R v MDM
[2022] SADC 25
•1 March 2022
District Court of South Australia
(Criminal)
R v MDM
Criminal Trial by Judge Alone
[2022] SADC 25
Reasons for the Verdicts of his Honour Judge Soulio
1 March 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - OTHER OFFENCES
Accused charged with two counts of maintaining an unlawful sexual relationship with a child - accused was the stepfather of the complainant KA and the offending is alleged to have occurred between 1990 and 1992; and the stepfather and also half-brother of the complainant RM and the offending is alleged to have occurred between 1995 and 1999.
Verdicts - not guilty on each count.
Criminal Law Consolidation Act 1935 (SA) s 50; Juries Act 1927 (SA) s 7, referred to.
R v Gardi [2015] SASC 186; R v W J [2018] SADC 95; R v M, D V [2019] SASCFC 59; R v J, J A (2009) 105 SASR 563; R v MAS (2013) 118 SASR 160; R v Cassebohm (2011) 109 SASR 465; R v Finn (2014) 119 SASR 207; R v Perry (No. 2) (1981) 28 SASR 95; Murray v The Queen (2002) 211 CLR 193, considered.
R v MDM
[2022] SADC 25
Introduction
The accused, MDM, is charged with two counts of maintaining an unlawful sexual relationship with a child, pursuant to s 50(1) Criminal Law Consolidation Act 1935 (‘CLCA’) against two complainants – KA and RM. The accused was in a relationship of stepfather to each of the complainants at the time of the alleged offending.
The accused elected to be tried by a judge sitting alone without a jury.[1]
[1] Juries Act 1927 s 7.
The Charges
First Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
MDM at Pinery, between the 1st day of June 1990 and the 30th day of November 1992, maintained an unlawful sexual relationship with KA, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards KA, namely:
(a) touching her on the vagina on more than one occasion; and
(b) penetrating her labia majora on more than one occasion.
This is a "prescribed offence" within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Second Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
MDM at Enfield, between the 15th day of December 1995 and the 9th day of August 1999, maintained an unlawful sexual relationship with RM, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards RM, namely:
(a) touching her on the vagina on more than one occasion; and
(b) inserting a finger into her vagina on more than one occasion.
Count 1 - KA
Sexual acts are alleged to have been committed against KA between 1 June 1990 and 30 November 1992. Accordingly, KA was, aged between seven and 10 years during the relevant period. The accused was aged between 26 and 28 years during that period.
Count 2 – RM
The sexual acts are alleged to have been committed against RM between 15 December 1995 and 9 August 1999. Accordingly, RM was aged between eight and 11 years during the relevant period. The accused was aged between 31 and 35 years during that period.
General Directions
The general directions were conveniently summarised by Lovell J in R v Gardi as follows:[2]
·As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
·The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.
·The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
·The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.
·I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
·If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.
·I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense and experience in assessing the evidence.
[2] R v Gardi [2015] SASC 186 at [9]-[15].
Elements of the Offence
An adult who maintains an unlawful sexual relationship with a child is guilty of an offence.[3] An ‘unlawful sexual relationship’ is defined as ‘a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child over any period’.[4]
[3] CLCA s 50(1).
[4] CLCA s 50(2).
An adult is a person over 18 years.[5] A child is a person who is under the age of 17 years, or a person under the age of 18 years if the adult is in a position of authority in relation to the child.[6]
[5] CLCA s 50(12).
[6] CLCA S 50(12).
An Information charging a person with an offence under s 50(1) CLCA is not required to contain the level of particularity demanded by the common law. Section 50 relevantly provides:
(3)For an adult to be convicted of an unlawful sexual relationship offence, the trier of fact must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed.
(4) However—
(a) the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and
(b) the trier of fact is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, but must be satisfied as to the general nature of character of those acts; and
…
(5)The prosecution is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.[7]
[7] R v W, J [2018] SADC 95 at [9].
Accordingly, for present purposes, the prosecution is required to prove each of the following four elements beyond reasonable doubt:
1.During the period of the offending specified on the Information, the accused was an adult. That is common ground.
2.During the same period, the complainant in question was a child. That is common ground.
3.The accused was in an unlawful sexual relationship with the complainant:[8]
3.1an unlawful sexual relationship is defined as a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child;
3.2an unlawful sexual act means any act that constitutes or would constitute a sexual offence. Again, it is common ground that all of the acts specified (in respect of each count) on the Information are unlawful sexual acts);
4.The accused maintained the unlawful sexual relationship. The word ‘maintained’ or ‘maintaining’ carries its ordinary meaning – that is, carried on, kept up or continued. Here, there is no dispute that, if two or more of the unlawful sexual acts are proved beyond reasonable doubt, an unlawful sexual relationship was maintained.
[8] See R v M, D V [2019] SASCFC 59 per Kourakis CJ at [10]; per Lovell J at [183]-[184].
It is not necessary to find that all of the unlawful sexual acts in the particulars are proved in order that the offence of maintaining an unlawful sexual relationship is proven beyond reasonable doubt. It is sufficient to find that two or more such acts were performed by the accused during the relevant period.
The issue of consent to any of the unlawful sexual acts is irrelevant, given that at all relevant times each complainant was under the age of 17 years.[9]
[9] CLCA s 50.
Ultimately the only element of each charge of maintaining an unlawful sexual relationship with a child which remained in dispute was whether any sexual acts were performed by the accused upon either of the complainants.[10]
[10] Defence closing submissions at [3].
The Trial
KA gave evidence, as did her mother JM. RM gave evidence as did her mother DB. The investigating officer, Detective Wildin gave evidence. In addition a schedule of agreed facts was admitted into evidence as were various exhibits, to which I will refer as necessary. The accused did not give evidence. His subsequent, estranged wife, Robyn gave evidence in the defence case.
Evidence
It is useful to set out, in general terms, something of a chronology which is common ground. As I have said, it is not in dispute that the accused was an adult at the time of the alleged offending, and that each of the complainants were children.[11]
[11] T 21 L 20.
The accused was born on 18 April 1964; the first complainant KA on 16 October 1982, and the second complainant RM on 15 December 1987. The accused met KA’s mother JM in 1982, and they married in 1986. The accused was KA’s stepfather and she called him dad. He was a father figure to KA. The accused lived with KA and JM from about 1983 until February 1992 and for some periods thereafter up until November 1992.
The relationship between the accused and RM is somewhat more complicated. The accused is the son of Norman (Norm). Norm subsequently married DB. RM is one of their children. The accused and the complainant are therefore half-siblings.
The accused ended his marriage with JM in 1992. DB’s relationship with Norm also ended. The accused then commenced a relationship with DB, his stepmother, in 1994. Accordingly, the accused became RM’s stepfather, as well as her half-brother.
RM lived with the accused lived from late 1994 or early 1995 until August of 1999 and then from various periods afterwards until 2003 when she left home permanently.
Evidence of KA
KA gave evidence that the first house she remembered living in was at Kilburn when she was around three years of age.[12] She then moved to a house in Pinery when she was eight or nine.[13] She lived there for a few years with her mother, the accused, and her brother Duanne, who is two years younger than her. She moved from Pinery at age 11 or 12.[14] The accused lived with her from when they lived at Kilburn to when they moved to Pinery. She called the accused ‘Dad’ from the beginning of their relationship up until shortly prior to making her initial statement to the police in October/November 2011.
[12] T 25 L 13.
[13] T 25 L 36.
[14] T 26 L 33.
The relationship between her mother and the accused was volatile as they both had short tempers. It was characterised by violence, often fuelled by alcohol which they consumed almost every day after work. KA witnessed physical altercations between the two of them. She recalls the accused drinking so much that he would ‘wobble’ when he walked, slur his speech and have red eyes. KA said that her mother didn’t drink ‘even half as much’ as the accused, but she would often drink to the point of intoxication.[15]
[15] T 70 L 8.
In terms of the layout of the Pinery house, she said her mother and the accused had a bedroom, and KA and her brother each had separate bedrooms. They never changed bedrooms. KA said that her bedroom did not have a door. She could not remember if her mother’s room had a door. She thought that her brother’s room had French doors.[16]
[16] T 4 L 5.
KA said that her room had two layers of curtains, one layer of lace curtains and another layer of curtains in front that were drawn to the side.[17] She said that light would come through the curtains and also from outside her bedroom from within the house due to the lack of bedroom door.[18]
[17] T 44 L 11.
[18] T 46 L 11.
KA slept in the same single bed the entire time she lived at Pinery, but the position of the bed was moved from time to time. KA said she and her brother generally went to bed after she watched the Simpsons, which finished at 6:30 or 7:00pm. She said that the accused would return from work before the Simpsons finished. She did not remember when her mother went to bed. She said that it was sometimes possible to hear if someone was walking around the house at night. That was mainly the case in the kitchen as it had creaky floorboards.[19]
[19] T 73 L 19.
KA said that during the time she was living at Pinery and attending Balaklava Primary School, the accused touched her on the vagina more than once, but she could not quantify the number of times. She had no specific memory of that occurring other than in her bedroom at the Pinery house. She said that he always touched her on the vagina either at night, or during the early hours of the morning.
First Occasion
KA said the incident that was possibly the first in time, occurred when she was eight or nine years old. She woke and saw the accused next to her bed. The accused had his hand underneath the blanket, in between her legs, from the top of her pants. KA said he was rubbing inside the lips of her vagina with his fingers. She was lying on her side in her bed with her feet towards the door.[20] She was facing the window with her back against the wall. KA and the accused did not exchange words. She could not estimate how long the touching went on for. She said she did not know or think the behaviour was inappropriate at the time.[21]
Second Occasion
[20] See position shown in Exhibit P15.
[21] T 52 L 20.
KA said the second incident occurred at the Pinery house when she was about 10 years old. The incident was similar in nature to the conduct on the first occasions. The accused knelt beside KA’s bed, and placed one hand underneath the blanket, and down the front of her pants. KA said that on this occasion she saw the accused as he left the bedroom. She said there was light coming into the room from the town hall nearby. The furniture in her room had been arranged such that the drawers had been put on either side of the bed after the first occasion. The incident did not go on ‘for very long at all’. She said there were definitely two more times that the accused touched her on the vagina.[22]
Third Occasion
[22] T 55 L 4.
KA gave evidence that the accused had won a competition on radio station SAFM called ‘Beat the Bomb’. The accused won a cash prize of the order of $600. Consequently KA went on what she called a mini shopping spree with her mother. She purchased horse figurines called ‘My Little Pony’.[23] KA put the pony figurines on the bedside table to the right of her bed. She said that she always put them back on that specific bedside table, even if she moved them to play with them temporarily. She still had the ponies when she left Pinery.[24]
[23] T 56 L 28.
[24] T 58 L 2.
KA said that some time after the purchase of the figurines she was in her bed. She had her eyes closed. The accused crouched down in her room. She said she felt him touch her vagina, and heard him undo the zipper on his pants. KA differentiated that particular occasion from the other times, on the basis that when she opened her eyes and saw the accused kneeling by the side of her bed with his hand down her pants, she also saw the ‘My Little Pony’ figurines on the bedside table. She said that was the only occasion, when the accused touched her vagina, upon which she saw the figurines. She said that was likely the last incident in sequence, because the figurines were not there yet on the other occasions. She said that was the last time she recalled being touched inappropriately by the accused.[25]
Other Occasions
[25] T 58 L 9.
KA said there were other occasions upon which the accused came into her bedroom and touched her on the vagina. She could not recall the other occasions in as much detail, but she said that on one occasion it was very hot and she was ‘wearing too many clothes’. She said that that may have been one of the incidents she had already described in evidence, or a completely separate time. KA said that on one occasion she was wearing a nightgown or T-shirt that was too long. It was a light colour. She said that it was pulled up around her waist.[26]
[26] T 59 L 30.
She said she was wearing pyjama tops similar to a tracksuit, on one occasion. That may have been an occasion when she had tried to hold her legs shut, but she said she could be wrong about that as it happened more than once.[27]
[27] T 60 L 2.
KA said that the accused always came into her room at night time. She said that the accused always made skin contact. She said that each time the accused smelled of beer, marijuana, and sometimes like ‘dust’. She said that if she moved, the accused tried harder and that no matter what she did, or how she moved, or what she was wearing, the accused was always able to get his hands down her pants. KA said she did not want the touching to happen and actively tried to stop it from happening.[28]
[28] T 78 L 3.
KA said she didn’t know where other members of the household were when the touching occurred but she assumed they were asleep.
Complaint to KA’s Mother
Evidence of a complaint is admissible pursuant to s 34M Evidence Act, to inform the court as to how the complainant’s allegations first came to light, and as evidence of the degree of consistency, or inconsistency, of a complainant’s conduct. The expression “consistency of conduct” includes both the consistency in making the complaint when it would be expected to be made, and consistency between the wording of the complaint and the conduct alleged.[29] It is not evidence of the truth of what a complainant has alleged.
[29] R v J, J A (2009) 105 SASR 563 at [95] per Duggan J.
Complaint evidence must relate to the alleged offences. A complaint does not necessarily have to refer to the details, but where a general complaint of sexual abuse is led in evidence for the purpose of establishing consistency of conduct, it must be established that what was said encompasses the charged count.
KA said that while at the Pinery house she told her mother that the accused was touching her. She said she had a good relationship with her mother at the time. She said that at the time of that conversation with her mother, the accused was in the loungeroom and KA’s mother was in her own bed. KA got into her mother’s bed with her. She said she felt scared. She cannot remember what specific words she used, but she told her mother that the accused had touched her. She said her mother responded saying ‘you fucking liar, why would you lie about something like that?'.[30]
[30] T 63 L 21.
In response to a question put to her in cross-examination KA said that it is possible that when she told her mother about the incidents, she had told her mother that she had said to the accused, at the times he was touching her, 'Daddy, please stop'. She reiterated that she did not remember the exact words she said to her mother when making the initial complaint.[31]
[31] T 76 L 9.
KA agreed in cross-examination that if she had said that to her mother at the time of the initial complaint, it would not have been the truth, on the basis that she maintained her evidence that she said nothing to the accused on each occasion he was touching her, as she was too scared, and she pretended to be asleep.
KA said the accused left the Pinery house, some time after KA made the initial complaint to her mother. She was unsure as to how long that was after telling her mother about the touching. KA then moved with her mother and brother from the Pinery house to a house in Arndale.
Relationship Between KA and RM
KA said that she knows RM who is the accused’s ‘little half-sister’ as she has the same father as the accused. KA is seven years older. She first met RM when RM was very young. When KA was 14 she lived with RM at a house in Enfield for some time. KA had a boyfriend called Steve at the time. There were many nights when KA, RM and Steve stayed overnight together at the Enfield house. KA said she and her boyfriend slept in the living room on a mattress. There was a couch in the living room.[32]
[32] T 16 L 23.
KA said that when she would initially go to sleep, RM was not in the room, KA would wake up, and RM would be next to her on the couch.[33]
[33] T 66 L 24.
KA maintained contact with RM. She last spoke to RM the night before giving evidence in this trial. She said RM had wished her luck and told her that after they both gave evidence, they could have a proper conversation.[34]
[34] T 67 L 36.
KA said she had not told anyone any details about the accused touching her except for lawyers and the police. She said that was because it makes her feel ‘disgusting’ and as though she’s ‘done something wrong’,[35] and also due to not being allowed to in light of the current proceedings.
[35] T 68 L 8.
KA said she had stayed at the Enfield house with RM on multiple occasions, at times staying on holidays, and at times living there for periods, between the ages of about 11 and 14 years.[36] She shared a room with RM on some occasions and on others, she had her own room, such as when she had her appendix removed. She said she never saw the accused touch RM in that house.[37]
KA Learning of RM’s Complaint Against the Accused
[36] T 95-96.
[37] T 96 L 27.
KA said that when she was 14 years old she learned for the first time that there was an allegation made by RM involving the accused. KA said that she was sitting at the kitchen table when a school counsellor telephoned DM, RM’s mother, and spoke with her. When DM finished the call she told KA ‘what had happened regarding RM being sexually abused’. RM was at school at the time. That call from the school counsellor was made some time after KA had told her own mother that the accused touched her. KA said she had never said anything to RM about the accused touching her.[38]
[38] T 68 L 3.
KA was asked in cross-examination whether it was possible that the people investigating RM’s allegations had in fact come to the house, and that the conversation took place in her presence. She said “no she was on the phone.”[39] KA was taken to a statement she had made to police in 2019. on 11 June 2019 she had said in that statement, that while she was living in the Enfield house “[RM] told the school that [the accused] had been abusing her. I remember sitting at the dining room table with [DB] and a few other people. I can't remember who they were, but for some reason I remember two ladies and a man. [DB] was repeating what the counsellor had said [RM] had said. I remember thinking what [RM] had said was the same as what happened to me.”[40]
[39] T 99.
[40] T 99 L 27.
She disagreed that her evidence in the trial was different to that statement, asserting that the statement merely omitted the fact that there was a telephone call.
Incident Involving GM
It was common ground that KA, when aged about three years, had made a complaint about sexual abuse at the hands of one GM, another relative. When asked about GM, KA said that she did not recall anything specific, other than when she was three or four years old she had to attend hospital because GM had touched her inappropriately. She said she could not recall whether she told her mother about that. As an adult she was informed that police had become involved at that time of the complaint against GM.[41]
Spending Time With the Accused
[41] T 69 L 2.
KA said she saw the accused again after moving from the Pinery house. She gave evidence that she lived with him at a time when she was 13 years old because her mother moved to Tasmania, and she did not want to move states. She agreed she had other family members living in South Australia, but said she was unable to stay with them. She agreed she had never told anyone that she did not want to stay with the accused because he had touched her inappropriately. She also agreed that she had stayed with the accused when she was 14 years old, after she had had her appendix removed, and before moving to Tasmania, because she was too sick to ‘fend for herself’.[42] She said she returned to Enfield to live at the accused’s house.[43]
Accused’s Wedding
[42] Exhibit P18 at [18] – Operative procedure and hospitalisation between 27 April 1997 and 2 May 1997.
[43] T 79 L 27.
KA gave evidence that in 2007 she attended the accused’s wedding, and stayed at the house he shared with his fiancé in Western Australia. KA said that she chose to attend the wedding because the accused’s fiancé Robyn was young. KA thought that she might want to have children. KA said she was going to attend the wedding and tell everybody ‘what he did’. However, when KA arrived at the wedding and interacted with members of the extended family she changed her mind ‘because Robyn and her family are beautiful and I didn't want to hurt them’. KA said she deliberately did not pose with the accused for any photographs at the wedding.[44]
2008 Holiday to South Australia
[44] T 101 L 24.
KA said that in 2008 the accused and his wife travelled to Adelaide for two weeks. She said they only stayed at her house for two days. She said she did not invite them to stay, but rather they asked, and she said yes. She agreed she had been maintaining contact with Robyn up until that time.[45]
[45] T 80 L 7.
By that time, KA had three children, aged two, six and seven years.[46] KA said that while the accused and Robyn were staying, she had put her own children in a room next to hers, because that room had a ‘creaky stiff door’. She also said she hid a baby monitor in the room, kept her bedroom door open, and made the accused and his wife stay in the room furthest away from her children.[47]
[46] T 80 L 19.
[47] T 109 L 38.
She said she tried to stay awake all night, but after the second night she could not stay awake any longer, so she told the accused and his wife that her uncle would be staying at her house, and she needed the room for that purpose, even though that was not the case.[48]
[48] T 110 L 9.
KA agreed that in her previous statement to the police she had said that the accused and his wife stayed in the bedroom closest to her. She later provided an addendum statement to accurately reflect what she now said was the room they had stayed in.
She said that in her statement to police she had made an error in saying that the accused and his wife had stayed for three nights, and that the correct period was three days and two nights.[49]
[49] T 82 L 4.
KA said that the accused and Robyn had visited on another occasion in 2011, but said they did not stay with her, although her family spent time with them. She agreed in cross-examination she was was still calling the accused ‘dad’ at that time.
In cross-examination evidence was elicited from KA regarding visits by the accused to KA’s house and the provision by KA of the photographs to the accused, and the existence of photographs of KA with the accused. KA said that she sent some photos of her children to the accused when they were a similar age as she was when she was allegedly abused by him.[50] She allowed the accused to see her children and let them sit on his lap, but she watched him ‘like a hawk’.[51]
[50] T 82 L 29.
[51] T 83 L 11.
KA was shown a bundle of photographs,[52] which she agreed were of herself, her children, the accused and his wife from when the accused and his wife visited her in their Paralowie house in 2011. She was also shown a bundle of photographs,[53] which she agreed were of the same people, from when the accused and his wife visited the Paralowie house in 2009.[54] KA denied sending both of those bundles of photos to the accused, and said that Robyn took them.[55]
[52] Exhibit D9.
[53] Exhibit D11
[54] T 87 L 14.
[55] T 88 L 14.
KA was shown a bundle of photographs,[56] which she agreed were school photographs of her six year old daughter, that she had given to the accused.[57]
[56] Exhibit D10.
[57] T 87 L 1.
KA was shown a handwritten page and a bundle of photographs.[58] She agreed that the handwritten page was a note she wrote regarding the birth dates of her children and her brother’s children.[59] She sent that note to the accused some time after 2004.[60] Regarding the bundle of photographs, she said she sent three of them to the accused, that she did not send six of them to the accused, and that she possibly sent one of them to the accused.[61]
[58] Exhibit D12.
[59] T 89 L 32.
[60] T 90 L 12.
[61] T 90-93.
KA was shown two photographs,[62] which she agreed were wedding gifts that she and her brother bought the accused. She was also shown a bundle of photographs[63] that she agreed were of her at the accused’s wedding. That included a photograph of her and the accused, together with other family members.[64]
Robyn’s Question
[62] Exhibits D6 and D7.
[63] Exhibit D8.
[64] T 84 L 16.
KA said that Robyn contacted her after Robyn had married the accused, and had asked KA a question to the effect of whether the accused was a paedophile. The question had apparently been prompted by a comment made by KA’s mother to Robyn. Robyn said of KA’s mother 'The fucking cow asked me to ask you why they split up'.[65] In response to Robyn’s question, KA told Robyn that KA’s mother was just trying to cause trouble and not to worry about it. She did not disclose to Robyn that the accused had sexually abused her.[66]
[65] T 103 L 2.
[66] T 103 L 16.
She agreed that in a statement to police dated 2 August 2019 she said, 'My mum had been in contact with Robyn and suggested she contact me to find out why she and [the accused] split up. Robyn told me my mum had said that [the accused] was a paedophile. Robyn wanted to know if it was true' [67]
[67] T 103 L 9.
In response to questions in cross-examination challenging her account, KA denied that she did not like the accused, saying she has no memory of not liking him; denied that she wanted to get rid of the accused from the house; denied that she told her mother that the accused had touched her to get rid of him from the house; denied that the accused had never touched her; and denied that she had made up the story of the accused touching her.
KA’s mother JM
JM said KA was six weeks old when JM separated from KA’s father. JM commenced a relationship with the accused some weeks after she had separated from KA’s father. She said the accused had initially worked as a garbage collector, and then obtained work with a pea and grain factory. He moved in with her. She and the family initially lived in Hindmarsh before moving to Kilburn. JM and the accused had a son together, born in 1984. She said their relationship was attended by arguments, and physical, verbal and mental abuse. There were times when she and the accused drank alcohol to excess which led to further arguments, including arguments in front of the children.[68]
Complaint
[68] T 185 L 37.
The family moved to Pinery when their son was about six years old.[69] JM said that in late March or April 1992 she had a conversation with KA, in her bedroom, when KA said ‘Mummy, daddy’s been coming into my room in the morning and putting his finger in my fanny’. JM said that KA was upset and crying while she was telling her this. JM said that KA said it would happen in the mornings when her mother and brother were still sleeping.[70]
[69] T 187 L 29-36.
[70] T 194 L 24-T 195 L 19.
JM said she then called the accused into the bedroom and told him that his daughter had just accused him of something. She told him what KA said. She said she evicted the accused from the house thereafter, and he slept in a trailer at the house until JM and the children moved out of the house.[71]
[71] T 198 L 18.
JM said that during the conversation with her daughter she did not tell her daughter that she did not believe her. She said that some months later JM told the accused’s father that she thought KA had lied, and KA overheard their conversation.[72]
[72] T 106 L 25.
Evidence of RM
Background
RM said that when she was five or six years of age she moved to South Australia with her family from Western Australia.[73] The family lived initially in rental accommodation at Ottoway, and then moved to live at Enfield where RM lived with her mother, her younger brother and her father.[74] Her parents separated while they were living at the Enfield house and her father moved out of the house.[75]
[73] T 118 L 11.
[74] T 118 L 35-T 119 L 17
[75] T 121 L 7.
In cross-examination RM described the house has having three bedrooms, one for each member of the family. Jake had a double bed in his bedroom. RM had a bunk bed in her bedroom.[76] She alternated between sleeping in the top and bottom bunk bed, but preferred the bottom bunk bed and slept there more often.
[76] T 121 L 21; RM was living at the Enfield house [see Exhibit P14] and her brother Jake was in the double bed marked in Exhibit P15.
At some point, although RM could not say when, she swapped bedrooms with her brother because the adjoining bathroom wall to her room had salt damp, which made her sick. All the furniture in both rooms still remained in the same positions.
Meeting the Accused
RM’s first memory of meeting the accused was at the Enfield house.[77] The accused began a relationship with RM’s mother and he started living at their house. He slept in the same room as her mother. RM described their relationship as one of stepfather and stepdaughter, but she always called him by his given name.[78] She said the majority of her memories were of the accused being drunk at the dinner table. She said that he would often fall asleep at the table, and on occasion pass out face down on his plate at the table. RM remembered that the accused drank West End Export beer every day, to the point of intoxication.[79]
General Background of Touching
[77] T 131 L 10.
[78] T 132 L 11-T 133 L 25.
[79] T 133 L 25.
RM gave evidence of the accused touching her inappropriately on the breasts and vagina. She estimated the number of times he touched her as between 20 and 30 times.[80] She said he always touched her on the vagina, but about 50 per cent of the time he also touched her breasts.[81] She said that the touching always occurred at night.[82]
[80] T 134 L 33.
[81] T 135 L 4.
[82] T 146 L 37.
She said that the first time the accused touched her she was about eight years old and in year four at school. She said the touching commenced shortly after she had her first period.[83]
First Occasion
[83] T 134 L 20.
RM said the first occasion that she specifically remembered the accused touching her on the vagina was when she was on the bottom bunk bed, which was positioned so the head of the bed was underneath the window. RM woke up to the accused touching her.[84] She said the accused put his hand down her pants and penetrated her vagina with his finger. She said it may have been the first time he had actually penetrated her, despite touching her on the vagina and breasts on previous occasions. JM thought the incident occurred in summer. She could not remember what she was wearing.[85] She could not recall how long the touching lasted for.[86]
Second Occasion
[84] T 145 L 20.
[85] T 145 L 1.
[86] T 145 L 14.
RM said the second occasion that she specifically remembered the accused touching her on the vagina was when she was nine years old.[87] She gave evidence that KA and her boyfriend Steve had come to sleep over at the Enfield house.[88] The house rules were that KA and Steve were not allowed to sleep in a bedroom together, so they slept on a mattress on the living room floor. RM decided to sleep on the couch in the living room because she wanted to sleep in a room where other people were present as it would be safer. She said the accused had touched her before and she wanted to prevent it from happening again.[89]
[87] T 140 L 35.
[88] T 138 L 26.
[89] T 141 L 28.
RM said that during the night, the accused came to the couch, leaned over RM and attempted to touch her. She said that she had hoped that if she stirred it would be enough to stop the accused from touching her, so she rolled back towards couch, such that she was facing the back of the couch. The accused waited a bit before propping her leg against the back of the couch so her knee was raised. He then placed his hands under her shorts from the back and commenced to touch her. He inserted a finger into her vagina and was rubbing it for a while. RM then coughed and stirred, at which point the accused left the room.[90]
[90] T 139 L 4.
RM said no words were exchanged with RM and the accused during the entire time he was in the living room. RM said she was ‘frozen in fear’ and did not know what to say.[91] RM said the touching lasted about two to three minutes but it ‘felt like forever’.[92] RM said that that was the only time the accused touched her inappropriately when she was on the couch that she could recall.[93]
[91] T 141 L 23.
[92] T 140. L 32.
[93] T 147 L 11.
RM said she could not recall what lights were on if any, but she could see that it was the accused touching her.[94] She could see the accused’s beard and smell the strong scent of cigarettes and beer. She said that the cigarettes were a familiar smell as the accused always used the brand White Ox rolly tobacco.
[94] T 140 L 1.
RM said that KA and SB were lying on the mattress at the time. RM presumed that they were asleep. When asked about SB’s appearance, RM said that he was 18, the accused was around 40 years old and they did not look alike. RM agreed that her mother was home at the time.[95]
Third Occasion
[95] T 141 L 2.
RM said on the third occasion that she specifically remembered the accused touching her on the vagina, she had decided to sleep on the top bunk bed. She was wearing pink and white pyjamas, the shorts of which tied-up from the front. She said she had tied the shorts tightly around her waist to try and prevent the accused from reaching into her pants.[96]
[96] T 142 L 7.
The bunk bed was situated in the position shown in Exhibit P14. It had rails on either side to stop a child falling from the top bunk and it had a ladder. RM said she was laying with her head at the head of the bed, with her legs towards the end.
She said the hallway light was on, allowing RM to see the accused standing at the door looking into her room. The accused entered and RM smelled the strong scent of cigarettes and beer again. The accused reached up to the top bunk and ran his hand down JM’s body from her breasts on the outside of her shirt then stopped at her vagina. He touched her through her pants for a little while before reaching his hands under her shorts and touching her vagina on top of her underwear. He then touched her vagina ‘skin-to-skin.’ She said that it appeared that his other hand was inside his pants and JM thought he was touching himself. She said that episode lasted for some 10 minutes.
RM said she remembered that it was a hot night so she had kicked the blanket off the bed, gone to the linen cupboard and retrieved a sheet from the linen cupboard which she wet to cool her down.[97] By the time the incident occurred, the sheet was no longer wet, but it was still over her.
Number of Times Touched
[97] T 144 L 3.
RM agreed that she had given evidence in the current trial that the accused touched her between 20 and 30 times.[98] RM agreed that she had given evidence in an earlier trial of these charges in 2019. Although she said she did not recall saying then that the accused had touched her “probably at least 30 plus times”,[99] she said it was possible that she had given that evidence. She said it was therefore possible that what she said in evidence in 2019 was different to the evidence she gave in the current trial.[100]
[98] T 164.
[99] T 165.
[100] T 173 L 36-T 174 L 8.
She said in cross-examination, in the current trial, that she was fairly certain that the accused had touched her around 20 to 30 times. She then acknowledged that she had not said ‘if not more’ when giving evidence-in-chief.[101]
Accused Urinating
[101] T 165 L 27.
RM said that on occasions the accused would urinate in her closet. She could not actually see that from her bed, but just perceived it.[102] She said that the accused urinated in other parts of the house on quite a number of occasions, but she could not quantify precisely how many times. She said sometimes he urinated in the wardrobe in her bedroom.[103] RM she would go to bed and it would be wet and smell strongly of urine in the corners of the bed.
Relationship with KA
[102] T 146 L 7.
[103] Exhibit P15 – plan of bedroom at Enfield house.
RM said that she knew KA from the time the accused commenced a relationship with RM’s mother.[104] She said her relationship with KA was one of siblings, in that they were close, despite fighting often.[105]
[104] T 148 L 3.
[105] T 148 L 7.
RM said she had never said anything to KA after the accused had touched her inappropriately on the couch, even though she was with KA the following day. That was because she did not think KA, or anyone for that matter, would believe her, especially because KA was essentially the daughter of the accused.[106]
[106] T 148 L 20.
RM said she had since been made aware that there was an allegation that the accused committed sexual offences against KA. She said that when she was much younger she had heard ‘hearsay stories’,[107] but in 2015 she was made aware of the specific allegations by a detective in this case.[108]
[107] T 153 L 25.
[108] Detective Wildin.
RM said she had told KA of her own allegations against the accused, but had not provided KA with any detail of the physical acts allegedly performed upon her.[109] That was because she did not feel the need to relive the incidents or get into specific details. When asked in re-examination what she meant by ‘specific details’, she responded ‘there was never any 'This happened' or 'That happened', it was just that, yes, I was sexually abused.[110] RM said that neither she nor KA said words to each other to the effect that ‘[the accused] was coming into my room and touching my vagina at night'.[111]
Initial Complaint
[109] T 154 L 10.
[110] T 178 L 26-28.
[111] T 175 L 34.
RM made an initial complaint to her half-sister MF.[112] RM said she was in year six at the time and told her half-sister at school.[113] RM said that officials from Child Welfare, and the police, then became involved.
Interview by Police
[112] MF was not called to give evidence.
[113] T 148 L 29.
When RM was asked if she recalled a situation where she was interviewed at the Holden Hill police station about the allegations, she said she recalled the interview generally, but did not recall anything she said specifically.[114]
[114] T 166 L 23.
RM said that she remembered an occasion when officers from Child Welfare were present, but did not recall police officers being present. She said that the name Kimberly ‘rang a bell’,[115] but did not recall being interviewed by her. She said that she just recalled that she told someone what the accused did to her. She did not now remember anything that was said in the interview.
[115] T 166 L 13.
In cross-examination she was asked whether she remembered saying in that interview:
·On the first occasion you had been sleeping in bed with no clothes on and only a sheet covering you, due to it being summer and hot. You described how she woke up to find [the accused] in her room, [the accused] had tried to hide from [RM] in the bottom bunk in her bed. She was sleeping on the top bunk but [RM] had been - that is you had been scared and seen him hiding in the reflection in the mirror on the opposite side of the room. When you woke in the morning you said that you did not have the sheet over you and were worried about how it fell off the bed, as you don't move around at night;[116]
·That the alleged offending involved three separate occasions, two of which occurred in her bedroom which woke her during the night;[117]
·That on the third occasion she described she was sleeping in the lounge room with a T-shirt, underwear and skirt on, she had woken up when she felt [the accused] touching her on the vagina. She said [the accused] quickly pulled his hand away, turned off the fire and left the room;
[116] T 167 L 2.
[117] T 172 L 4.
RM said she had no specific memory of saying any of those things, but it was possible that she had said them. She agreed that she would have wanted to tell the officers everything ‘happening at home’[118] in as much detail as possible.[119] She also agreed that her memory of the alleged events at that point in time ‘should have been better than it is now’.[120]
[118] T 166 L 34.
[119] T 167 L 1.
[120] T 173 L 2.
When asked to turn her mind back to the couch incident, and asked if she was certain that the accused only touched her when she was on the couch on one occasion, she said ‘I believe it was only one occasion but it could have been more than one occasion.[121] She agreed that in evidence she had said that it was only the one occasion. RM said that her answer changed between examination and cross-examination in light of hearing the part of her statement that she did not remember making, which caused her to question whether she was 100 per cent certain of there having been only one occasion. She disagreed that she changed her answer because the statement made it look as if she was not telling the truth.[122]
[121] T 173 L 6-8.
[122] T 173 L 21.
She did not accept that when interviewed by Child Protection Services and Detective Baker she had only mentioned three incidents. She speculated that her account had been incorrectly noted.[123] RM agreed that she did not not have any recollection of being touched by the accused on the couch other than the occasion she described in evidence.[124]
After the Incidents
[123] T 176.
[124] T 173.
Less than two months after speaking to the child welfare officers, RM moved to a house in Blair Athol, along with her mother, brother and eventually the accused.[125] She was not precisely sure of the reason for the move, nor was she precisely sure of when the accused moved back in. She said that the frequency of the accused staying overnight increased until he was again living with them, much like the situation at the Enfield house.
[125] T 150 L 10.
At that time, RM said she was concerned that the touching would continue,[126] but, she said, the accused never touched her inappropriately at the Blair Athol house. RM stayed at the Blair Athol house for two to three months before moving to live with her grandparents for six months after altercations with her brother caused difficulties at home.[127] She then returned to living with the accused and her mother at Blair Athol.
[126] T 175 L 2.
[127] T 151.
RM’s mother and the accused separated in early 2001 when RM, her mother and brother moved to Western Australia.[128] About six months later the accused also moved to Western Australia. Arm agreed in cross-examination that a year later, when she was 15 years old, she moved in to live with the accused and his new wife Robyn and two other boarders. RM said she was not invited to the wedding between Robyn and the accused, and her relationship with Robyn was ‘stand off-ish’.[129] RM said that when she moved in with Robyn and the accused, she was no longer concerned that the accused would touch her inappropriately.[130]
Whether RM Liked the Accused
[128] T 155.
[129] T 153.
[130] T 175.
When asked whether she liked the accused, RM she said that it was complicated because even though she held a grudge towards him, he was still like a father figure to her. She went on to say that despite everything that occurred, she found it difficult to remove herself from the situation because he was still family.[131]
[131] T 174 L 4.
RM denied in cross-examination that she had made up the allegations against the accused to get rid of him from her house when she lived with him, and denied that she was lying.[132]
[132] T 176 L 9.
Evidence of RM’s mother DB
DB said the father of RM, and the accused, is Norm. She said that at various times the family lived in Victoria, New South Wales and Western Australia. She and Norm ultimately moved to South Australia when RM was about six years old.[133] They lived for a short time at Ottoway, before moving to the Enfield house. She then separated from Norm and commenced a relationship with the accused when RM was about seven years old. The accused then started living at the Enfield House. The accused worked shift work in a grain plant.[134]
[133] T 118 L 16.
[134] T 132 L 37.
DB described her relationship with the accused as a ‘fairy-tale romance’.[135] She said the accused was a heavy drinker. He would drink to the extent of being drunk every day. His ritual was to come home and drink. There were times when she wasn’t actually sure if he was awake or asleep while he was eating his dinner. There were times when the accused urinated inside the home at Enfield. She said that occurred regularly in her bedroom and got worse as time went by. She said she would raise that issue with the accused the next morning, but he could never remember doing it.[136]
[135] T 216 L 10.
[136] T 219 L 12.
She said the accused smoked White Ox rolling tobacco, which had quite a strong smell. When the accused came to bed he would smell of cigarettes, beer and grain.
DB said there were times when KA and her boyfriend Steve stayed at the Enfield house. On those occasions they would sleep in the lounge room.
DB said there was an occasion when she went to school to pick up the children and told that they had been taken ‘by the welfare’. She thought that RM was about 11 years old at the time. Following the welfare officers involvement, she continued to live at Enfield for a short period, and then moved to Main North Road. RM went to live with her grandmother in Victoria for between six months and a year.[137]
[137] T 223 L 35.
DB said she left the Main North Road house and moved to Davoren Park with her two children, RM and Jake, before moving to Western Australia with the children in January 2001. The accused subsequently moved to Western Australia and lived with her and her two children for about four months. She eventually separated from the accused in April 2002.[138]
[138] T 224 L 28.
The evidence of RM’s mother DB, that she was aware, having been told by KA’s grandmother, Shirley, that something had happened between the accused and KA, she was being particularly watchful.[139] She did not give evidence of having observed any inappropriate, or even suspicious behaviour.
[139] T 226.
Evidence of Detective Wildin
Detective Wildin was the case officer. In September 2014 she was allocated responsibility to investigate a report that had been made by KA against the accused at the Salsbury Police Station on 12 September 2014.
Detective Wildin made inquiries of Child Protection Services to obtain documents relating to KA, and to RM.[140] She did not obtain any documents relating to KA.
[140] T 231.
Detective Wildin was able to obtain some documents from Child Protection Services. Those documents referred to an investigation by SAPOL in 1999 in relation to a complaint made RM. Detective Wildin attempted to obtain any recording or transcript of the interview that was conducted with RM in 1999, without success. Detective Wildin was able to access SAPOL records which revealed that a decision was made in 2002 to have the matter ‘filed’, meaning that was when the investigation was completed.[141]
[141] T 234 L 5.
Defence Case
As I have said, the accused did not give evidence. I bear in mind that the accused was not obliged to give evidence, and cannot be criticised for exercising that right. The fact that the accused did not give evidence does not in any way strengthen the prosecution case. In order to convict the accused of any charge I must be satisfied of the strength of the prosecution beyond reasonable doubt.
Evidence of Robyn
Robyn gave evidence that she commenced a relationship with the accused when she was 18 years old, in about 2004, and married the accused on 20 October 2007. They separated in December 2020. They remain estranged but not divorced.[142]
[142] T 245.
Robyn said that she knew both KA and RM.[143] She invited KA to her wedding and hen’s night, both of which KA attended.[144] She said KA and the accused attended her wedding, and interacted with him in a happy manner. She said she observed them hugging, laughing and joking on that occasion. Robyn said she could not find any photos of KA and the accused together at the wedding.[145]
[143] T 246.
[144] T 254.
[145] T 254.
Robyn said that in 2009 she and the accused went to Adelaide for a holiday and they stayed with KA for two weeks. She said that she slept at KA’s house each night for two weeks. She disagreed that she invited herself to stay at KA’s house, and that she only stayed there for two nights.[146] She said that during that visit the accused had positive interactions with both KA and her three children. There were also times that the accused interacted with KA’s children without KA being present. Robyn said she had made the same observations regarding the interactions when she visited Adelaide again in 2011. On that occasion she did not stay with KA.
[146] T 256.
Robyn said that in 2011 RM accompanied her and the accused to South Australia from WA on the plane.[147] She said the interaction between RM and the accused were good, and they would laugh together. She said when RM was 18 years old, she lived with Robyn and the accused in WA for six months with no issues.[148] Robyn said she did not think there was any issue between the accused and either of the complainants.
[147] T 248.
[148] T 250.
Robyn was adamant[149] that all of the photographs in D12[150] were mailed by KA to the accused in a bundle before their wedding. She specifically recalled them arriving[151] with a handwritten note.[152] She said that to her knowledge, neither she nor the accused took any photographs from KA’s home when they stayed there.[153]
[149] T 252.
[150] Exhibit D12 – Bundle of photographs with note written by KA to accused.
[151] T 251.
[152] Exhibit D12 – Bundle of photographs with note written by KA to accused.
[153] T 253.
Consideration
I find, as is common ground, that as to the elements of each of the charged offences, at the time of the offending the accused was an adult, each of the complainants were children, and that there was a relationship between the accused and each of the complainants.
The real issue for determination is whether it has been established beyond reasonable doubt that the accused was in an unlawful sexual relationship with each of the complainants, or either of them.
In considering my verdicts, I accept the defence submission that the prosecution case relies essentially on the credibility and reliability of the complainants, and that there is no medical, forensic or crime scene evidence to confirm that any sexual touching occurred at any time.
I bear in mind that there is no direct evidence of the offending, no corroboration of the offending, and no admission, or even implied admission on the part of the accused who, on such evidence as there is, denied any allegations. I bear in mind however that such offending, by its nature, often occurs in circumstances where there is no such corroborating evidence.
I bear in mind the submissions of counsel for the accused emphasising the presumption of innocence and the onus on the prosecution.
Assessment of Witnesses
As counsel for the accused submitted, and as counsel for the Director of Public Prosecutions (‘DPP’) properly conceded, it is necessary to conduct a careful assessment of both the credibility and the reliability of each of the witnesses, and in particular the complainants, given that both credibility and reliability were in issue.[154]
[154] R v MAS (2013) 118 SASR 160 at [80].
As counsel for the DPP also properly conceded, having regard to the fact that the complainants were recounting incidents and events that were alleged to have taken place so many years ago, and at a time when they were relatively young children, their evidence should be carefully scrutinised.
Forensic Disadvantage
I bear in mind that the alleged offending against KA is said to have taken place between 39 and 31 years ago. The offending against RM is said to have taken place between 22 and 26 years ago. It has been 30 years since the commencement of the sexual offending alleged against the accused, and the trial. It has been some 22 years between the last of that offending and the trial. Although some allegations may have been put to the accused decades ago he was not charged until some four years ago.
I accept that the accused is under a significant forensic disadvantage. That is so in part by the mere effluxion of time, and by the changing circumstances of the complainants, the accused, and the other people involved, as well as the locations at which events are said to have taken place, and the places where each of them had lived in the intervening period.[155]
[155] R v Cassebohm (2011) 109 SASR 465 at [29].
Counsel for the accused submitted that, by the time of his arrest, the accused could not have anticipated that he may have to recall the living arrangements, and the interactions between the people involved so many years later. Counsel highlighted the frailty of memory that constitutes a difficulty when endeavouring to recall the particulars of events so long ago.
Although counsel for the accused also submitted that the passage of time denied the accused access to work records such as time sheets and work diaries, or work colleagues, to determine when and where he may have been at work, which would be relevant to the opportunity to commit the offending, that does not appear to play a significant part in the assessment of the nature of the forensic disadvantage he has suffered. It is not suggested that he was working away from home, nor that there were times when he was working night shift. Having regard to the nature of the allegations made by each of the complainants, as I have said, that does not appear to be of particular significance although I bear it in mind.
There are more specific aspects of the passage of time which have impacted on the ability of the accused to mount a defence. JM’s mother had died by the time the allegations emerged.[156] She is said to have been involved in the events immediately following the complaint by KA.
[156] T 203.
On the evidence, there are other people said to have been present during the time that the offending against RM is said to have taken place, which may have been relevant to opportunity. Counsel for the accused complained that the accused was unable to recall, let alone contact, certain witnesses. There were people alleged to have been present at the Enfield house on a regular basis during which the offending is alleged to have taken place, for example, Teal, a border who lived at RM’s house for two or three years when RM was in about year four,[157] and KA’s boyfriend Steve, whose evidence may have been relevant to the accused’s opportunity to commit the alleged offending. It was not clear what, if any attempts, had been made to contact such witnesses, although I accept that even if located, having regard to the nature of the evidence they would be required to recall, at this stage they would be unlikely to be able to materially assist. The Enfield house at which the offending against RM is said to have occurred has since been demolished.
[157] T 155.
I accept that there has been a deterioration in the memory and recall of witnesses on topics that may have assisted the accused.[158] Such disadvantage may manifest itself in a variety of ways. I accept and bear in mind that the accused may have been deprived of the ability to obtain evidence that may have assisted him, including as to his whereabouts on occasions alleged by the complainant. The accused has also been deprived an ability to marshal other evidence in support of his defence.
[158] See R v Finn (2014) 119 SASR 207 (and the cases referred to therein).
A further example of the specific forensic disadvantage arises out of the investigation of a complaint made by RM in 1999. That investigation was commenced in August 1999, by Child Protection Services and SAPOL. On 14 March 2002 the investigation ceased. No further investigation was undertaken by SAPOL until September 2014 when RM made a further report to police.[159] The accused was arrested in 2017. It is no criticism whatsoever of RM that the investigation of her complaint came to an end in 2002, nor that she reagitated her complaint in 2014. She was perfectly entitled to do so. The result however is that the accused has suffered forensic disadvantage.
[159] Exhibit P18 at [19-20].
Detective Wildin had obtained documents from Child Protection Services, which referred to that investigation by SAPOL in 1999.[160] I refer below to the 1999 SAPOL investigation and to the assessment report prepared at that time by Child Protection Services.[161] Although Detective Wildin had attempted to obtain a recording or transcript of the interview of RM that took place in 1999 she was not able to do so.[162] She established, from SAPOL records, that a decision had been made in 2002 to complete the investigation, without any action being taken against the accused.[163] Although it was suggested that the allegations had been raised with the accused at an early stage, the accused, as I have said, was not spoken to by police, and arrested, until 2017.[164]
[160] T 223.
[161] Exhibit D17.
[162] T 236.
[163] T 234.
[164] T 235 L 13.
It is an agreed fact that records of winners of the radio competition ‘Beat the Bomb’, referred to by RM as producing the funds for the purchase of figurines, were no longer in existence, and there was no record of when the competition even commenced or ended.
Cross-admissibility
I bear in mind that I must give separate consideration to each of the charged counts, and that the evidence relating to each count is different.
Counsel for the DPP submitted that the evidence of each of KA and RM was cross-admissible as similarity of account evidence. The prosecution specifically disavowed any reliance upon the evidence as demonstrating a propensity on the part of the accused. The prosecution relied on the common factors that the complainants were pre-teenage girls; in the accused’s care as a defacto parent; sexually abused in broadly similar ways; and almost all the offending occurred during clandestine visits to their beds during the night.
Although I do not consider that the complainants deliberately or actively colluded, I am concerned about the possibility of what might be termed a cross-contamination of their evidence, particularly in circumstances where the actions complained of occurred so long ago. Both KA and RM gave evidence that they knew each other and spent time with each other. Their evidence was to the effect that each knew that there was an allegation of the accused acting inappropriately towards the other. They denied knowing of any specific details of the allegations against the accused in that regard, and said they had not discussed any details of the sexual acts said to have been committed against them, with each other.[165] I bear in mind that on the evidence of JM, KA had first made a complaint about the accused’s behaviour in late March or April 1992.[166]
[165] T 67; T 154.
[166] T 194.
RM conceded that she had heard what she called “hearsay stories” about the accused’s behaviour towards KA. She said the first occasion on which she learned with any certainty, about those allegations, was when Detective Wildin had contacted RM in 2015.[167] KA, it appears was present when RM’s allegations were the subject of discussion around the kitchen table following the attendance of people to discuss the matter at the house.
Issues as to KA’s Evidence
[167] T 153.
Counsel for the accused made the submission that KA’s credibility and reliability were impaired to the extent that it was not possible to find, beyond reasonable doubt, that Count 1 was established. Counsel submitted that KA’s allegations were vague, that she had made prior inconsistent statements, and that after the events giving rise to the alleged offending, KA had acted in relation to the accused in a manner which was inconsistent with someone who had suffered such abuse.
Counsel submitted that KA had a very limited recollection of the events said to have taken place at the Pinery house. She could not provide any detail as to the period during which, nor the frequency of the alleged offending. I observe however that in respect of offending against children that is perhaps not surprising, and bear in mind that the legislative amendments which created the offence of maintaining an unlawful sexual relationship with a child (and its predecessor legislation) were enacted precisely because of that issue.
Counsel for the accused submitted that KA’s evidence that the accused committed the offending while the light was on in her bedroom, and there being no door to the room, meant that any such offending would have been potentially readily apparent to other members of the household, and in particular KA’s mother who slept in the room across the hall.[168] Counsel pointed to KA’s evidence that people could be heard moving about the house quite easily. Further, he pointed to an inconsistency in the evidence namely that KA said that she was able to see the accused due to light coming through her bedroom window,[169] contrary to the evidence of KA’s mother who said that KA was too scared to sleep with the curtains open.[170]
[168] T 45.
[169] T 44.
[170] T 75.
Counsel for the accused submitted that KA’s evidence that she told her mother that the accused was touching her inappropriately revealed an inconsistency, in that rather than an allegation that the offending occurred at night, as KA said in evidence, KA’s mother said that KA had reported to her that the offending was happening in the morning,[171] and that KA had told her mother that she had told the accused to stop touching her,[172] contrary to KA’s evidence that she never spoke to the accused, and pretended to be asleep when the offending occurred.[173]
[171] T 195-196.
[172] T 203.
[173] T 76.
Counsel for the accused submitted that KA did not like the accused, given his drunken behaviour, including urinating in the house other than in the toilet, when under the influence of alcohol. She had denied that. I bear in mind that it is not for the accused to establish a motive.
Although, as I have said, it was common ground that KA had made an allegation of sexual assault against another relative, GM, when she was three years of age. Whilst KA did not have a memory of it,[174] KA’s mother did and also said that the accused was aware of that history.[175] Counsel submitted that I could draw the inference that given the accused knew that in respect of a previous occasion of sexual abuse KA had reported the abuse, and that her mother JM knew about it, it was “inherently implausible” that the accused would carry out similar abuse against KA in a room with an open door, and the light on, when her mother was in the next room. I accept that is a matter I should take into account in assessing KA’s evidence.
[174] T 68.
[175] T 200.
Counsel for the accused further submitted that given KA’s evidence that she was present at a meeting when the allegations of RM against the accused were being discussed,[176] and learning that the allegations were of indecent touching, it was highly improbable that KA would not have raised again her own allegations against the accused. Again, I accept that is a matter I should have regard to.
[176] T 99.
Counsel for the accused submitted that the subsequent conduct by KA, in relation to her interaction with the accused, was inconsistent with an ongoing course of abuse that she now gave evidence of. The subsequent interactions were described in positive terms. KA visited with the accused,[177] and allowed her own family including two young daughters, to engage with the accused. KA sent photographs of herself and her children, at that time aged at a similar age to that which she was when she says she was subject to inappropriate touching by the accused, to the accused. Counsel submitted that had KA in fact been subject to the offending alleged against the accused, she would not have permitted the accused, as the perpetrator, to attend at her house, or to play with her children, or send photographs of her children to him.
[177] T 205.
Whilst it is not uncommon for persons who are the victims of sexual offending to maintain some interaction with the perpetrators of such offending for family or other reasons, here KA downplayed the nature of that interaction. Her evidence was contradicted by that of Robyn, and by the photographs and other material received into evidence.
Counsel also pointed to the contact from Robyn, asking if the accused was a paedophile.[178] KA did not say ‘yes’ or anything about the allegations. Rather, she responded saying that ‘it was just a case of KA’s mother causing trouble.’
[178] T 102.
Counsel submitted that there was an overt risk that the allegations had initially been made in an attempt to remove the accused from the household, which was consistent with the subsequent events in that KA subsequently had no problem living with the accused, and interacting with the accused in a positive way. Counsel submitted that those aspects of KA’s evidence meant that KA’s evidence could not be relied upon sufficiently to establish the charge beyond reasonable doubt.
The complaint evidence, whilst in some respects demonstrated consistency of conduct, also highlighted inconsistencies in KA’s account, and inconsistencies between her evidence and that of her mother.
As I have said, KA’s account of the complaint was that she had told her mother, while they were living at Pinery, that the accused had touched her.[179] KA said that in response her mother had said “you fucking liar, why would you lie about something like that?”[180] KA’s mother had denied, in evidence, that she had responded in that way. She had given evidence, as I have said, that she had said something of that sort to the accused’s father at some later stage and that KA may have overheard that comment. As counsel for the DPP submitted, it was understandable that KA had conflated events. Whilst that explanation may be correct, to some extent it highlights the problems of memory, and the conflation of memories, that may emerge in relating events from so long ago.
[179] T 61-62.
[180] T 63.
A further issue arises as a result of the conflict between the evidence of KA and that of Robyn. Although she gave evidence in the defence case Robyn, the accused’s second wife, was separated from the accused. I accept that she gave her evidence in a straightforward and unembellished way. She gave evidence of the interactions between the accused and both KA and RM, and interactions with KA’s children. She gave evidence of KA’s attendance at her (Robyn’s) wedding to the accused.[181] She said that the interactions between them were not attended by any angst and appeared to be cordial.[182] She gave evidence that when she and the accused visited KA in Adelaide, they played with KA’s children without any restriction or apparent concern.[183] She said in evidence that she had received several letters from KA, containing photographs of KA and her children, including photographs depicting the accused playing with those children.[184] She gave evidence, contrary to the evidence of KA, that she and the accused had stayed at KA’s house in Adelaide for two weeks.[185]
[181] T 246.
[182] T 246, T 250.
[183] T 248.
[184] T 249.
[185] T 246.
Counsel for the accused submitted that where there was a conflict in the evidence, Robyn’s evidence should be preferred, as she was less partisan, and no longer in a relationship with the accused, and therefore less likely to embellish evidence to assist a particular cause. I accept that submission.
In combination the matters put by counsel for the accused, the inconsistencies in KA’s evidence, the conflict with Robyn’s evidence which I accept, and all of the matters referred to above mean that I am left with a doubt as to the allegations made by KA against the accused.
Issues Relating to the Evidence of RM
In respect of the allegations by RM, counsel for the accused highlighted the inherent unlikelihood of the accused touching RM inappropriately whilst the bedroom door was open;[186] and the inherent unlikelihood of the accused doing so when RM was on the couch in the lounge room, where the accused’s stepdaughter KA, and her boyfriend were asleep in the same room. Counsel made the submission that the offending described by RM, in that context, in the absence of corroboration, simply could not be accepted beyond reasonable doubt.
[186] T 160.
Whilst the brazen nature of the alleged offending may have been attributable to the accused’s consumption of alcohol, on the evidence, at the time of that alleged offending against RM in the loungeroom, as I have said, KA and her boyfriend were present, albeit asleep. By that time KA had made a complaint to her mother about the accused’s behaviour. It may be seen as surprising that in those circumstances the accused would engage in similar offending against RM.
Counsel for the accused also pointed to the fact that the conduct of RM, following the offending, was inconsistent with someone who had been so offended against, including returning to live in the house where the accused was present, and later living with him for a period of some six months,[187] and travelling with him to a funeral.[188]
[187] T 173.
[188] T 248.
There is another aspect of the evidence which caused particular concern. Amongst the material obtained by Detective Wildin was a document which bears a facsimile date 1 September 1999 transmitted from FAYS[189] Enfield to Child Protection Services,[190] an assessment report authored by one Ms Carroll. That document is a record of the investigation of a complaint made by RM. It records under the heading ‘Outcome/Strategy’ “discussion with Bill Bates H/Hill CIB to interview [RM] at school prior to informing mother”. The body of the report goes on to record, in summary, that a home visit was conducted to ascertain information relating to the family structure. It was noted that the alleged perpetrator was RM’s half-brother. There was a joint interview with RM at the school conducted by Ms Carroll and Detective Bates.
[189] Family and Youth Services.
[190] Child Protection Services.
The report goes on to note that RM was “interviewed verbatim by Bill Bates (a copy of the transcript will be provided to FAYS).” As I have said, Detective Wildin was not able to obtain a copy of that transcript. Ms Carroll then recorded that “[RM’s] statement involves three separate occasions, two of which were describing how the alleged perpetrator was in her bedroom when she woke up during the night.”
The description of the first occasion does not make any reference to inappropriate touching. The report records:
On the first occasion [RM] had been sleeping in bed with no clothes on and only a sheet covering her (due to it being summer and hot). [RM] described how she woke up to find [the accused] in her room, [the accused] had tried to hide from [RM] in the bottom bunk of her beds (she was sleeping on top bunk) but [RM] had been scared and seen him hiding in the reflection in the mirror on the opposite side of the room. When she woke in the morning [RM] stated she did not have the sheet over her and she was worried about it fell off the bed when she does not move around at night.
The second incident was described as:
On the second occasion [RM] described a similar situation.
The third such incident reported by RM is described in the following terms:
The third incident that [RM] described was when she was sleeping in the lounge with a t-shirt, underwear and a skirt on. She had woken up when she felt [the accused] touching her on the vagina. [The accused] had quickly pulled his hand away, turned off the fire and left the room.
On the basis of that report, which I accept is a condensed summary of RM’s statement made in 1999, it appears that there were only three incidents described, only one of which involved the accused touching RM on her vagina.
Ms Carroll then recorded that “[RM] stated that she had tried to tell her mother in the past when [the accused] was in the room, but that her mother had not believed her and [the accused] had denied that it happened.” The following paragraphs of the report are redacted. Ms Carroll then concluded the report saying:
[RM] has made disclosures that [the accused] (her mother’s defacto partner and [RM’s] half-brother) has inappropriately touched her. It is also confirmed that she tried to tell her mother that this occurred and her mother told her she was a liar because [the accused] had denied it. [RM] expressed that she did not want to return home if [the accused] was there, and she was frightened that her mother would be unbelieving and angry at her.
I bear in mind that in evidence RM said that she could not remember speaking with a police officer in 1999. She said there was an interview at her school,[191] and although she remembered meeting with someone about the issues she could not remember what was discussed. She could not recall anything that was actually said at the interview.[192]
[191] T 170.
[192] T 171.
I note that in evidence RM did not accept the proposition that she had described only three incidents involving the accused. She said that perhaps she only spoke about three specific occasions that she could recall at the time, and that it was also possible that what was written down during the interview was written down incorrectly.[193]
[193] T 177.
It was an agreed fact[194] that if Ms Carroll gave evidence she would confirm that in 1999 she was working as an investigating officer with FAYS; that she had no independent recollection of the interview with RM which would have been conducted by a police officer in her presence; that Exhibit D17 was prepared from hand written notes she had made at the time of the interview and that her usual practise was to make notes and then record them in a formal typed report; that the assessment report was made without her having read the transcript of interview or having listened to a recording of the interview; and that the assessment report constitutes a summary of what [RM] had said during the interview.
[194] Exhibit P18 at [22].
Counsel for the DPP submitted that the contents of the assessment report did not amount to a prior inconsistent statement on the part of RM on the basis that RM did not concede the contents, and that it was not established that the contents constituted the entirety of the description of events provided by RM, and did not distinctly admit that the passages about which she was asked were accurately recorded.
I consider that the assessment report is a business record.[195] It is an agreed fact, and in the circumstances I accept as evidence, that Ms Carroll would have confirmed that she had made contemporaneous notes, and converted them into the assessment report. Having regard to the nature of the events leading to the making of the report I take the view that had there been descriptions of the accused touching RM on the vagina at the time of the first incident or the second incident that surely would have been recorded. Had there been a statement by RM that the accused had touched her in that fashion on numerous occasions, I take the view that surely would have been recorded.
[195] R v Perry (No. 2) (1981) 28 SASR 95.
I find that the account of events so recorded, albeit in summary, is capable of constituting a prior inconsistent statement. I find that the making of that prior inconsistent statement has been proved by the admission into evidence of the assessment report, and by the agreed facts as to Ms Carroll’s proposed evidence. That has an impact on the reliability of RM’s evidence. I do not say that critically bearing in mind the period of time that has past since the alleged events in question, and since the making of the statement summarised in the assessment report.
Counsel for the DPP submitted that even were I to find that when interviewed in 1999 RM told police and Ms Carroll that there were only three incidents involving the accused, such a finding does not sufficiently undermine the confidence that I might have in the reliability of her evidence such as to cause me to have reasonable doubt in relation to Count 2. Counsel submitted that an incomplete account of the offending was explicable, given the circumstances of the interview, RM’s age at the time, and the time that had elapsed between the alleged incidents, and may be attributable to the manner in which the interview was conducted.
The difficulty with that submission is that the interview only discloses one incident of indecent assault. The charge of maintaining an unlawful sexual relationship could not be made out on that basis. The summary of the RM’s allegations against the accused contained in the assessment report, is inconsistent with her evidence. I am left in a situation where RM’s evidence is contradicted by such record of the statement she made on 12 August 1999 as can be now ascertained. I am left in a situation where I have a doubt as to the reliability of her evidence and the extent to which I can rely upon RM’s evidence to the necessary degree to find the charge proved.
Conclusion
To state what must be obvious, the task involved in considering the evidence and determining the charges, is to ultimately consider the evidence and make a finding as to whether or not the prosecution has proved each element of a charged offence, beyond reasonable doubt.[196]
[196] Murray v The Queen (2002) 211 CLR 193 at [57].
Whilst I am suspicious, and indeed strongly suspicious, that the accused engaged in inappropriate sexual behaviour towards the complainants, given the nature of the allegations, the brazen circumstances in which such offending must have taken place if it occurred, the inconsistencies inherent in the evidence of the complainants, and the specific prior inconsistent statement in the case of RM, and bearing in mind the very high burden that rests upon the prosecution, I am left with a doubt as to whether the elements of the charged offences in relation to each count, have been proved beyond reasonable doubt.
There must be verdicts of not guilty.