directions:
I direct myself as follows:
·The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt.
·The burden of proving the charge lies wholly on the prosecution and the accused is not obliged to prove anything. I must be satisfied that the prosecution has proved beyond reasonable doubt each element of the offence.
·At all times, it is for the prosecution to satisfy me that KL was an honest and reliable witness, beyond reasonable doubt.
·The accused elected to not give evidence and remained silent in court. He was not bound to give evidence and had the right to decline giving evidence. I must not draw any adverse inference against him on or in the case he puts forward, from the fact that he exercised that legal right.
·I must assess each witness as to their truthfulness and reliability and determine whether I can rely on the evidence of a witness. I can reject or accept all or part of a witness’ evidence.
·KL gave evidence with special arrangements in place. I must not draw an adverse inference against the accused because of those arrangements, nor allow them to influence the weight I give that evidence.
·The unlawful sexual acts which form the basis of the charge are alleged to have occurred between the 31 December 1972 and the 1 January 1974. The accused was not arrested in relation to the matter until 30 November 2022, over four decades later. I am satisfied that this period has resulted in a significant forensic disadvantage to the accused. Accordingly, I direct myself in accordance with s 34CB of the Evidence Act 1929 (SA). I have taken this forensic disadvantage into account when scrutinising the evidence and in assessing whether the prosecution has proved each element of the charged offence beyond reasonable doubt. I will address the specific nature of the forensic disadvantage to the accused later in these reasons.
·During cross-examination, the defence raised that there was a potential motive for KL to lie, due to her response to the breakdown in relationship between SL and the accused, which led to SL subsequently losing custody of their children. It is not for the accused to provide a motive for KL to lie. I direct myself that the absence of evidence of a motive to lie does not strengthen the prosecution case; it is neutral.
·The prosecution led evidence of the KL’s complaint to her husband TC. I direct myself in accordance with the requirements of s 34M(4) Evidence Act 1929 (SA), that evidence of complaint is not admitted as evidence of the truth of what KL alleged, but rather to inform as to how the allegation first came to light and as evidence of the degree of consistency of her conduct.
Agreed Facts:
The following facts were agreed:
1.The accused was born on 26 December 1951.
2.The accused commenced an apprenticeship as a butcher with SAM Pty Ltd (South Australian Meats) on 20 July 1968.
3.SG and AG became the registered proprietors of [the Panorama house] on 9 August 1968.
4.The accused and SL met during 1969.
5.In 1969, SL fell pregnant. SG would not let SL live at home, at Panaroma, with her or SL’s siblings.
6.SL lived with a family at Beaumont, South Australia while she was pregnant.
7.MW was born in 1970. Following his birth, MW lived at the ‘Kate Cox Baby Home’ for a few months.
8.The accused married SL on 8 January 1971.
9.AG sold his estate and interest in [the Panorama house] to the Bank of Adelaide on 1 July 1971.
10.The accused had his employment as an apprentice butcher assigned from SAM Pty Ltd (South Australian Meats) to Coles New World Supermarkets on 14 March 1972.
11.The accused and SL became the registered proprietors of [the Melville Avenue, South Plympton property] on 23 February 1973.
12.SG was the sole registered proprietor of [the Panorama house] on 20 March 1973.
13.SL was admitted to Glenside Psychiatric Hospital on 5 March 1975. She remained at the hospital for six months. Prior to her admission, she was ‘certified’ by her general practitioner.
14.On 8 November 1974, the accused and SL had their third son, SW.
15.The accused and SL were the registered proprietors of [the Melville Avenue, South Plympton property] from 23 February 1973, until 6 October 1975, when [RRT] became the registered proprietor.
16.On 1 May 1975, SL was admitted as an inpatient at the Glenside Psychiatric Hospital. SL remained detained at the Glenside Hospital until September 1975.
17.On 9 October 1975, the accused and SL became the registered proprietors of [De Laine Avenue, Edwardstown, property].
18.On 9 September 1976, SL was admitted as inpatient at the Glenside Hospital. She was discharged from the Glenside Hospital in or about December 1976.
19.The marriage of the accused and SL was formally dissolved on 3 October 1978.
20.SG sold the [Panorama house] in 1998.
21.The accused has no criminal history.
Witnesses
The prosecution called evidence from KL, her husband TC, and the investigating officer, Detective Katie Banks.
The defence called evidence from DD, a friend of the accused.
Evidence of KL
KL was 59 years of age when giving evidence. She has been married to TC since 1987 and together they have an adult daughter. Her mother, SG, had died on 27 April 2022. Her sister SL was born in 1952, and her brother, PL, was born in 1955 and is now deceased.[1] When KL was four years old, her parents separated.[2]
[1] T 6.28 – T 6.36.
[2] T 7.06 – T 7.08.
In 1969, when she was four years of age, KL commenced prep at Clapham Demonstration School where she continued until year seven.[3] The school was directly across the road from the Panorama house. After year seven, she attended Daws Road High School.
[3] T 8.32 – T 8.35.
KL said that she first met the accused in 1967 when he was going out with SL. He regularly visited the Panorama house. In 1970, SL and the accused had their first child, MW. SL was 17 years of age at the time and moved out of the family home to the Kate Cox Baby Home. The accused was living at home with his parents, until he and SL got married and subsequently moved in together.[4]
[4] T 11.05 – T 11.08.
After SL and the accused were married, they would come with MW to the Panorama house for visits. KL recalled going to their house in Edwardstown. KL said that SL and the accused had lived in two houses in Edwardstown. One house was on De Laine Avenue, but she could not recall the address for the other house.[5] KL said she continued to see the accused at family events. To her, the accused was her ‘big brother-in-law’ and she loved him like she loved her sister.[6]
[5] T 11.36 – T 11.38.
[6] T 13.01 – T 13.02.
In 1972, SL and the accused’s second son, BW was born. At the time, KL was seven years old and in year two at school. She would walk home from school alone as her brother, PL attended a different high school. No one would be home upon KL’s arrival as her mother would be working until 5.30pm.[7]
[7] T 13.31.
After BW was born, SL and the accused moved to Victor Harbor, and KL would visit at times.[8]
[8] T 14.15 – T 14.17.
At times, SG would take KL to SL and the accused’s house on De Laine Avenue in Edwardstown. KL said that on more than one occasion, the accused picked her up from the Panorama house and took her back to the De Laine Avenue house.[9]
Masturbation in the Accused’s Car
[9] T 15.10 – T 15.18.
KL recalled that the accused always had the same car which she described as ‘a Hillman perhaps’, that had two tones of blue on the side panel.[10] She could recall the smell of the car, which she described as ‘when you have a heated car in the old days and the temperature in the car got so hot that it made the upholstery smell’.[11] She always sat in the front seat of the car and recalled that the back seat was a ‘bench seat’.[12]
[10] T 15.23.
[11] T 16.11 – T 15.13.
[12] T 16.15.
On three occasions, the accused drove KL to a park or a playground and got her to masturbate him.[13] Those occasions occurred in 1973, when she was eight years old and in year three at school.
[13] T 16.38.
Two of these occasions occurred in Edwardstown in very close proximity to where the accused was living at De Laine Avenue, and a third occasion occurred in Colonel Light Gardens, closer to where she was living at the Panorama house.[14]
[14] T 18.15 – T 18.20.
KL said that she could not recall the three occasions in sequence,[15] however recalled that the accused would tell SG or SL that he was taking MW and BW to the playground. MW and BW were strapped in their car seats in the back of the car, and KL sat in the front seat.[16]
[15] T 17.02.
[16] T 17.05 – T 17.08.
On arrival at a playground or a park, the accused would always park on the street, before pulling KL across the seat. He would undo his trousers or shorts, before putting her hands on his penis, and encouraging her to masturbate him. KL said that she masturbated the accused on the three occasions, with the accused ejaculating each time.[17]
[17] T 17.08 – T 17.13.
The only thing she could recall the accused saying to her, was on one occasion when she was talking to the children in the backseat to distract herself, and the accused told her not to talk to them.[18] KL could not recall what the accused was wearing on any of the occasions where she masturbated the accused in his car.
[18] T 17.25 – T 17.27.
She saw the accused’s penis on the first occasion she masturbated him, but she could not recall if she saw his penis on the second and third occasion, as she was then aware of what she was going to see, and she did not want to see it.[19]
[19] T 18.34 – T 19.02.
KL was shown a photograph, Exhibit P1 which she said showed her brother and sister holding MW and BW at her aunt’s house at Rostrevor at BW’s christening in 1972.[20] She said the car in the background of the photo was the accused’s car, which she had previously described as the car in which the masturbation took place.
Lounge Room at Panorama
[20] T 21.14 – T 21.16.
KL described an occasion when the accused rubbed his penis against her vagina when she was home alone after school and waiting for her mother to come home from work. She said this happened when she was eight years old, in 1973, and in year three at school.
She said:
…after school I would go home and be at home waiting for my mum to come home and on several occasions [MD] would come and knock on the front door and one day I - I don't know whether I actually let him in or whether he got in somehow, and he - I was watching television and he undressed me and lay me down on the carpet in the lounge room in front of my mum's dresser. And I'm not sure if he took down his pants or just undid them. And then he was rubbing his penis on my vagina. And rubbing himself all over me. [21]
[21] T 19.08 – T 19.17.
She recalled that on this occasion she was wearing a dress and underwear. The accused took off her dress and pulled down her underwear below her knees.[22] She could not recall whether the accused took his pants off or just undid them. KL said that the accused’s penis was fully exposed, and the contact was skin-on-skin for about 10 to 15 minutes.[23] The accused did not ejaculate, but as he was finishing, he told her that she was not to tell anyone about what happened.[24] This incident in the lounge room incident occurred after the three occasions of masturbation in the accused’s car.
[22] T 19.20 – T 19.22.
[23] T 19.38.
[24] T 20.04 – T 20.11.
KL described the lounge room at the time the incident took place. She said there was a dresser, lounge suite, two armchairs, a settee, television, gold carpet and venetian blinds in the room.[25] On the dresser, her mother had her silver tea set, a plate set from England and two decanters.
Complaint
[25] T 22.34 – T 22.36.
KL said that she never told SG what happened with the accused. The first person she told was TC, on 10 May 2022, the night of SG’s funeral.[26] She said on that night that ‘it just came bubbling out’.[27] She told TC that she had something to tell him, and that he was going to be very cross. He replied ‘You just have to tell me. I won't be cross. It doesn't matter’.[28] KL said to him that ‘[SL's] husband had molested me when I was a little girl’.[29] After quite a pause, TC told her that they would work through it together and that he wasn’t cross.
[26] T 25.26 – T 25.34.
[27] T 27.14.
[28] T 26.21 – T 26.23.
[29] T 26.31 – T 26.34.
While KL said that she had not told her husband everything that the accused did to her, she had told him that some things happened in a car and something happened in front of the dresser, but she gave no other details.[30]
Cross-examination
[30] T 27.04 – T 27.11.
In cross-examination, KL said that the accused and SL lived in two addresses in Edwardstown, on De Laine Avenue and another house.[31]
[31] T 33.15 – T 33.16.
When interviewed by police on 19 October 2022, KL had told police that the accused was living at De Laine Avenue in Edwardstown in 1973. She had not mentioned a second address in the interview and conceded that the first time she mentioned two addresses was in court.[32] KL said that she could not recall a specific address of the second house, however she did have a specific recollection of a house.
[32] T 33.34 – T 34.18.
KL said that Exhibit P1 was taken in 1972. She said that the three occasions of masturbation in the accused’s car, occurred in the car depicted in the background of Exhibit P1.[33]
[33] T 30.02 – T 30.07.
KL said that she believed all her sister’s and the accused’s children had been christened, but conceded that she had no recollection of attending their christenings and agreed that there was nothing about Exhibit P1 which indicated it was a christening occasion.[34] At best the photo showed that everyone was dressed up. KL said that she did not know when Exhibit P1 was taken, who took the photo, or if there was any connection between the photo and BW’s christening.
Masturbation in the Car
[34] T 32.24 – T 32.35.
On all three occasions in the car, MW was sitting behind the accused, and BW was sitting behind her on the passenger side.[35] She recalled both children were strapped in the back of the car, with seatbelts, and that MW was in a booster seat. When pressed on the question of whether the vehicle had seatbelts in 1973, KL said ‘they couldn’t move, I know that much’.[36] KL agreed that in her interview with police on 19 October 2022 she said the boys were ‘strapped in the back of the car’[37] and that she had ‘a very clear recollection of them being strapped into their car seats’ whilst she was turning around from the front seat to distract herself from masturbating the accused.[38] KL said that her recollection remained consistent with her police interview. While she could not recall further details about the straps or the car seats, she said she had a very clear recollection of both children being strapped into their car seats.[39] While KL conceded that it was possible that there were no car seats in the car, she maintained that the boys were not moving in their positions whilst in the accused’s car. KL said that while she had told the police that she remembered the colour of the car to be pale blue with a dark blue panel on either side, she could be mistaken about this.
[35] T 38.03 – T 38.07.
[36] T 35.27.
[37] T 37.02 – T 37.04.
[38] T 37.25 – T 37.28.
[39] T 38.17 – T 38.20.

KL agreed during cross‑examination that she had not taken any steps to try and find out the location of the parks where the accused had taken her. She said that the accused was living on De Laine Avenue in Edwardstown. When told that the accused was living on Melvin Avenue in South Plympton between 23 February 1973 and 8 October 1975, KL conceded that she ‘might have got that wrong’,[40] but that she had been only a ‘very little girl’.[41]
[40] T 46.02.
[41] T 46.04.
KL agreed that she had told police that the accused would take her to various parks around Colonel Light Gardens and Edwardstown. When asked why she had nominated Colonel Light Gardens and Edwardstown as being the location of these parks, KL said, ‘…the park was not far from my home at Panorama and the ones in Edwardstown, South Plympton and Edwardstown are neighbouring suburbs’.[42]
[42] T 46.29 – T 46.31.
When asked by defence counsel whether she had mentioned South Plympton to anybody until it had just been put to her, KL said, ‘No, but that is why I said Edwardstown because I remember being in Edwardstown’.[43]
[43] T 46.37 – T 46.38.
KL described the park where the first event occurred as a ‘basic lawned park with a slippery dip, a swing and not much else’.[44] There were no distinguishing features between the parks, and the details of each masturbation occasion were the same, that is, the boys were strapped in back, there was no talking, her hands were forced onto the accused’s penis and the accused ejaculated.[45]
[44] T 47.06 – T 47.07.
[45] T 47.20 – T 47.22.
KL agreed that the accused had no guarantee that she would not say anything to her sister or mother.[46] She said that she chose not to say anything or show any signs of distress, as she was scared of getting into trouble. She said she did not feel scared to get in the car with the accused after the first occasion of masturbation in the car, as she trusted him, and she hoped it would not happen again. KL said that on the second occasion, she knew the accused ejaculated, as she ‘had wet sticky fingers’ and still struggles with having wet sticky fingers.[47] On each occasion, she had wiped the semen onto her clothing. She remembered the accused grunting when he ejaculated.
Lounge Room at Panorama
[46] T 48.14.
[47] T 49.15 – T 49.16.
With respect to the occasion in her lounge room at the Panorama house, KL said she did not recall how the accused managed to get into the house but recalled that it was after she had walked home from school. She said that if she did not answer the front door, the accused would go around the back and try the door handles and she would be hiding inside, saying nothing, as she was frightened of him.[48]
[48] T 53.22 – T 53.26.
KL said the accused tried to get into her house in this manner on four occasions.[49] On each of these occasions she was home alone and there would be no cars at the house as PL and SG were both at work. The accused would knock on the front door, then go around to the other doors, whilst looking through the lounge room window. KL said that she had multiple hiding spots, such as having her back towards the front door, in SG’s bedroom underneath the window, and in the laundry.
[49] T 54.21.
On the last occasion, the accused got inside the house, but KL did not recall how. She conceded that she ‘could have let him in the front door’, although she did not believe she would have done so.[50] KL said that she was in the lounge room, when the accused took her dress off and exposed his penis. He then gyrated himself with his exposed penis on top of her, without ejaculating.[51]
[50] T 56.09.
[51] T 57.18 -T 57.24.
KL agreed that she had said in evidence that after this occurred, the accused told her that she was not to tell anyone, while in her police interview, she had said that she could not recall what the accused said to her, and that he ‘might have’ told her not to say anything.[52] KL conceded that she had no specific recollection of the accused telling her not to say anything, on any of the occasions.
Complaint
[52] T 65.17 – T 65.19.
The first time KL disclosed the accused’s alleged offending was on 10 May 2022. She did not make a complaint earlier as she was fearful of what the accused would do to SG and SL. She thought the accused would alienate SL’s children from SL and KL did not want SG to think that what had happened to her had happened whilst she was meant to be looking after her.[53]
[53] T 43.20 – T 43.29.
When asked why she had made the disclosure on the night of SG’s funeral as opposed to the night SG died on 27 April 2022, KL explained that she saw the funeral as ‘the finale’ of anything to do with her mother.[54]
[54] T 68.37.
KL said that since her conversation with TC on 10 May 2022, she had not spoken to people to try and work out where people were at any given time. She had, however, spoken to her family general practitioner, who suggested that it would be very unlikely that SG would let her go to an empty house if she was younger than eight years of age. KL then tried to work out how old she would have been and came to the conclusion that she was around eight years old. KL admitted to looking at the photographs Exhibits P1, P2 and P3, to refresh her memory. She had originally thought the accused’s car was a Holden, but after seeing Exhibit P1, she realised it was not.[55]
[55] T 41.01 – T 41.11.
KL rejected defence counsel’s proposition that she was never sexually abused, and that this is just a figment of her imagination.[56]
[56] T 67.26 – T 67.28.
KL said that from 1975 onwards, SL’s mental health deteriorated, which saw her admitted to Glenside Hospital on more than one occasion. The accused then became the sole caring parent for their children, and he was granted sole custody of the children by 1977.[57] KL said that SL was currently not doing well mentally, and it would be extremely difficult for her to give evidence in the trial.[58]
[57] T 41.23 – T 41.27.
[58] T 62.11 – T 62.18.
Evidence of TC
TC has been married to KL for 37 years.[59]
[59] T 71.09.
On 10 May 2022, after SG’s funeral, at around 10pm, KL started a conversation with TC whilst they were in the lounge room. KL told him that she had something to tell him that she should have told him a long time ago. TC described KL as very quiet after arriving home from the funeral. They had sat on the couch, and KL had ‘just blurted out basically’.[60] She said she did not want him to get angry. TC said he told KL words to the effect of ‘Well, it can't be that bad, surely’[61] and KL told him that when she was eight years old, she was molested by ‘[SL’s] husband’.[62] KL said that she had not wanted to tell anyone until her mother passed away. She said, ‘It happened on three occasions in a car with two little boys in the back seat and usually when we were going to a park’.[63] She said it not only happened in the car, but also in the family home.
[60] T 73.23 – T 73.25.
[61] T 72.38.
[62] T 73.01 – T 73.03.
[63] T 73.07 – T 73.09.
He said there were a lot of tears on both his and KL’s part. KL apologised to him for not telling him. He told KL that he did not want to know specifics of what had taken place, as ‘molesting is molesting’ in his opinion.[64] He was ‘very angry, but controlled’ and reassured KL that he was there for her with whatever she wanted to do.[65]
[64] T 73.15.
[65] T 73.16 – T 73.17.
In cross-examination, TC confirmed he had looked at his statement to police dated 19 October 2022 before giving evidence in court, and that in this statement, he said ‘She said she was molested at least twice in front of a wooden buffet that was in the lounge/dining area of the house’.[66]
[66] T 74.27 – T 74.30.
Evidence of Detective Katie Banks
Detective Banks had been the investigating officer in this matter since July. She was with Detective Brevet Houlton when the accused was arrested on 30 November 2022.[67] Upon his arrest, Detective Banks spoke with the accused, informing him of the allegations of sexual abuse for the first time.
[67] T 75.16 – T 75.18.
In cross-examination, Detective Banks said that KL had said that the car in the background of Exhibit P1 was the car in which the abuse had taken place on the three separate occasions. Detective Banks had made inquiries with the Department of Infrastructure and Transport, however due to the passage of time, there were no holdings from that timeframe for the accused, nor could it be established what cars, if any, were registered to him in or around 1973.[68]
[68] T 78.36 – T 79.02.
Detective Banks could not recall if searches of the various properties were done when investigating the various addresses involved in this matter. No inquiries were made with respect to the accused’s employment as a butcher during 1973, including his working hours.[69] Detective Banks said she had not taken any steps to retrieve Family Court documents that may have shown the sequence of the breakup between the accused and SL and whether their breakup was acrimonious or problematic.[70]
[69] T 79.18 – T 79.27.
[70] T 80.15 – T 80.19.
Detective Banks was aware that SL spent periods of time in Glenside Hospital in the 1970s and that the accused was in hospital with hepatitis for ‘a lot’ of 1973.[71]
Defence Case
[71] T 80.29 – T 80.38.
Evidence of DD
DD had lived in South Australia until he was 30 years old, before moving to New South Wales where he currently resides. He said that when he was about 16 he met the accused in 1973 through their church and the accused had just turned 21.[72]
[72] T 86.27 – T 86.34.
DD said his family would often look after the accused’s sons. He said that he knew both of the accused’s sons in 1973, when MW would have been turning three and BW was under one. He never met KL. Although he left South Australia in 1986, he continued to maintain a relationship with the accused and they have about a hundred mutual friends. DD said that the accused is held in extremely high regard by everyone who knows him, and he has a reputation of a ‘gentle, kind man’[73] who has done a lot for other people in his life and raised his children ‘amazingly’.[74]
[73] T 91.10 – T 91.11.
[74] T 91.12 – T 91.13.
He said that in 1973, the accused had a HD Holden, a 1965 model, which was a light colour, either grey or potentially tan. He would often see the accused driving the car when they arrived at Sunday church. The accused would be driving the car, SL would be in the passenger seat, generally holding BW, who was a small baby, while MW was usually in the backseat. He recalled that MW was usually unstrained in the backseat, although he could not definitely recall if there were seatbelts in the car. He did not ever get into the car himself.[75]
[75] T 88.09 – T 88.11.
DD said that there were six boys in the Sunday school church group who were all interested in the accused’s ‘HD Holden’ and that it was basically all they talked about. He bought a ‘HK Holden’ in 1975, which was manufactured in 1968. DD’s Holden, which he described as more modern than the accused’s, had seatbelts fitted in the front seat, but there were no seatbelts in the rear.[76] He said that during 1973 to 1975, he never saw any car seats, and instead, people would use bassinets.
[76] T 88.32 – T 89.06.
With respect to Exhibit P1, he said that he recognised SL as the woman holding the baby, who he presumed (but was unsure), was BW. The man in the photo was holding MW. In 1972, he was living in South Australia but did not know the accused. He said that he did not recognise the car in Exhibit P1.[77]
[77] T 91.27 – T 91.28.
DD said that he was aware that in 1973, the accused became very unwell with hepatitis. The church group would talk about it and pray for the accused’s recovery. He did not visit the accused in hospital but recalled that when he did return to church he was ‘very frail’.[78] He believed that it was 1973 when the accused was ill, as DD was studying his matriculation.[79]
[78] T 89.29 – T 89.30.
[79] T 89.37 – T 89.38.
He first became aware that SL was having difficulties with mental illness in about 1975, after he visited SL and the accused in Victor Harbour. He noticed SL was very distressed on this occasion, and shortly after she spent a period of time in Glenside Hospital.[80]
[80] T 90.20 – T 90.24.
In cross-examination, DD said that when he met the accused in 1973, the accused was living in Melville Street, South Plympton. About two years later, around 1975, the accused moved to Edwardstown. He said that he could recall this because his family left from Edwardstown to move to Darwin in March of 1976, and had stayed overnight at the Edwardstown house. DD conceded SL could have been admitted to hospital in 1974 or 1976.[81]
[81] T 92.14 – T 92.23.
He first saw the ‘HD Holden’, that was manufactured in 1966, in early 1973. The only car he knew the accused drove was the Holden, however he did recall that the accused talked about an old Morris he owned, which DD had never seen.[82]
[82] T 93.05 – T 93.06.
He recalled that the ‘HD Holden’ was a light colour, which he said could have been grey or tan. He conceded that he did not exactly remember the colour, only that it was a light grey colour, or a slight tinge of tan.[83] He believed the car had a white roof but could not be sure. When he had seen the children in the accused’s car it was in the vicinity of church. He never saw them drive off, only when arriving at church.
[83] T 94.25 – T 94.26.
In re-examination, DD said that his parents moved to Darwin in March of 1976.[84] He recalled staying at the accused’s house at De Laine Avenue, Edwardstown in 1976.[85]
[84] T 95.21.
[85] T 95.22 – T 95.25.
Prosecution Address:
The prosecutor submitted that the issue in the trial was whether KL’s evidence is accepted. Assessing her reliability and credibility, requires an assessment of:
1.The intrinsic likelihood or unlikelihood of her evidence.
2.How her evidence stood up to cross-examination; and
3.How her evidence fits with other evidence.
The prosecutor submitted that KL was a credible witness, who despite the passage of time, was sufficiently reliable for me to rely upon her account beyond a reasonable doubt. KL was not only describing events from 51 years ago, but she gave evidence on events in which she perceived through the lens of a child who was eight years old. At all times, KL was endeavouring to tell the truth and nothing in cross-examination undermined her credibility. The issue to consider is her reliability. KL was articulate, always responsive and gave detail. Her evidence was clear. Although in her interview she said she ‘was around about eight’ when the sexual acts took place, her evidence was clear that she was eight, and there was no shift in her evidence on that point during cross‑examination.
KL candidly admitted to reconstructing on occasion, something the prosecutor submitted was entirely understandable. The prosecution submitted that candid admission of using photographs to refresh her memory was something that should not affect her credibility. The question is whether her reconstruction damaged her reliability to the extent that the charge cannot be satisfied beyond a reasonable doubt. The prosecution argued that the intrinsic likelihood or unlikelihood of the story told by KL made sense. The prosecution says her reason for not taking steps to locate the playgrounds or parks because she did not like to think about it was understandable and made sense.
KL provided detail throughout her evidence. She had spontaneously said that when the sexual acts in the car took place, MW was in the backseat behind the accused and BW was in the backseat, on the passenger side. Her evidence was that the children were in the backseat of the car, on a bench seat, and that they were restrained. Her evidence potentially shifted, when considering whether they were restrained by seatbelts or car seats. In any event, the prosecutor suggested, the detail did not really matter, as the main thing was that the children were restrained. KL had accepted the possibility that she may have been wrong about the colour of the car. Her evidence was that the car was two tone blue, but she conceded during cross-examination that it might have been grey. She was also frank in that she conceded she initially thought the car was a Holden, but then she found some photos.
In relation to the lounge room incident, KL recalled details relating to the gold carpet in the lounge room, and the dresser. The prosecutor submitted that a feature of her evidence was that she prepared to make concessions, for example, accepting that there was a possibility that she was mistaken about the photograph Exhibit P1 being taken at a christening. Again, the prosecutor suggested, that it did not really matter whether it was a christening or not. It was reasonable that KL could not remember how the accused got into the Panorama house on the occasion where he abused her on the lounge room floor. During cross-examination she conceded that she could have let him in the front door. The prosecutor submitted that, importantly, KL did not speculate – she did not guess how he got inside, she just said she could not remember. The prosecutor submitted that aspects of KL’s evidence which were convincing and had a ring of truth to them included, the smell of the hot leather in the car, the position of the children in the car, her ‘wet sticky fingers’, and her evidence that she hated the dresser.
The prosecutor flagged caution in relation to KL’s evidence regarding De Laine Avenue, and specifically, when making a finding as to whether KL conceded that in 1973 the accused lived on De Laine Avenue, on the basis that she recalled the playground / park locations after using the De Laine Avenue house as a reference point.
It is an agreed fact that the accused was not living at De Laine Avenue in 1973. The prosecutor submitted that KL did not specifically say in her evidence that the accused was living at De Laine Avenue in 1973 when she was abused. Instead, she was relating the two locations (Colonel Light Gardens and Edwardstown) to where she thought the accused was living in 1973. If it was alleged that one of the sexual acts took place inside De Laine Avenue, and the evidence was that the accused did not live at De Laine Avenue in 1973, then such an inconsistency would be fatal to the prosecution case. However, in this instance, the allegation is about masturbation in a car, not the offence which is said to have occurred at Edwardstown.
As to KL’s complaint to TC after SG’s funeral, she recalled ‘it all just came bubbling out’, after her mother’s funeral, which she referred to as the ‘finale’ of her mother. The prosecutor suggested this made sense and that there was nothing to support a suggestion of a motive for KL to make a false complaint in 2022, or any motive to lie.
Overall, the prosecutor submitted that KL was a credible witness and despite the passage of time she was sufficiently reliable for me to rely upon her account beyond a reasonable doubt.
Defence Address
Defence counsel submitted that there were internal and external inconsistencies in KL’s evidence, significant forensic disadvantage to the accused, and an inherent implausibility of the acts themselves having been performed in the way KL described. Defence counsel argued that KL recanted on important topics and her evidence did not have a ring of truth, but rather, had a ring of unreality, particularly in that there was no grooming evidence, and a delay in complaint of 49 years.
As to forensic disadvantage, two critical witnesses, SG and PL have died. PL was residing in the Panorama house at the relevant time, and there is only KL’s evidence as to the fact that he might have been working, or at least that he was not in the house for a particular reason. The specific forensic disadvantage in relation to SG, is that on KL’s account, SG gave the accused permission to take KL and his children to the park.

Detective Banks spoke of the forensic disadvantage in that there are no longer any records in existence that will identify what cars were registered to the accused at a point in time. As the car was relevant to three sexual allegations, the type of car is important. The facts which are agreed in part, suggest that the car KL alleged where the incidents occurred, cannot be the car depicted in Exhibit P1. The car in Exhibit P1 was in existence in 1972 as that was when the photograph was taken. There was also DD’s unchallenged evidence that he had never seen that car before. DD purchased a car which was a newer model than the accused’s and his car did not have seatbelts. He conceded that he never got in the accused’s car himself, and as such, could not confirm whether there were seatbelts in the accused’s car, however, whenever he saw the accused and SL arriving at the church, she would be carrying BW in her arms and MW was in the car, unrestrained.
During the relevant period the accused was employed full time, excluding a period of time when he was in hospital in 1973 due to hepatitis. This evidence was unchallenged. The accused was working as a butcher during this period. Due to the forensic disadvantage, he was unable to get payslips to show whether he was working on a particular day or whether he had any time off at all in 1973. The forensic disadvantage extends to not being able to pinpoint when in 1973 these events occurred or being able to call alibi evidence.
Defence counsel submitted that there were inconsistencies in KL’s evidence, the agreed facts, and with TC’s evidence.
Defence counsel submitted that the allegations relating to the three occasions of masturbation are general in nature, with no differentiation between each of the three occasions, save that it was a different unidentified playground or park that the car was parked at when it occurred. As KL believed that the accused was living in the Edwardstown address, she nominated two parks at Edwardstown and one at Colonel Light Gardens that relate to the car masturbation offending. However, in accordance with the agreed facts, the accused did not move into the Edwardstown address until 1975. Defence counsel submitted that KL had the wrong car and the wrong reference points with respect to how she picked playgrounds / parks, based on the reference point that the accused was living in Edwardstown. KL also gave an identical description for each playground, with no differentiation between them.
KL said that while she was masturbating the accused, she had a very clear recollection that the children were strapped into car seats behind her, whilst she engaged in conversation with them. Defence counsel submitted that if the offending occurred in 1973, as BW was born in April 1972, he would be unable to be restrained in the way KL described, especially whilst she was masturbating the accused.
In addition to the lack of evidence regarding whether there were car seats or seatbelts in 1973, the description of the alleged sexual acts was inherently implausible, particularly because there was, on KL’s admission, no grooming from the accused. KL said she couldn’t recall the accused saying anything after the offending but conceded that he could have said something. Defence counsel submitted that it was very brazen conduct, particularly without any confidence that KL would not say anything.
The lounge room incident is alleged to have occurred in the Panorama house. Defence counsel argued that KL’s evidence about this event was troubling. Her evidence was that she got home from school shortly after 3.30pm, and her mother would not come home from work until about 5.30pm, leaving a very small window of opportunity, leading to what defence counsel submitted was an inherent implausibility of KL’s account. KL said that the accused turned up to the Panorama house unannounced, knocked on the door as he called for her, and that she hid. The accused then proceeded around the house, knocking on the windows and doors whilst she hid inside, frightened and scared because of what had previously happened in the car. KL was unsure how the accused got access inside the house. TC’s evidence was that sexual conduct occurred on at least two occasions, inside the Panorama house and that the accused had gained access with a spare key.
There was a shift in KL’s evidence which initially, in examination in chief, was that the accused had told her not to tell anyone in relation to the lounge room incident in the Panorama house. In cross-examination, she accepted that she told police nothing was said before he left the house, as ‘he might have told me not to say but I don't remember'.
KL’s evidence was that she always wanted to keep the offending secret until her mother had passed away. Defence counsel noted that there were 13 days between her mother’s death and the funeral, where KL did not make any complaint. Furthermore, KL allowed the accused to go about his business mixing with people and children.
There were, defence counsel argued, many examples of how KL was prepared to not only reconstruct, but also to change her evidence. For example, nominating two addresses where the accused lived in Edwardstown in her evidence, and nominating South Plympton as the location of one of the parks where the accused had taken her.
Finally, defence counsel submitted that if ever there was a case of forensic disadvantage, internal and external inconsistency and implausibility, it was this case and that the only verdict could be one of not guilty.
Analysis:
The prosecution case depends entirely on KL’s evidence, and I have scrutinised KL’s evidence with care. I must be satisfied that she is a credible and reliable witness, and I must be satisfied beyond a reasonable doubt that she has told the truth about the alleged offending.
I found KL to be an impressive witness insofar as she did not shy away from acknowledging that her memory was not complete or in admitting that she had searched for photographs that might assist in the details of surrounding events and circumstances.
While the defence have criticised KL’s evidence in that there were inconsistencies and an element of reconstruction of the facts and events, it is unsurprising for a complainant to have searched for evidence that may assist to spark memory, piece together snippets of memory or ‘sure up’ what memories they do have, particularly in a case where the delay has been as extensive as it is here. Some level of inconsistency would be inevitable, and KL said, she was a very young child at the relevant time.
I did not find that there was any hint of motive in KL’s evidence. She gave her evidence in an entirely straightforward way, and as I said, she was prepared to concede faults in her memory. The absence of any motive on her part does not of course strengthen the case against the accused.
I found that her belief in the accuracy of what she had said regarding the car seats, the car driven by the accused at the relevant time, and where he was living was genuine.
That there was no evidence of the accused grooming KL, or the apparent brazenness of the alleged offending, does not of itself cause me to doubt the plausibility of KL’s account. In my view, such offending is not necessarily preceded by grooming behaviour and sexual offending committed against young children can occur without apparent grooming, or regard to risk.
I also found KL’s explanation of why she had chosen to disclose the alleged offending to TC on 10 May 2022, the evening of SG’s funeral to be entirely credible. Against that however, there was a degree of inconsistency between her evidence and that of TC as to what she had disclosed on the evening of SG’s funeral, which I have found troubling. This is so particularly, as it related to a conversation with TC more recently, and appeared to involve only the lounge room incident and concerned details of how KL said the accused had gained access to the house.
Plainly, KL’s memory of certain facts was wrong, or at the very least, she remained uncertain as to the particulars. It seemed to me that some of the surrounding particulars may sit better with the events that KL had described as having occurred later than 1973. While times and dates are not critical particulars in the proof of the charge here, I have found it difficult to conclude that KL’s evidence as to the essential elements of the charged offence were entirely reliable.
While memories that surround events so long ago may fade, the essential elements of an event are no doubt, more likely to be retained. As a young child at the relevant time, surrounding details and precise locations of where events took place, may not have been either recognised or retained. Nevertheless, I have found it difficult to distinguish between what were genuine recollections of the events and the surrounding circumstances, with what features of the surrounding circumstances KL has unconsciously woven into her memory.
There can be no doubt that the accused has faced a most significant forensic disadvantage in his defence of the serious allegations made against him. Much of the surrounding detail, some of which was very relevant to the offending alleged, such as the vehicle involved, or even the opportunity to offend, cannot be tested given the death of SG and PL, along with SL’s inability to give evidence, combined with the lack of records retained from the relevant time period.
The standard of proof beyond reasonable doubt is very high and I am left with a reasonable doubt as to the reliability of some of the crucial aspects of KL’s account. In those circumstances I must return a verdict of not guilty.