R v MSP (No 2)
[2025] SADC 106
•15 August 2025
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MSP (No 2)
[2025] SADC 106
Reasons for the Verdicts of his Honour Judge Handshin
15 August 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is charged with seven counts of unlawful sexual intercourse with a person under 17. The complainant was, at all material times, the accused’s foster-sister. She was placed with the accused’s family in 1999 when she was aged 13 and remained living with the accused’s family until mid 2002, when she was 16 years old. The complainant gave evidence that she was moved to the accused’s family because her previous foster family physically abused her, including the mother, JN. After the move to the accused’s family home, the complainant alleged that from mid 2000, the accused embarked on a sexual relationship with her involving acts of digital penetration, fellatio and penis vagina intercourse, and which persisted until 2002 when the complainant left the residence. The accused was aged between 25 and 27/28 throughout the period of alleged offending. The complainant gave evidence of a number of specific episodes of alleged abuse, and said that sexual activity between her and the accused otherwise took place in the accused's bedroom on an almost nightly basis, without being detected by the accused’s parents. The complainant gave evidence that sexual activity between her and the accused was facilitated by their bedrooms being next to each other on the first floor of the residence.
The accused did not give evidence in his defence but called eight witnesses, a number of whom gave evidence that contradicted the complainant’s account on important topics, including the complainant’s relationship with her previous foster family, which bedroom the complainant slept in after her relocation to the accused’s family home and the extent of the complainant’s role on the accused’s family farm, the latter two being central features of the complainant’s allegations against the accused. It was further agreed between the parties that on multiple occasions between 1999 and 2008, the complainant had made false allegations to her biological mother that she had sex with another foster brother prior to being relocated to the accused’s family home. In the course of her evidence, the complainant adamantly denied making such allegations. The prosecution accepted that the complainant’s denials were knowingly untruthful.
Held: although aspects of the complainant’s account about the charged and uncharged acts appeared persuasive and internally consistent, the complainant’s evidence about key features of her allegations against the accused and important matters of background was contradicted by witnesses whose evidence could not be rejected. In particular, evidence that left open as a reasonable possibility that the complainant did not in fact occupy a bedroom next to the accused’s created significant problems for the integrity of the prosecution case. Moreover, the complainant’s evidence about having been abused by her previous foster family was inconsistent with letters she had written to the family and with evidence given by the mother of the family, which could not be discounted. The lies told by the complainant to her biological mother about sex with a previous foster brother and what the prosecution conceded to be her false denials in court to having made such allegations in the past, was a further cause to doubt the credibility and reliability of the complainant’s account.
The accused is not guilty of all charges.
Criminal Law Consolidation Act 1935 (SA) s 49(3), (7); Evidence Act 1929 (SA) s 13C, 13D, 34CB, 34P(2)(a), referred to.
R v Dookheea (2017) 262 CLR 402 ; Gately v The Queen (2007) 232 CLR 238; Brown v The King [2025] SASCA 40; R v Pope [2025] SADC 40; Morton (a pseudonym) v The King [2025] SASCA 29; Nieterink v The Queen (1999) 76 SASR 56; Liberato v The Queen (1985) 159 CLR 507; De Silva v The Queen (2019) 268 CLR 57; JGS v The Queen [2020] SASCFC 48; R v T, WA (2014) 118 SASR 382; R v R, PA [2019] SASCFC 19; Angus (a pseudonym) v The King [2024] SASCA 101; Bates v The King [2023] SASCA 65, applied.
R v MSP (No 2)
[2025] SADC 106
The accused, who I will from time to time refer to as ‘MSP’, is charged on Information dated 31 January 2018 with seven counts of unlawful sexual intercourse with a person over the age of 12 and under the age of 17.
The Information is in the following terms:
First Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[MSP] between the 4th day of October 1999 and the 24th day of May 2001 at Coomandook, had sexual intercourse with [AW] a person of or above the age of 12 years and under the age of 17 years, by inserting a finger into her vagina.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
[MSP] between the 4th day of October 1999 and the 24th day of May 2001 at Coomandook, had sexual intercourse with [AW] a person of or above the age of 12 years and under the age of 17 years, by inserting his penis into her vagina.
Third Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
[MSP] between the 4th day of October 1999 and the 24th day of May 2001 at Coomandook, had sexual intercourse with [AW] a person of or above the age of 12 years and under the age of 17 years, by inserting his penis into her vagina.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
[MSP] between the 23rd day of May 2000 and the 24th day of May 2001 at Coomandook, had sexual intercourse with [AW] a person of or above the age of 12 years and under the age of 17 years, by causing her to perform an act of fellatio upon him.
Fifth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
[MSP] between the 23rd day of May 2000 and the 24th day of May 2001 at Coomandook, had sexual intercourse with [AW] a person of or above the age of 12 years and under the age of 17 years, by inserting his penis into her vagina.
Sixth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
[MSP] between the 23rd day of May 2000 and the 15th day of June 2002 at Coomandook, had sexual intercourse with [AW] a person of or above the age of 12 years and under the age of 17 years, by inserting his penis into her vagina.
Seventh Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
[MSP] between the 23rd day of May 2000 and the 15th day of June 2002 at Coomandook, had sexual intercourse with [AW] a person of or above the age of 12 years and under the age of 17 years, by inserting his penis into her vagina.
The accused pleaded not guilty to the charges and elected to be tried by a judge sitting without a jury.
Overview of the prosecution case
The complainant (who I will sometimes refer to as ‘AW’) was, at all relevant times, the accused’s foster sister. She lived with the accused and his family on their Coomandook farm (the farm) from 1999 to mid 2002 when she was aged between 13 and 16.
When the complainant first moved into the farm, her older half-sister, J, was living with the accused and his family. J remained living at the farm for around 7-8 months before moving out in mid-2000 shortly after her 19th birthday.
The homestead on the farm was a double-storey residence. During the time J lived at the farm, she occupied a down-stairs bedroom not far from the master bedroom. After the complainant commenced her placement at the farm, she occupied a spare bedroom on the first floor of the homestead that was adjacent to the accused’s bedroom. There is a conflict in the evidence as to whether the complainant was re-located to the spare down-stairs bedroom after J left. This issue assumed considerable importance at trial because of the nature of some of the complainant’s allegations.
The upstairs bedrooms of the house were accessed by an internal timber staircase positioned in the lounge / dining area. At the top of the staircase was a small landing. The door to the accused’s bedroom at the top of the staircase was visible from the bottom of the staircase and, in particular, from a sofa on which the accused’s parents would often sit whilst watching television. With a turn of the head, a person sitting on the sofa at the bottom of the staircase would be able to see up to the accused’s bedroom door. The flooring in the upstairs area of the house was comprised of timber boards that would creak when walked upon and as they expanded and contracted throughout the seasons.
The prosecution case is that from around mid-2000, after J left the farm, the accused commenced a sexual relationship with the complainant. The complainant was then 13 or 14 years of age; the accused was 25 years of age. The sexual relationship commenced one night out of the blue when, having had no real relationship or interactions with the complainant beforehand, the accused entered her bedroom where the complainant was in bed but not asleep and asked if she wanted to be touched. Thinking that the accused was offering to console her because she had been lonely and upset after moving to the farm, the complainant agreed, expecting the accused to hug her. However, on the prosecution case, the accused put his hand under the complainant’s blanket and began rubbing her leg. The accused then told the complainant to join him in his bedroom which she did. After some time in the accused’s bedroom, the prosecution case is that the accused digitally penetrated the complainant (count 1) and then engaged in penis vagina sexual intercourse with her (count 2). The accused is alleged to have told the complainant not to tell anyone about what had happened, threatening to shoot her and then himself if she did. On the prosecution case, the accused kept a .22 calibre rifle behind his bedroom door.
The alleged commission of counts 1 and 2 marked the commencement of a sexual relationship between the accused and the complainant involving sexual intercourse in the accused’s bedroom on an almost nightly basis that, on the prosecution case, continued for almost two years without detection. The complainant gave evidence that sex regularly took place at 8:30pm, when the television show ‘Law & Order’ would air. The accused’s mother would leave the sofa at the bottom of the stairs to make herself a tea or coffee. This was the complainant’s ‘cue’ to sneak across the landing at the top of the stairs and into the accused’s bedroom, where sexual intercourse would occur. Sometimes the accused’s mother would not watch Law & Order and would instead play cards on the computer in the home office located on the ground floor. The complainant would hear the clicking of the computer mouse and, knowing that the accused’s mother was not in the lounge room, would creep across the timber flooring and into the accused’s bedroom.
Count 4 was alleged to have taken place an indeterminate amount of time after counts 1 and 2 and involved the accused returning to the house in an upset state and retreating to his bedroom. The complainant had been sitting with the accused’s father in the lounge room at the time the accused returned home and had a discussion with the accused’s father about the accused’s appearance. The accused’s father walked out of the house and the complainant went up to see the accused who, on the prosecution case, was sitting on his bed with the barrel of his rifle in his mouth. After some discussion, the accused is alleged to have asked the complainant to perform oral sex on him which she did.
Count 3 allegedly occurred the night after count 4 and involved an act of penis vagina sexual intercourse. The complainant gave evidence that the television show the ‘X-Files’ was playing on the television in the accused’s room on this particular occasion. By this point in time, the complainant considered herself to be in a romantic relationship with the accused.
Count 5 was another episode of penis vagina sex allegedly taking place in the accused’s bedroom. The complainant gave evidence that this was the first occasion on which she had sex with the accused whilst positioned on top of him, which caused an injury to her vagina.
Count 6 concerns an allegation that the accused had sexual intercourse with the complainant in the cabin of a Volvo truck that had been acquired by the accused’s parents for transporting grain. The prosecution case was that the complainant had been in the truck with the accused who wanted to see if she could ‘double declutch’ and split shift the gears. After some instruction, the complainant was able to drive the truck prompting the accused to tell her he was proud of her. They then had sex in the back of the cabin. The complainant was unable to say precisely when this incident occurred but she thought it was around harvest time. However, other evidence put before me, and agreed facts, indicates that the Volvo truck was not acquired until April 2002 and the complainant was not present for the 2002 harvest at the end of the year as she had left the farm by then.
Count 7 involves an alleged act of penis vagina sex in a harvester being driven by the accused. The complainant thought this incident occurred after the Volvo incident, which would place it in the harvest of 2002 by which time the complainant had already left the farm.
The prosecution case is that after assisting the accused with harvesting duties by driving a tractor and a chaser-bin, the accused told the complainant to get into the harvester with him. After finishing harvesting, the accused undid his pants. The complainant masturbated him and then sat atop him, facing away from him. Sexual intercourse took place with the complainant in this position.
The complainant left the farm in June 2002 in the context of disciplinary troubles at school and conflict with the accused’s mother. The prosecution case is that the accused thereafter took unsuccessful steps to try and have the complainant live with him, which the prosecution contend was demonstrative of his romantic interest in her.
Directions
The prosecution bears the onus of proving the guilt of the accused. The standard of proof is beyond reasonable doubt. The accused is not required to prove anything. He is presumed innocent of the charges unless and until the prosecution proves each element of the offences charged beyond reasonable doubt. In this respect, I keep in mind the comments of the High Court in R v Dookheea (2017) 262 CLR 402 at [41] concerning the standard of proof:
…being satisfied of guilt beyond reasonable doubt does not simply mean concluding that the accused may have committed the offence charged or even that it is more likely than not that the accused committed the offence charged. What is required is a much higher standard of satisfaction, the highest known to the law: proof beyond reasonable doubt.
It is a corollary of the prosecution’s burden of proof that if, having considered all of the evidence, I am unsure where the truth lies in relation to a charge, my verdict must be not guilty.
Equally, the question for me is not whether I prefer the evidence of the complainant to the evidence given by defence witnesses.[1] I cannot resolve the issues in dispute by making a choice as between the conflicting bodies of evidence.[2] The accused may be found guilty if, and only if, I am satisfied beyond reasonable doubt that the prosecution have proved each and every element of the offence under consideration.
[1] Liberato v The Queen (1985) 159 CLR 507, 515.
[2] De Silva v The Queen (2019) 268 CLR 57; (2019) 94 ALJR 100, [10]-[11].
As the finder of fact, it is necessary for me to make an assessment of the truthfulness and reliability of the witnesses who gave evidence. It is of course my prerogative to accept or reject all or parts of a witness’ evidence.
At the conclusion of the prosecution case, the accused indicated that he would not give but would call evidence in his defence. It was the accused’s right not to give evidence and I draw no adverse inference from the exercise of his right. I have not used his silence as a make weight or to fill any gaps or deficiencies in the prosecution case. To do otherwise would be to undermine the accused’s right to silence. Plainly enough, the fact that the accused elected not to give evidence does not alter the burden of proof which remains fixed on the prosecution; nor does it affect the weight that must be given to the presumption of innocence.
Similarly, by calling other witnesses as part of the defence case, the accused did not assume any burden. I will evaluate the evidence of the defence witnesses in the same way I will evaluate the evidence of the complainant.
In deciding whether an offence has been proved beyond reasonable doubt, I must have regard to the whole of the relevant and admissible evidence on that charge. This will require me to evaluate any inconsistencies in the evidence of the complainant or as between her evidence and other evidence that is before me, together with any other shortcomings in the prosecution evidence which bear upon the discharge of its burden. The significance of any asserted inconsistencies or other shortcomings in the evidence going to a particular count are to be evaluated collectively and not compartmentalised. I indicate that I have taken this approach when considering the evidence of all witnesses.
In considering the evidence and whether I am satisfied to the criminal standard of the elements of the offences, I have brought an open and unprejudiced mind to bear. I remind myself of the importance of making a decision without sympathy, prejudice or fear.
I must give each of the charges the accused faces separate consideration by reference only to the evidence admissible in support of a particular charge. The charges do not rise or fall together. My verdict in relation to any one charge cannot dictate my verdict in relation to the other charges.
In the course of final submissions, the prosecutor, Ms N Moore, submitted that the evidence of each count was cross-admissible in relation to each other count for classic non-propensity purposes,[3] namely to provide important explanatory context for the charged acts including:
-to explain that counts 3 to 7 did not ‘come out of the blue’, but represented ongoing incidents as part of the sexual relationship, the commencement of which was demarcated by the alleged commission of counts 1 and 2;
-to assist in informing any criticism of shortcomings in, or confusion related to, the complainant’s account as to some counts (because of the alleged commission of a multiplicity of offences);
-to assist in explaining why the complainant continued to acquiesce in or submit to ongoing sexual activity and to help understand why she made no complaint about the accused’s conduct;
-to assist in explaining how the accused may have come to feel sufficiently confident to maintain a sexual relationship with the complainant over an extended period of time.
[3] Nieterink v The Queen (1999) 76 SASR 56.
Having applied the test for admission prescribed by s 34P(2)(a) and (3) of the Evidence Act 1929 (SA) (Evidence Act) I am satisfied that evidence of each count is cross-admissible for these purposes, and senior counsel for the accused did not suggest to the contrary.
These are the only uses that can be made of the evidence of each count, if I accept it, as to each other count. The evidence cannot be used to reason that, if the accused engaged in one or more sexual acts with the complainant, he was a bad person or the sort of person more likely to have committed another charged act or acts. Nor can my satisfaction as to any charged act, be used as a substitute for proof beyond reasonable doubt of any other charged act or acts.
Forensic disadvantage
I say something now about the significant forensic disadvantage that I consider the accused confronts in defending allegations which date back more than two decades. Whilst s 34CB of the Evidence Act has no application to trials before a judge sitting without a jury,[4] the principles enshrined in s 34CB emanate from the common law’s recognition of the impact of delay on an accused’s ability to test and challenge a prosecution case and to marshal evidence relevant to his or her defence of a criminal charge. It will be appropriate for a judge sitting without a jury to apply these principles when evaluating whether the prosecution has met its burden of proof in circumstances in which s 34CB would otherwise apply.
[4] JGS v The Queen [2020] SASCFC 48, [146]; R v T, WA (2014) 118 SASR 382, [21]-[22]; R v R, PA [2019] SASCFC 19, [85]; Angus (a pseudonym) v The King [2024] SASCA 101, [45]-[46].
It is apparent from the brief chronology set out earlier, that the allegations against the accused date back to 2000-2002. The complainant gave evidence, and was cross-examined, in 2018 and 2021.[5]
[5] P20, [21]-[23].
The significant forensic disadvantage to the accused has a number of dimensions. For one, the lengthy passage of time may have impacted upon the accused’s memory of the relevant events and surrounding circumstances and hence impaired his capacity to instruct his lawyers and test the evidence of the complainant in particular. Had the trial (by which I include the trials at which recorded evidence was taken) been conducted more proximately to the alleged events, the accused may have been able to give or lead evidence as to his whereabouts or movements on a particular occasion, or who he might have been with, which might have revealed inconsistencies related to or implausible aspects of the prosecution case. The accused may have been in a position to marshal documentary or other evidence in support of his defence of the charges.
In addition, the accused’s father, TP, passed away in 2023,[6] and it can be inferred that there are other witnesses who, but for the passage of time, may have been in a position to give evidence relevant to the defence case including what I will refer to later as the ‘circumcision’ conversation. TP was, potentially, a very important witness having regard to the complainant’s allegations concerning count 4 in particular; her evidence about how much of the alleged offending took place in the accused’s bedroom; the work that the complainant performed on the farm which was said to have given rise to the opportunity for the commission of counts 6 and 7; the circumstances and timing of the acquisition of the Volvo truck (a matter that was the subject of evidence) and whether gear shifts in that truck required double declutching (count 6).
[6] TT67.
The passage of time may have also impacted the memory of the complainant.[7] The complainant may have become convinced that a particular event or incident took place even though it did not or may have forgotten or misremembered details that would be to the benefit of or otherwise significant to the defence case. There were numerous occasions during the course of the complainant’s evidence where she was, for example, unable to remember when certain incidents were alleged to have taken place, which, had they been identified with more precision, might have given rise to an opportunity for the accused to demonstrate that the incident could not have occurred when or in the circumstances described by the complainant. The loss of the forensic tools available to the accused to test and challenge the evidence of the complainant on account of the passage of time may in turn have impaired his ability to demonstrate the unreliability or lack of credibility in the complainant’s evidence.
[7] I make it plain that the only relevant disadvantage in this respect is that experienced by the accused on account of the lack of precision in the evidence of the complainant as to some matters of timing or other contextual details for example: Bates v The King [2023] SASCA 65, [55]-[60].
Accordingly, I am satisfied that the effluxion of time since the commission of the alleged offences has resulted in a significant forensic disadvantage to the accused that I will bring to account when scrutinising the prosecution evidence.
Elements of the offences
For each charge, the prosecution must prove that the accused had sexual intercourse with the complainant when she was over 12 but under 17 years of age. Sexual intercourse is defined to include penetration of the labia majora by any part of the body of another person and fellatio.
Consent is no defence to a charge of unlawful sexual intercourse.[8]
[8] Criminal Law Consolidation Act 1935 (SA), s 49(7).
There was no dispute between the parties that if the charged acts were proved beyond reasonable doubt, the elements of the offences would be made out. The only issue at trial was whether the prosecution had proved that the accused engaged in the conduct alleged.
The trial
These proceedings have a protracted and unfortunate history, which is discussed in my reasons for granting a conditional stay of this trial,[9] and which it is not necessary to now repeat in any detail, save to explain why the evidence was put before me in the way it was.
[9] R v MSP [2025] SADC 40.
This trial was the eighth trial of the charges.
The prosecution did not call any witnesses at this trial. Instead, it relied on the recording of evidence previously given by the complainant and the exhibits tendered during previous trials which were put before me by consent, with their original exhibit numbers, in a trial book marked P1A. Accordingly, where reference is made to exhibit numbers throughout the course of my reasons, I am referring to the original exhibit numbers given to various documents at previous trials, noting that each of those exhibits formed part of P1A before me. Additional exhibits tendered during this trial were given exhibit numbers following on from the original exhibit numbers.
As noted, evidence given by the complainant at earlier trials in 2018 and 2021 was recorded pursuant to s 13C of the Evidence Act and was played before me pursuant to s 13D of the Evidence Act by consent.[10] In accordance with the reasons of the High Court in Gately v The Queen (2007) 232 CLR 238 and the observations of Livesey P in Brown v The King [2025] SASCA 40 at [210]-[222], I marked for identification the discs containing the audio visual records of the complainant’s evidence instead of receiving them as exhibits. Transcripts of the complainant’s recorded evidence were received as aides (MFIP14, MFIP15 and MFID24A).[11]
[10] MFIP7-MFIP10.
[11] I will refer to passages from MFIP14, MFIP15 and MFID24 only by reference to ‘Tx’ where ‘x’ is the page number of those exhibits. To avoid confusion, I will refer to passages of the trial transcript before me using the acronym ‘TT’.
I have not allowed the fact that the complainant’s evidence was put before me by way of the playing of recordings to influence the weight I have given to her evidence, nor do I draw any adverse inference against the accused because the evidence was put before me in this way.
For the purpose of hearing the application for a temporary stay, I became aware of the fact that some of the previous trials miscarried and that there was a successful appeal against convictions. I have not allowed the fact that this was not the first trial of the charges to influence my approach to the evidence or the findings I make. I do not draw any inference adverse to the accused from the fact that he has previously been convicted of the charges. To the extent that I remain uninformed about why there have been 7 previous trials, I do not speculate about the reasons there have been so many previous trials of the charges.
The evidence of the complainant
The complainant was born on 24 May 1986. At the time of her recorded evidence, she was 32 and 35 years old.
The complainant’s time with the N family
The complainant had a difficult upbringing. She was placed in foster care from a very young age together with one of her younger sisters, T.[12]
[12] T29.
The first permanent foster placement the complainant had was with the N family: JoN and JN and their three children, one of whom I will refer to as LN. The complainant lived with the N family between July 1990 and October 1999, at which point she moved in with the accused’s family at Coomandook.[13] She was then 13 years of age.
[13] T29-30; P20, [8].
LN was 12 or 13 years old at the time the complainant began living with the N family.[14]
[14] T86.
The complainant gave evidence that she was subjected to violence by both JoN and JN during her time living with the Ns. She described JoN as a violent alcoholic. She said that she and her sister, T, fought with each other on an almost daily basis and that she ultimately went to stay with the accused’s family because she ‘had had enough of being beaten up by my foster father at the time’.[15]
[15] T30.
In cross-examination, the complainant said that whilst the suggested reason for her leaving the N family was that she and T were not getting along with each other, that was not the real reason for her move.[16] The complainant accepted that she fought terribly with her sister over the nine years she lived with the N family and that they would ‘beat each other up’. The complainant rejected the suggestion that the N family arranged for the complainant to be re-located out of a fear that she would hurt her sister. She added:[17]
ANo, no, no, the foster father was an alcoholic and he used to beat us up and I'd had enough on it because he pushed my sister into the bath, she hit her head on the tiles on the wall on the other side of that bath because she wet her bed. He rubbed her nose in it, I'd had enough, I'd stand there and try to defend my sister, I felt sick watching that. All right, so I said to them 'I've had enough'. I went down to the phone box down in the main street, I rang up the child abuse report line because I'd had enough of him beating us up and rubbing her face in her wet bed because she had a bed wetting problem and I was sick of seeing that, and so I rang up about it and when the police came out, out there everyone knows everyone, it is a small country town, everyone knows everyone. The police knew the foster carers. So they turned around and said 'You don't want to make lies about these people' blah, blah, blah. They left us there and when they left I still did not want to stay there. I pressed the issue that I wanted to leave, I'd had enough.
QThank you. Have you finished.
AYes.
[16] T77.
[17] T88.
Elaborating on the circumstances in which the move came about, the complainant said later during cross-examination:[18]
[18] T89-91.
QJust so that I'm clear, just so that you've got the opportunity to answer this, at no time did [JoN] ever beat you while you were living there.
AYes, he did.
QYou had a good time living with that family, didn't you.
AThere were good times but there were also hard times too.
QThey were a loving caring couple to you, both [JN] and [JoN], weren't they.
ANo. Far from it.
QThat's what you thought of them, that is that they were lovely to you.
AThat's what I think they are?
QYes.
ANo.
QThat they created a good family environment for you.
ANo.
QYou say, do you, that [JN] beat you as well.
AYes.
Q[JN] never beat you.
AYes, she did.
QMs [AW].
AYes, she did.
Q[JN] was kind and patient with you, wasn't she.
ANo.
QThe reason that you left their care is because of the continual violence that you perpetrated on your sister [T], do you agree with me.
ANo.
QYou are, in effect, saying to the jury that you left because of your claim of them abusing you, is that right.
AYes, I didn't want to be there anymore and [JN] made the call, she told me to sleep on it.
QSorry.
AShe told me to sleep on it.
QWho said that.
A[JN] did and then the next morning she was on the phone to them, because she asked me if I still wanted to leave and I said 'Yes' and she asked me where I think I'm going to go and I said 'I don't care, as long as I'm not here, I don't care where I go'. She rang up, I went in my room, I didn't hear the conversation, what was said, I went to my room.
QJust so I'm clear with you, the reason that you left wasn't because of a decision of yours, it was a decision made by [JoN] and [JN] because of their concern that you were going to harm [T].
ANo.
QOr [T] might harm you.
A[T] and I were both as bad as each other. I'm not saying that we gave it to them easy, but at the same time I'm not saying they're innocent in all of this either.
QThey were concerned that the two of you might end up seriously hurting each other and that's why you needed to be separated, that's the truth, isn't it.
AI do think that we needed to be separated, but that's not how it came to be at that point.
QThis was never, ever a case of you wanting to leave because of this claim of yours that they were beating you.
ACan you say that again?
QYou didn't leave because of any perception on your part that you were being beaten.
HIS HONOUR
QThat's a question.
AI didn't leave -
XXN
QThey never beat you ever, either of them.
AYes, they did.
QNow you - sorry I'll just ask you a few more questions about when you were at the [N’s], do you agree that you used to steal from them.
AYes.
QDo you agree that you used to lie to them.
AYes.
In further cross-examination on this topic, the complainant reiterated that JoN was an alcoholic who used to beat her and her sister.
The complainant accepted that there were good times when she lived with the Ns but also ‘hard times’ and she denied that JoN and JN were a loving, caring couple to her and that they created a good family environment.
The complainant maintained that JN also beat her and rejected the suggestion that JN was a kind and patient foster mother to her.[19]
[19] T89-90.
The complainant acknowledged that she used to lie to the Ns and steal from them.[20]
[20] T91.
The complainant agreed that her first born child, who I will refer to as AB, went to live with the N family from the time he was very young and that he had continued to live with them ‘ever since’. She agreed AB had taken the ‘N’ name.[21]
[21] T93-94.
In the context of her evidence about the nature of the household environment during the time she lived with the N family and her allegations of physical abuse, the complainant was cross-examined about a number of letters she had written. The first, D10, was a letter the complainant wrote to her son AB, then living with the N family, on 10 October 2004:
To [AB],
Hi sweetie, how are you? I hope that you are well and going great. Mummy is doing really well. I love you lots darling & I miss you dearly.
You are a beautiful little boy, whom I am really proud to call my son.
Your Great Uncle loves you very much also and says to say ‘hello’ to you.
I do have some good news for you [AB]. And that news is that you have a baby brother/sister on the way! :)
Mum has sorted out her head now so hopefully you will be home soon.
You have a good home at the moment though so I know you will be well looked after until that time when you come home to mummy.
Well Id better send this off to you now, also because the sooner I send it – the sooner you get it…
Lots & Lots of Love,
From Mummy xxx
P.S – Mummy loves you very, very much – Don’t ever doubt that.
After being taken through the contents of the letter, and in particular the characterisation of the N household as a ‘good home’ where AB would be well ‘looked after’, the complainant maintained that JoN and JN had ‘regularly’ beaten her as a child.[22] The complainant said however that JN was ‘not as bad’ as JoN in this respect, as JoN would get drunk and impatient and ‘lose the plot’.[23] With further testing of her evidence on this point, the complainant said JN would go ‘overboard with her punishments’.[24]
[22] T95.
[23] T95-96.
[24] T96.
The complainant was asked whether she continued to refer to JN as ‘mum’ after leaving the N family. She said she could not remember but it was possible she did. She denied having fond memories of her time with the N family or thinking that JN was a good foster mother to her. She rejected the suggestion that she wanted to return to live with the N family after she left; that she missed the environment; that she loved the N family and missed them all.[25]
[25] T96-97.
The complainant was subsequently cross-examined on a further letter (D11) she agreed she had written, this time to JN on an unknown date, but which must have been some time after AB’s birth:
Hey mum,
Just a quick note 2 let you know that my new Phone no. is: [suppressed].
How are you all going? Im doin really well now & Im getting my life back on track but still getting a little stressed out now & again but I have learned to keep myself under control now, which is good.
Im on the waiting list for housing at the Housing Trust & Centacare so hopefully a house should come up within the next couple of months.
I read the emails between Dad & [T] –
Interesting!
Shows the low-life person that he really is I think! :)
Please say hi 2 dad, [T] & [AB] for me & send them all of my love.
No-one could ever mother me the way you ever have, I just wanted you 2 know that you mean the world to me & that I love you as much as I would if you were my ‘biological’ mum.
I love you all very much & miss you all dearly.
All my love as always,
[AW] xxx
P.S – I was just wondering if I could stay for a weekend as Im missing the family environment with you all? Think about it then msg me or something.
The complainant was taxed at some length on some of the expressions she had used in this letter. As to calling JN ‘mum’, she said that she had been brought up to do so. She said the reference to someone being a ‘low life’ was a reference to her biological father; not JoN who she had asked JN to say ‘hi’ to for her. After being taken to those parts of the letter in which she wrote that ‘no one could ever mother me the way you ever have’; that she loved JN ‘as much as I would if you were my biological mum’; and that she wanted to stay with the Ns for a weekend as she was missing the family environment with them, it was again put to the complainant that JN never beat her. The complainant adhered to her evidence that she had.[26]
[26] T98-99.
The complainant agreed that the N family’s youngest son, LN, lived at the house during her placement, until leaving around 1997 after he completed high school. The complainant was asked whether she had any sort of sexual relationship with LN. This passage of the complainant’s cross-examination is important and I set it out in full:[27]
[27] T102-103.
QWith respect to [LN], you never had any sort of sexual relationship with him, did you.
ANo.
QThere was never any sex between you and [LN] -
ANo.
Q- was there.
ANo.
QThat never happened.
ANo.
QYour mother is [DB], isn't she.
A[DB], yes.
Q[DB], sorry. That's a yes.
AYes.
QThat's your biological mother.
AYes.
QYou told her on a number of occasions, didn't you, that you were having sex with the [N]' son, [LN].
ANo. No.
QYou said that to her in about 1999, didn't you.
ANo.
QAnd you said that to her again in 2002, didn't you.
ANo. It never happened.
QPardon.
AIt never happened.
QWell, I know that it never happened, but you said to your mum that it did, didn't you.
ANo. No.
QYou said specifically to your mum that you had had sex with [LN] -
ANo.
Q- didn't you.
ANo.
QIf you can be shown this document. I want you to read that document. You've read the document.
AYes.
QHaving read that document, do you agree that you told your mum that you had had sex with the [N]' son, [LN].
ANo.
QDo you agree that you told her that in about 1999.
ANo.
QDo you agree that you said to your mother that it was a mutual thing.
ANo.
QAnd that you were not upset by it but you were just telling your mum about it.
ANo.
QIf you told your mum that you had had sex with [LN], that would not be true, would it.
AIf I told her that -
QIf you had said to your mum that 'I had sex with [LN]', that wouldn't be true, according to you.
AThat's right.
QIf you had said that to your mum, that would be a lie to your mother.
AYes.
QIf you said it to her, you would be lying to her about having had sex with your foster brother.
AYes.
QAnd that's exactly what you did do, you did tell your mother that, didn't you.
ANo.
The document which senior counsel for the applicant put to the complainant during the above exchange is D12 – a record prepared by a social worker, Ms Kenny, who had dealings with the complainant during her placements. D12 records:
Date-Time
Nature-Record of Contact
13/8/02
T/c to [DB] to see how things are going.
Re [AW] telling her of having sex with Ns’ son [LN]. [DB] said [AW] first told her about this 3 years ago, then mentioned it again last year. Then recently mentioned it again. [AW] had said that it was “a mutual thing” and just mentioned it again “by way of information”, not because she was upset by it.
As to the provenance of D12, its compilation and significance, the following facts were agreed between the parties in D13:
R v [MSP] – Agreed Facts
1. Jean Kenny was employed by the Department of Human Services in South Australia (‘the Department’) from 1985 until November 2003.
2. Jean Kenny was a qualified social worker and worked in a number of offices in the metropolitan area.
3. Jean Kenny met [AW] when she was still in placement with the N family in Karoonda.
4. Jean Kenny was the Ns’ foster support person, but she did not have direct contact with [AW] while she was with the Ns’.
5. When [AW] went to live with the [Ps], Jean Kenny became her case worker ([AW] was around 13 or 14 years old).
6. As [AW’s] case worker Ms Kenny was responsible for overseeing [AW’s] welfare.
7. The Department keep records in relation to children they care for during their placements.
8. Ms Kenny would make notes soon after she had contact with anyone who was involved in [AW’s] life.
9. The typed notes in Exhibit D12, made by Ms Kenny, form part of the business records of the Department.
10. It is important that conversations that include complaints of a sexual nature are accurately recorded. Ms Kenny understood the importance of keeping accurate records for the Department about children the Department cared for.
11. Exhibit D12 described as a ‘continuation sheet’ is a typed record of a telephone conversation between Ms Kenny and [DB] on 13 August 2002 about [AW].
12. If called to give evidence, [DB] would say that she contacted the Department of Human Services on 13 August 2002 and relayed to Ms Kenny what [AW] had told [DB] about [LN].
13. The typed notes of the telephone conversation referred to in exhibit D12 were made by Ms Kenny shortly after the conversation she had with [DB].
14. The typed notes in exhibit D12 made by Ms Kenny is an accurate record of the conversation she had with [DB].
The parties also agreed the following further facts which set out the evidence that the complainant’s mother, DB, would have given about these out of court statements made by the complainant, had she been called to give evidence:[28]
1. If called to give evidence, [DB] would say the following:
a. When [AW] was about 11 or 12 [AW] told [DB] that [LN] was having sex with her. [DB] recalls this because she remembers [AW] spelling out that word rather than saying it. [AW] said S E X, [AW] told her it was a secret.
b. [AW] told [DB] again about [LN] having sex with her. This was when [AW] went to live with [DB] in Queensland. [AW] was about 16 years old at the time.
c. The last time [AW] told [DB] about her having sex with [LN] was in or around August 2008 at the Modbury Hospital. [AW] was 22 years old at the time.
[28] The circumstances in which the agreed facts D13 and P18 came to be agreed at previous trials and at this trial, are set out in my earlier reasons dealing with an application for a conditional stay: R v MSP [2025] SADC 40.
As can be seen, the combined effect of D12, D13 and P18 is essentially two fold: first, if the agreed facts are accepted, the complainant made false allegations to her mother about having some form of sexual interactions with LN – a former foster brother; secondly, the complainant either lied during her evidence when she denied having previously told her mother about sex with LN or alternatively simply forgot that she made such allegations against LN on a number of occasions. As will be seen, the prosecution ultimately conceded that, in light of the complainant’s adamant denials of having made the allegations, I should proceed on the basis that the complainant lied during her evidence but there is, it is submitted, a good reason why she may have done so. I will return to this issue later in my reasons.
In re-examination, the complainant again confirmed that there was no sexual contact between her and LN and that she had never made a statement to police to that effect.[29]
[29] T146-147.
She said that the violence she was subjected to by JN involved, by way of example, being ‘whacked…over the face and head a lot’ and the use of a steel ruler to ‘crack us over the knuckles’.[30] These acts would occur in response to something that had happened.[31]
[30] T148.
[31] T149.
As to the placement of her son AB with the N family and the letters D10 and D11, the complainant said that JN had told her that if the complainant asked ‘welfare’ to place AB with the N family, JN would allow the complainant to see him whenever she wished.[32]
[32] T149-150.
The complainant explained that her letter to AB (D10) was intended to let him know that she thought about him and had not abandoned him.[33]
[33] T151.
Moving in with the accused’s family
On 5 October 1999, the complainant commenced her placement with the accused’s family, who I will refer to hereafter as the P family. She remained living with the P family until 15 June 2002.[34] The P family consisted of TP, AP and their son, the accused, who was 25 years old when the complainant moved in.
[34] P20, [8].
The P family lived on a large farming property where they grew crops and had livestock.[35] The residence itself was two storey.
[35] T32, 33.
When the complainant moved in with the P family, her older half-sister J was already living with them.[36]
[36] T31.
Following her move, the complainant began attending the Coomandook Area School. She was then in year 7. She remained enrolled at the school until she was 16.[37] The complainant said she was a disruptive, hyperactive and argumentative student.[38]
[37] T31.
[38] T32.
Relationships within the household
The complainant gave evidence that she liked the Ps when she first moved in. She said they were ‘nice’, ‘welcoming’ and ‘weren’t abusive’.[39] She initially got along well with J. She did not get along well with the accused, who she thought was rude and arrogant and made her feel unwelcome.[40] She did not speak with the accused.
[39] T34.
[40] T35.
The complainant thought that J left the farm the year after she moved in.[41] By that stage, the complainant’s relationship with J had become ‘argumentative. [J] would get me in trouble. She would set up situations to get me in trouble and she would say that she was the princess and the daughter that [the P family] never had’.[42]
[41] T35-36.
[42] T44-45.
The complainant thought the accused lived on the farm the entire time she resided with the P family.[43]
[43] T36.
The allocation of bedrooms
By reference to P2 and P3, the complainant said she occupied the upstairs bedroom next to the accused’s bedroom for the entire time she resided with the P family. Photograph 10 of P3 shows the accused’s doorway at the top of the stairs. For reasons that will become apparent, this is important because it demonstrates that the doorway to the accused’s bedroom was visible from the lounge room downstairs. It can also be seen from the photographs that the stairs and the upstairs floor were timber.
During the complainant’s placement, the accused had a single bed in his bedroom and not the double or queen bed seen in photographs 11 and 12 of P3.[44] There was a television on a small set of drawers at the end of the bed.[45]
[44] T43.
[45] T43.
The complainant was unsure whether the bed shown in photographs 13 and 14 of P3, which depict her bedroom, was the bed she had during her time at the farm. The desk and chest of drawers were not in the room at the time, nor was there a television or a rug on the floor.[46]
[46] T44.
TP and AP slept in the main downstairs bedroom. Photographs of the house show that an internal staircase in the main lounge room of the house where the television was provided access to the upstairs bedrooms.[47] The complainant said that, at the time she lived with the P family, the television was positioned to the right hand side of the fireplace visible in photograph 5 (as one looks at the photograph). There was a sofa where the television is, as depicted in photograph 5, and another sofa in the area of the bottom of the staircase, essentially separating the lounge and dining areas.[48]
[47] P3.
[48] T40.
The complainant said that photograph 9 of P3 showed J’s bedroom during the time she lived on the farm, albeit without the bunkbeds.[49] After J left, her bedroom was used as a spare room, according to the complainant. As will be seen in due course, the complainant’s evidence on this topic was inconsistent with evidence given by AP that after J left the farm, the complainant was re-located to J’s bedroom on the ground floor.
[49] T41.
The complainant rejected the suggestion that after J moved out, she was relocated to the downstairs bedroom, and maintained that the upstairs bedroom to which I have referred remained hers throughout the time she lived on the farm.[50]
[50] T83, 120.
As to the view to the accused’s bedroom door, the complainant agreed that photograph 10 showed what anyone sitting on the sofa at the bottom of the stairs would be able to see.
The complainant agreed that to get from her room to the accused’s required her to move across the landing at the top of the stairs.[51] She also agreed that the timber flooring upstairs could creak and groan as people moved about and with expansion due to weather.[52]
[51] T85.
[52] T85, 120.
She disagreed with the suggestion that the accused moved out of the farm in around February / March 2002.[53]
[53] T87.
Working on the farm
The complainant gave evidence that she worked on the farm. She said she ‘would drive the chaser bin, move augers, move field bins’.[54] A chaser bin is a piece of farming equipment used in conjunction with a tractor to collect reaped crops directly from a harvester during the harvesting process. Once full, the chaser bin would deposit harvested grain in field bins located around the property. The complainant described in some detail the manner in which a chaser bin was used on the property.[55]
[54] T33.
[55] T34.
The complainant also assisted in moving sheep between paddocks and performed an activity described as ‘stone rolling’, which involved the use of a roller to crush up stones in a paddock to help promote crop growth.
The complainant said there was not generally any specific routine for the work she did on the farm but during harvest time, that changed and ‘cleaning out the machinery and driving the chaser bin, moving augers, field bins, that type of thing was reasonably routine, given the type of season’.[56]
[56] T34.
In cross-examination, the complainant said that either the accused or TP would ask for her help on the farm.
She said harvest would occur towards the end of the year, around December, and the start of the following year. Sometimes harvest would be pushed to February or March depending on weather.[57]
[57] T80, 106.
It was put to the complainant that as a result of spending a number of years on the farm, she became familiar with the machinery that was used during harvest. She agreed.[58] She also agreed that the header or harvester would remain in the shed from roughly January through to November (presumably depending on when harvest was concluded and commenced).[59] The complainant disagreed that she could access the machinery whenever she wanted.[60]
[58] T106.
[59] T106.
[60] T107-108.
The complainant agreed that during harvest, TP and the accused would from time to time work into the early hours of the morning.[61] She agreed there was ‘a point’ during harvest where chaser bin drivers were employed, but she could not remember their names.[62] She did not remember a chaser bin driver staying in the house.[63] The complainant maintained that there were times when she would drive the chaser bin, subject to school commitments.[64]
[61] T80-81.
[62] T81.
[63] T82.
[64] T82.
When it was suggested to the complainant that it was unlikely that she drove the chaser bin because of the need for the chaser bin to be driven at a speed that matched that of the harvester, the complainant said ‘that is why they got me to do it because I was the one that was most perfect with it’.[65] The complainant agreed that the equipment used in harvesting was expensive equipment and that the chaser bin had to be driven within very close proximity to the harvester. The complainant rejected the suggestion that she did not drive the chaser bin.[66]
[65] T82.
[66] T82-83.
Counts 1 and 2
The complainant said that her relationship with the accused, as I have previously described it, remained that way until he began abusing her not long after J moved out.[67]
[67] T45.
The first time anything happened with the accused was ‘late at night, everyone was in bed and [the accused] came into my room.’ The complainant was in bed. She thought the accused had picked up on the fact that she was not having a very good time living at the farm; that she was lonely and upset and he asked her if she wanted to be touched to which she responded ‘yes’ because she understood the accused to be asking her for permission to give her a hug.[68] However, the accused then approached her bed and put his hand underneath the blanket and began rubbing her leg over the top of her clothes. His hand moved close to her ‘private area’. She pushed the blanket back and sat up. The accused told her to go into his room and she did, assuming they were going to watch television. She was told to be quiet as they walked across the floorboards.
[68] T45-46.
Once in the bedroom, the accused pulled the blanket on his bed back and the complainant laid down. They watched television for a short time before the accused turned towards her and began rubbing her leg again ‘closer to her private area’. The accused then removed her pants and told her that she could not tell anybody. He then digitally penetrated her vagina with a finger (count 1), asking her if that had ever happened before. The complainant lied, telling him ‘my ex foster-brother, one of his friends’.[69] The complainant’s evidence was that she thought she was telling the accused what he wanted to hear at the time.
[69] T47-48.
The accused then put his hand up the complainant’s top and was touching her breasts. He removed his boxer shorts, returned to bed, got on top of the complainant and had penis vagina sex with her (count 2), ejaculating on her stomach. The complainant was scared and was trying to control her body shaking. She said it felt as if sex continued for a long time because it was painful.[70]
[70] T49-50.
Thereafter, the complainant returned to her room. She wiped her stomach with a corner of the blanket on her bed.[71]
[71] T50.
When asked whether there was any conversation with the accused ‘at this time’, the complainant said the accused remarked that if she told anyone what had happened, he would shoot her and kill himself. She said further the accused had a .22 calibre rifle behind the door of his bedroom.
The complainant agreed in cross-examination that J left sometime in 2000, around seven or eight months after the complainant arrived.[72] She also agreed that the first episode of sex occurred after J had left and essentially ‘out of the blue’ and in the context of her having had no relationship with the accused.[73]
[72] T109.
[73] T110.
The complainant said there had been no prior flirting between her and the accused.[74]
[74] T111.
She rejected the suggestion the accused never engaged in sexual activity with her.[75] She also rejected the suggestion that firearms on the property were kept in a locked cabinet in one of the sheds.[76]
[75] T112.
[76] T120-121.
The following facts concerning firearms were agreed between the parties:[77]
[77] P20, [15].
Firearms
15. During the period when [AW] was in long term foster care placement with [AP] and [TP], [TP]:
a.Was the holder of a firearms licence; and
b.Was the registered owner of the following four firearms which were kept at [suppressed] Parkin Hall Road, Coomandook:
i.A Telly .177 air rifle
ii.A Lithgow .22 calibre bolt action rifle
iii.A sturm Ruger & Co .22 calibre self loading rifle
iv.A Sportco 12 gauge single barrel shot gun.
16. On 13 August 2015, [TP] was still the holder of a firearms licence and was still the registered owner of the four firearms described in paragraph 14 above.
17. On 13 August 2015, police officers located a locked gun safe in a work shed at the property at [suppressed] Parkin Hall Road, Coomandook and inside the gun safe, police officers located the four firearms described in paragraph 14 above.
Uncharged acts
After the events of this particular night, the complainant said that she was a bit ‘freaked out’ but thought the accused did like her after all.
Sex between them subsequently became commonplace. On an almost nightly basis, the complainant would sneak into the accused’s bedroom when the television show Law & Order came on at around 8:30pm. At that time, AP would go into the kitchen to make herself a cup of tea and TP would either be positioned in the lounge room such as to be unable to see up the staircase or would otherwise be asleep.[78]
[78] T50.
The complainant described Law & Order coming on as her cue to go into the accused’s room to have sex.[79] Sex would generally take place with the accused on top of the complainant. The accused would ejaculate on the complainant’s stomach.[80]
[79] T50.
[80] T51.
In cross-examination, the complainant said that sexual activity with the accused would happen almost daily and at roughly the same time, when Law & Order would come on. She said that ‘as soon as you hear that noise’, that was the ‘cue’. At this time, AP would get up off the sofa positioned at the bottom of the stairs and go and make herself a tea or coffee in the kitchen. The complainant would then sneak into the accused’s room after peaking around the corner to see if AP was on the sofa.[81] There were no occasions when the complainant would sneak out of her room and see AP on the sofa at the bottom of the stairs.[82]
[81] T86, 113.
[82] T113.
The complainant agreed that AP had issues sleeping and would go into the study of a nighttime to play cards on the computer. When asked how she would know where AP was, the complainant said she could hear the ‘mouse’ clicking[83] and that the lino flooring downstairs would make a noise as AP moved across it.[84] As I understood her evidence, the complainant also suggested that sometimes, instead of watching Law & Order, AP would use the computer in the study.[85]
[83] T87, 118-119.
[84] T114.
[85] T119.
The complainant said further that she would open her door slightly to get a sense of where AP was before crossing the landing into the accused’s bedroom.[86] She would also listen for whether TP was snoring on the sofa.[87]
[86] T114.
[87] T115.
Asked in cross examination whether anyone ever saw her going into the accused’s room, the complainant said that there was one occasion when she was discovered in the accused’s bedroom:[88]
[88] T112-113.
QYou say that basically after that at 8.30 every night when Law & Order chimed on the telly.
AYes.
QThat you two would have sex basically every day for the next two years basically.
AThat's when I'd go into his room to, yes.
QPardon.
AI'd go into his room to, yes.
QEvery night at 8.30 for two years.
AMm mm, yes.
QThat's what you would have the jury believe.
APretty much every night, yes.
QNever once did anyone see you go to his room.
AWell, actually I was seen in his room one night.
QPardon.
AI was seen by his mother in his room one night at about 10 o'clock.
QWhat, having sex.
ANo, we were clothed but it was about to go to that but you can hear when someone, like, starts walking up the steps and I didn't know what to do, whether I was meant to hide in his cupboard or if I was meant to hide or something and he told me to stay there and he told his mother that I was talking to him.
QSo that's at, what, 10 o'clock at night.
AI think so. I could be wrong on the time. I know it was late that night.
QSo, what, you had gone in there at 8.30, had you.
AI don't know. I know it was late at that particular time so, yes, I was caught in his room.
QOkay. Once.
AYes.
QIn two years.
AYes.
When it was put to the complainant that someone sitting downstairs would be able to hear movement on the first floor because of the floorboards, the complainant said that she learnt which floorboards were creaky.[89] However, she agreed that if a person was walking normally upstairs, that could be heard by someone who was downstairs. She said that a person ‘creeping’ around upstairs could not be heard[90] and that, in any event, any creaking that was heard by someone downstairs might have been thought nothing more than the expansion or contraction of the timber flooring with weather.[91]
[89] T115.
[90] T115.
[91] T120.
In re-examination, the complainant said that the occasion when AP found her in the accused’s room was after the sexual relationship between the accused and the complainant was on foot.[92] Upon observing the complainant and the accused sitting on the bed, AP’s ‘face sort of changed a little bit’ and the complainant was told to get back into her bed.[93]
[92] T145.
[93] T146.
This evidence of uncharged sexual activity between the complainant and the accused was relied upon by the prosecution for the same non-propensity uses which I have earlier referred to,[94] in accordance with Nieterink v The Queen (1999) 76 SASR 56. Again, senior counsel for the accused did not dispute the admissibility of the evidence for these purposes.
[94] Paragraph [26] of my reasons above.
Accordingly, if I were to accept the evidence of the complainant that she engaged in uncharged sexual intercourse with the accused on a regular basis, this may help me to understand the setting and nature of the interpersonal relationship between the complainant and the accused within which the charged acts were allegedly committed; that the charged acts (with the exception of counts 1 and 2) did not ‘come out of the blue’ but, rather, formed part of what became a protracted and illicit sexual relationship between the accused and complainant; may lend plausibility to the complainant’s account by explaining how it was that she came to acquiesce in or submit to sexual activity with the accused and why she made no complaint about his alleged conduct at the time.
I remind myself that these are the only permissible uses of the evidence of uncharged sexual activity and that I must not use the evidence to reason that the accused had a sexual interest in the complainant or that the accused had a propensity to engage in sexual activity with the complainant or a more general propensity to commit crimes of this description. I must not reason that, if I find the accused engaged in uncharged sexual activity with the complainant, he is the ‘sort of person’ more likely to have committed the charged acts. Of course, even if I were satisfied that the accused engaged in uncharged sexual activity with the complainant, that does not relieve the prosecution of the burden of satisfying me beyond reasonable doubt as to the commission of the charged acts. I cannot substitute my satisfaction for the commission of any uncharged acts with proof beyond reasonable doubt of a charged act or acts.
Circumcision and fertility
The complainant described the accused’s penis as circumcised.[95]
[95] T51.
She said he never wore a condom when engaging in sexual intercourse with her.[96]
[96] T51.
In cross-examination, the complainant agreed that she was the mother of eight children, one of whom sadly passed away. The complainant fell pregnant with her first child when she was 17, a matter said by the defence to be demonstrative of her fertility in close proximity to the time throughout which the accused was engaging in regular unprotected sex with her.[97]
[97] T92.
With respect to the complainant’s knowledge of the accused being circumcised – a fact agreed by the parties[98] – it was suggested to her that she acquired this information as a result of a conversation with AP:[99]
[98] P20, [5].
[99] T64-66.
QYou gave evidence to the prosecutor that [MSP] was circumcised, is that the case.
AYes.
QCan I suggest to you that there was an occasion when you were living at the [P]’s house where you were sitting at the kitchen table with [AP], [AP]’s mother-in-law and her sister [MB]. Do you remember an occasion where you were sitting around the table with those women.
ANo.
QCan I assist you by saying that was an occasion where at school on that day you had been given a sex education class; you have no recollection at all.
ANo.
QCan I suggest to you that sitting at the table with these ladies, you told them that you had just participated in a sex education class at school.
AWell, no.
QCan I suggest that you said to them that you were taught how to roll a condom out on a banana.
AWe didn't even do that at school.
QYou've got no recollection of this.
ANo. No.
QCan I suggest that after you said words to the effect of being taught or shown how to roll a condom out on a banana, that you followed it up with words to the effect of 'The teachers said that male circumcision is no longer necessary and it wasn't done any more', and I take it you've got no recollection of such a conversation.
ANo.
QCan I suggest to you that [AP] told you about her nursing experience at the McLaren Vale District Soldiers Memorial Hospital in the '60s.
AI didn't know she worked in a hospital.
QAnd did she give you a couple of examples about what happened to elderly men where they had not been circumcised and their foreskin had become infected.
ANo.
QYou've got no recollection of such a conversation -
ANo.
Q- as I understand your evidence, is that right.
AThat's right.
QCan I suggest that at the conclusion of [AP] telling you that, she told you that they were the reasons why none of her sons remained uncircumcised.
ANo.
QYou simply can't recall a conversation so you're unable to say either way whether such a conversation -
AIt never took place.
QAre you saying such a conversation never took place.
AYep.
QOr are you saying you simply can't recall such a conversation.
AI don't remember any conversation like that taking place.
QDo you take it one step further and say that no such conversation ever occurred.
AI don't believe it did.
Count 4
The complainant said the next specific incident of sex with the accused she could recall took place after school one day. She was in the lounge room with TP when the accused came inside with bloodshot eyes, looking upset. The accused looked at the complainant and went upstairs to his bedroom, leaving the door just slightly ajar.[100]
[100] T51-52.
The complainant asked TP what was wrong with the accused. TP replied that he did not know and then left the house to do something outside. The complainant went up to the accused’s bedroom and peeked in through the ajar door. She saw the accused sitting on his bed with the barrel of the rifle he kept behind his door in his mouth. The complainant said she could remember thinking ‘I am only 14, how am I meant to talk someone out of suicide. I can remember his finger being on the trigger’.[101]
[101] T51-52, 54.
The accused told the complainant he had split up with his girlfriend who, according to the complainant, he had only been with for about a week. The complainant spoke with the accused but could not remember what she said. She could not remember how it came about, but the rifle was placed on the bed and the accused undid his pants and asked her to give him oral sex. The complainant described what happened as a bit of a blur but said the accused came to be laying down on the bed and she performed oral sex on him for the first time (count 4). The accused ejaculated in her mouth.[102]
[102] T52-54.
The complainant did not go into the accused’s bedroom that night, as she usually did, which she said she thought was ‘odd’, but she did go into his bedroom the following night at 8:30pm.[103]
[103] T55.
In cross-examination, it was put to the complainant that, given the circumstances in which the accused entered the house, he must have thought that TP was still in or around the house when he asked the complainant to perform oral sex on him. The effect of the complainant’s evidence seems to be that it would have been apparent to the accused that TP was unhappy and had walked off.[104]
[104] T121-122.
It was put to the complainant that her account was a fabrication. She disagreed.[105]
[105] T122.
Count 3
When the complainant went to the accused’s bedroom the night after she performed oral sex on him, she recalled the show ‘the X-Files’ playing on the television in his bedroom.
The accused removed his boxer shorts and the complainant’s pants. He digitally penetrated her vagina with a finger (uncharged) and then got on top of her and engaged in penis vagina sex with her and ejaculated on her stomach (count 3).[106]
[106] T55.
The complainant said that, at this point in time, she saw herself as being in a relationship with the accused and she felt ‘pushed out a bit’ by the accused having a girlfriend in the lead up to counts 3 and 4.[107]
[107] T56.
Count 5
Count 5 concerned an episode of sexual intercourse that took place with the complainant positioned on top of the accused. This occurred at 8:30pm one night after the complainant had gone into the accused’s room. She said there was a partially pornographic SBS movie on the accused’s television.
The accused put his hands up the complainant’s top prompting her to ask if her boobs were too small to which the accused replied ‘no any more than a handful is a waste’.[108] The accused guided the complainant on top of him and had sexual intercourse with her.
[108] T56.
The accused ejaculated but the complainant could not recall where other than to say it was not inside her.[109] The complainant described this episode of sex as tearing her vagina because she had not had sex in this position previously.[110] She said she did not say anything to the accused during sex because ‘with the age difference I felt as though he was in control’.[111]
[109] T57.
[110] T57.
[111] T58.
The complainant was unable to say whether this incident occurred before or after the occasion on which she performed oral sex on the accused.[112]
[112] T57.
Count 6
The complainant said that, apart from the accused’s bedroom, sex took place in a Volvo F12 truck at a location she identified by reference to map C of P1.[113]
[113] The location of the ‘x’ marked by the complainant was not visible on the copy of P1 provided to me.
The complainant was unable to say when the Ps acquired this particular truck. She said that she was out in the truck with the accused who wanted to see if she could double declutch and split shift the gears – a process the complainant described in detail.[114] The accused explained to the complainant what was required and the complainant was able to successfully double declutch, which surprised the accused who called it a ‘fluke’.
[114] T60.
The complainant had never driven a vehicle like the Volvo before but had driven another truck (referred to as the DAF truck) that was on the farm.[115]
[115] T60.
After driving the truck for a short time, the complainant brought the truck to a stop. The accused told her he was proud of her and put his hand on her leg saying what a good job she had done. He moved into the back of the cabin of the truck and sat on the bed.[116] The complainant followed him as she thought they were in a ‘pretty, somewhat serious’ relationship, and they engaged in penis vagina sex (count 6) with the complainant on her back. The accused ejaculated on the complainant’s stomach, who wiped down her stomach using her shirt.[117]
[116] See photos 5 and 6 of P4.
[117] T62.
The complainant said this episode of intercourse took place not long after the Volvo was acquired.[118] As will be seen, AP gave evidence as part of the defence case that the Volvo was only acquired in April 2002 – not long before the complainant left the farm.
[118] T63.
In cross-examination, the complainant said that the accused had told her that shifting gears in the Volvo required the driver to double declutch. It was put to her that double declutching was not necessary in the Volvo. The complainant responded: ‘It’s what he told me to do and I wouldn’t know about it right now if he didn’t tell me. No-one else has told me. How else am I meant to know’.[119]
[119] T123.
The complainant said she did not know whether the Volvo truck had a synchro-mesh gear box that did not require double declutching.[120]
[120] T124.
The complainant said further that she thought this particular incident occurred around harvest time because she did not remember it being cold. She agreed that harvest time was not April or May.[121] She agreed she was only living on the farm for the 2000 and 2001 harvests.[122]
[121] T125.
[122] T125.
When pressed as to when the incident might have occurred, the complainant said she could not say whether it was in 2002 or how old she was.[123] She said however that the truck was purchased during the time she lived on the farm and she believed she was ‘older’ and possibly closer to 15 or 16.
[123] T129.
It was suggested to the complainant that the Volvo truck did not arrive on the farm until April 2002 which meant it was not around during any of the harvests for which the complainant was living at the property, to which she responded ‘what month did I leave’ and ‘nah I’m sure it was there longer than that’.[124] The complainant said she was ‘sure’ the Volvo was on the farm for the 2001 harvest.[125]
[124] T133.
[125] T133.
In re-examination, the complainant said that there was another truck on the farm, referred to as the DAF truck, before the Volvo was acquired. The complainant spent time in the DAF truck and also drove it.[126] She believed the DAF truck required double declutching.[127]
[126] T143.
[127] T144.
The parties agreed a number of facts relating to the Volvo:[128]
The Volvo Prime Mover
12.Records from the Registrar of Motor Vehicles indicate that [TP] purchased and registered a Volvo Prime Mover Registration Number WHZ 082 (as shown in Exhibit P4) on 6 April 2002.
13.Records from the Registrar of Motor Vehicles indicate that the previous owner of the Volvo Prime Mover Registration Number WHZ 082 was Teamcorp Pty Ltd. The registration of the vehicle expired 23 March 2002.
14.Photographs of the Volvo are produced at exhibit P4. These photos were taken by police who attended at [suppressed] Parkin Hall Road in Coomandook, South Australia on 13 August 2015.
[128] P20, [12]-[14].
AP gave evidence about the acquisition of the Volvo truck which I will set out in more detail later in these reasons. The effect of her evidence was that the agreement to purchase the truck was made in March 2002 but possession was not taken until sometime around 6 April 2002, consistently with the invoice D22 and the agreed facts.
Count 7
The last charged act about which the complainant gave evidence was said to have taken place in a header during harvest time when the complainant had been driving the chaser bin in a paddock towards the middle of map C of P1.[129] In her evidence in chief, the complainant initially said that she thought this incident occurred after the incident in the Volvo truck but she could not be sure.[130]
[129] T63-64.
[130] T63.
The complainant said that she and the accused were close to finishing off the paddock when he told her to get into the header as the chaser bin would not be needed for the last bit of harvesting. The complainant got into the header with the accused and they harvested the remainder of the paddock. The complainant sat on a makeshift seat next to the accused.[131]
[131] T64.
Once they had finished, the accused undid the blue Hard Yakka pants he was wearing. The complainant masturbated the accused (uncharged) and then got on top of the accused facing away from him. The accused had penis vagina sex with the complainant in that position. The accused ejaculated but the complainant was unable to say where.[132]
[132] T65-66.
Although this was the last specific incident about which the complainant gave evidence, she said that her sexual relationship with the accused continued until she left the farm.[133]
[133] T66.
In cross-examination, the complainant confirmed that she ‘thought’ the harvester incident occurred after count 6 but she could have been wrong.[134] She said that she had probably driven the chaser bin during two harvests she was present for, not including the 1999 harvest.[135]
[134] T126-127.
[135] T136.
The complainant disagreed with the proposition that she had never driven the tractor with the chaser bin attached. She was firm that she had, commenting ‘I thought I did pretty good. I didn’t spill grain so I must have been doing something right’.[136] She said she did not require much instruction to learn how to operate the tractor with the chaser bin, commenting:[137]
ANot a lot. It's a rabbit and a turtle, fast and slow, it's not hard, rabbit and a turtle - tortoise - there's a picture of a rabbit and a turtle, fast and slow.
QSo not much teaching how to drive the tractor, that's right.
ADidn't need much.
QDidn't need much teaching to pull the chaser bin around the paddock and support the harvester.
ANo.
QJust jumped in and keep it near turtle and don't hit the harvester, is that what you are saying.
AAnd maintain the same speed as the harvester because otherwise when the grain comes out if you're going too fast or too slow grain's going to go all over the floor, yes.
[136] T137.
[137] T137.
The complainant accepted that there was ‘a harvest’ when others were employed to drive the chaser bin but reiterated her evidence that she operated the chaser bin as well.[138] She could not remember whether the chaser bin drivers stayed overnight at the farm.[139] She ‘vaguely’ remembered the name ‘NB’ but did not recall him staying in the house during a harvest that he worked as the chaser bin driver. She rejected the suggestion that NB stayed in the spare room upstairs, reaffirming that was her bedroom throughout her time living at the farm.[140]
[138] T138.
[139] T138.
[140] T138-139.
In re-examination, the complainant said the accused taught her how to operate the tractor and chaser bin. All that was required, she said, was to monitor the throttle of the tractor to maintain a consistent speed with the harvester and to operate the foot brake. The complainant had experience driving manual vehicles and another tractor on the farm before operating the chaser bin.[141]
[141] T140-141.
Flirting
The complainant said she and the accused were flirtatious throughout the sexual relationship and she was surprised that was ‘not picked up on’.[142]
[142] T58.
Leaving school and the farm
The complainant said she left school because she was having disciplinary issues and was ultimately suspended in circumstances she said involved her standing up for herself after being told off for yawning. The complainant explained: ‘I really started to get quite defensive about it because [the teacher] was so angry with me like “I’ll let you have it”’. The complainant was sent to the front office and told she could leave the school or she was otherwise going to be expelled. The complainant’s response was ‘They wouldn’t have one over me, I quit. They’re not expelling me, I quit’.[143]
[143] T67.
The complainant also described the circumstances in which she left the farm. She said that one of the trucks had become bogged in a paddock and the accused was trying to recover it. The complainant went over to him and they were talking about the fact she would not be living at the farm anymore. The accused ‘kept saying his phone number, his mobile phone number to me over and over and over again until it stuck…so we could catch up in the future when we could’.[144]
[144] T67.
I do not overlook the complainant’s evidence that the letters were written in a particular way to avoid ‘consequences’. I also keep in mind that the complainant’s son was living with the Ns at the time the letters were written and that the complainant may have felt indebted to them on this account or otherwise not wanted to create friction that might have had an effect on the disposition of the Ns towards AB.
My concern that the complainant’s account about her experience with the Ns was, on the face of the letters written by her and JN’s evidence, doubtful, is by no means fatal to a favourable assessment of the complainant’s credibility and reliability as to the charged acts, but it is a matter that must be borne in mind.
False allegations relating to LN and the lie in court
I turn then to the complainant’s allegations concerning LN.
The effect of the agreed facts D13 and P18 and exhibit D12 is that, on multiple occasions when aged between 11 or 12 and 22, the complainant told her mother that she had engaged in sexual activity with LN. The complainant accepted in her evidence that any such statement was a lie because she did not, in fact, have any sexual interactions with LN.
It is of course a matter for me to determine whether I accept the agreed facts. The position of the parties does not bind me, however there is no reason for me not to accept the agreed facts.
I find that the complainant told her mother in 1999 or thereabouts (when aged around 12), 2001 (when aged around 13/14), 2002 (when aged around 16) and 2008 (when aged around 22) that sexual activity had taken place with LN.[254] I find that these allegations were, on the complainant’s own evidence, untrue.
[254] D12, D13, P18.
The prosecution also conceded that the complainant’s denial in the course of her evidence of having made those statements to her mother was a lie that could not be explained by an imperfect memory because of the vehemence and confidence with which she had rejected having made the disclosures. The prosecution argued however that the complainant’s lie in court was in fact to her credit and could be understood as reflecting an unwillingness to perpetuate the original lie by acknowledging the statements were even made.
Notwithstanding the prosecution’s concession, I have independently considered whether the complainant’s denial might be attributable to oversight or lack of recall. If the statements had only been made to DB when the complainant was a young adolescent, I would have been inclined to the view that the complainant’s denial in court of having made the allegations was not dishonest but rather a product of forgetfulness. The difficulty however is that the complainant repeated the false allegations to her mother when she was around 16 years of age and when she was in her early 20’s. I find it difficult to accept that the complainant may have simply forgotten about making such serious allegations when she was in her mid-teens and early adulthood. It is also fair to describe the complainant’s response to questioning on this topic in cross-examination as a vehement denial. The way she answered questions about this issue did not leave a great deal of room to conclude that she may have simply been mistaken or forgetful.
Having regard to the prosecution’s concession; the manner in which the complainant responded to this topic in cross-examination and the repetition of the allegations when she was in her mid-teens and early adulthood, I find that the complainant’s evidence that she did not make such allegations to her mother was untruthful.
Further, I find the prosecution’s suggested explanation for the telling of the lie in court unconvincing. For one, the suggested explanation was not supported by evidence from the complainant who of course denied making the original statements. In any event, the submission suggests that the complainant made a conscious decision to lie on her oath in court in preference to acknowledging that she had made false allegations out of court to her mother when much younger. It is difficult to see how that could possibly be seen as reflecting favourably on the complainant’s credibility.
The telling of lies by the complainant to her biological mother about sexual activity with LN could well have been capable of a convincing explanation. The complainant was young when she originally made the false allegations and the subsequent repetition of that lie could well have been explicable on the basis of what appears to have been a challenging upbringing for the complainant, who was placed into foster care from a very young age, and perhaps a need for attention or comfort from her biological mother. There may have been other things occurring in the complainant’s life when the disclosures were made again in her mid-teens and early adulthood. For example, the disclosure made when the complainant was around 16 must have been in relatively close proximity to the complainant being removed from the Ps’ care, which may well have been a challenging time for her. Even leaving aside her allegations of abuse within the foster environment, it is not difficult to understand the impact the complainant’s early life experiences may have had on her.
Conversely, it cannot be overlooked that the lies were repeated when the complainant was aged 16 and then again in her early 20’s. As such, the false allegations were repeated at a time when the complainant may well have been expected to have a deeper understanding of the wrongfulness and significance of making the statements.
As things are, there is no explanation for the original telling of the lies and the lie in court.
The significance of the false disclosures is amplified by the fact that they alleged sexual misconduct by a former foster-brother, and hence bear some correspondence with the complainant’s allegations against the accused.
As significant as the false allegations are, particularly without an explanation from the complainant, I am more troubled by what is conceded by the prosecution to be the complainant’s dishonest denial in court about having made the disclosures.
On the prosecution’s submission, the complainant may have made a conscious decision, on her oath, to deny making the false allegations in order to guard against them being aired in a forum such as a courtroom. Even if that were thought to be a commendable reason to not want to acknowledge the original making of the false allegations, it would still reflect a willingness to conceal the truth from the court. Without more, that is a serious blemish on a witness’ credibility.
Standing back, and bearing in mind the matters advanced by the prosecution in defence of the complainant’s missteps, I, again, would not have been prepared to conclude that, by itself, this unfortunate aspect of the complainant’s account was terminal to the prosecution case. It does however demand a critical examination of other aspects of the complainant’s account. The making of false allegations of sexual misconduct by another foster-brother is highly material to my assessment of the credibility and reliability of the complainant’s allegations about the accused.
The bedroom issue
The complainant’s evidence that she occupied the upstairs bedroom for the entirety of her time at the farmhouse is also somewhat problematic. As I will explain in due course, the evidence of NB, which I accept without qualification, was that for the two harvests that he worked, he stayed in the upstairs bedroom next to the accused. It is highly unlikely that the complainant – a permanent resident in the house – would have been moved to the downstairs bedroom just to accommodate NB for reasonably short periods. Nor was there any real reason for NB to be hosted in the upstairs bedroom, if that was in fact the complainant’s room. For example, there was no ensuite attached to the room that might be thought to afford a visitor a greater degree of privacy. Accepting NB’s evidence, as I do, means that the complainant was at least mistaken about remaining in the upstairs bedroom for the duration of her placement with the Ps.
The evidence of AP that the complainant stayed in the downstairs bedroom after J left the farm is also in direct conflict with the complainant’s evidence. The co-location of the complainant’s bedroom and the accused’s bedroom is plainly a critical feature of the prosecution case because it facilitated what the complainant described as almost nightly sexual activity. The complainant was adamant that she occupied the upstairs bedroom; AP was adamant that the complainant occupied the downstairs bedroom, in which case, it would have been necessary for the complainant to walk through the living room where AP and TP would sit in the evenings to watch television, to access the stairs to the accused’s bedroom.
As will be seen, I am ultimately unable to reject AP’s evidence on this topic as not reasonably possibly true given it enjoys some support from NB’s evidence and bearing in mind other shortcomings in the complainant’s account.
The charged and uncharged acts
As I have said, I found much of the complainant’s evidence about the charged acts themselves to be, on the face of it, consistent and quite persuasive. Her evidence in chief was particularly impressive. However, there are some aspects of the complainant’s narrative of sexual acts with the accused, or features of her account closely associated with them, that warrant careful consideration.
First, the suggestion that the complainant had no real relationship with the accused after she commenced living with the Ps yet, on the prosecution case, he embarked on what was extremely risky and brazen sexual conduct, with his parents in the house, is somewhat curious. I do not consider this a significant issue, but it is a slightly unusual feature of the way the complainant describes the commencement of sexual abuse.
Secondly, the complainant’s evidence that the accused threatened her with a rifle and had a rifle in his bedroom on the occasion the subject of count 4, is in conflict with the evidence of the accused’s character generally and with AP’s evidence about storage of and access to firearms. However, given the nature of the farming properties that the Ps operated, I would find it unsurprising if the accused had access to a rifle from time to time. I am sceptical about AP’s evidence that she, and only she, had the code to the gun safe because of her aversion to firearms. Her evidence to this effect was also inconsistent with the evidence of NB that he would routinely have his rifle inside the house when he stayed at the farm and would simply store it under his bed. I find it curious that he would have been permitted to do so given AP’s apparent stance on firearms. Whilst the agreed facts that, during a police search of the farm house in 2015, firearms were found in a locked gun safe in the shed, lends some support to AP’s evidence on this topic, there is, to my mind, a tension between her evidence and the evidence of NB on this topic.
Thirdly, there is the complainant’s evidence that the accused had her perform oral sex on him in circumstances where he would have known that his father was in the living room just moments before. It will be recalled that the complainant said, that after the accused entered the house in an apparently distressed state, TP left the house and the accused may have heard him depart. Nonetheless, the complainant’s account puts TP in the immediate vicinity of the house at the time of the alleged commission of count 4. The risk of detection was therefore quite significant if this incident occurred in the manner described by the complainant. Again, however, I do not consider this to be a significant issue in its own right as it is well recognised that sexual abuse often takes place in risky and brazen circumstances.
Fourthly, the complainant’s evidence about count 6 and the Volvo truck is difficult to reconcile with objective evidence establishing the timing of the acquisition of the truck and its first use. The invoice, D20, in combination with AP’s evidence about the purchase of the truck, indicates that the Ps did not take possession until early April 2002. A number of modifications were then made to the truck. The complainant thought that the truck was on site for the 2001 harvest and that she drove it around harvest time. The preponderance of the evidence however favours the proposition that the Volvo was not on site until April 2002 at the earliest and the complainant had left the farm by the 2002 harvest. It is possible that the complainant was mistaken about having driven the truck around harvest time; it is possible she drove the truck at sometime between, say, late April / early May 2002 and her departure from the property around 15 June 2002, but that was not the complainant’s evidence. She did however express uncertainty about when the truck was acquired.
If the complainant had not alleged that a charged act of sexual intercourse took place in the Volvo, any mistake by her about having driven the truck and when she did so, might well be of minor moment. However, the complainant alleges that the accused had sex with her in the truck in the context of teaching her how to double declutch the gears around harvest time, and the weight of the evidence is to the effect that the complainant was not living at the farm at harvest time after the Volvo was purchased.
Fifthly, the complainant thought that count 7, which allegedly took place in a harvester, occurred after count 6. For the same reasons I have set out above, this poses a timeline problem because it tends to suggest that the incident took place in the 2002 harvest, by which time the complainant was no longer living with the Ps.
A further difficulty with the complainant’s account as to count 7 is that she said the offence was committed in the context of her having assisted the accused with harvesting activities by driving the chaser bin. As I have said, I accept the evidence of NB that he was retained as a chaser bin driver during the 2000 and 2001 harvests, the latter of which he worked together with AS. It seems unlikely that the Ps would have engaged one or both of NB and AS as chaser bin operators but then had the complainant assist the accused in that capacity. It is of course possible that the complainant was needed to ‘fill in’ for NB or AS or that, perhaps, there was some residual harvesting to be attended to after they had completed their retainers.
However, and perhaps more fundamentally, the complainant’s evidence that she was required to drive the chaser bin because she did it most ‘perfectly’, gave me reason to pause. I accept that it is not uncommon for children who have grown up on their family’s farm to assist in farming operations from time to time, potentially from a very young age. I accept that the complainant spent a number of years at the farm and may have become familiar with various farming activities and could physically have driven the tractor and chaser bin. However, the evidence of NB, who had experience driving tractors and trucks in the early 2000’s, was that learning to operate the tractor that pulled the chaser bin was not entirely straightforward and driving the chaser bin in tandem with the harvester was a ‘precision skill’ that required the driver to align the chaser bin with the auger of the harvester and to maintain consistent speed with the harvester. He described doing many ‘dry runs’ with the accused to make sure they could align the vehicles during harvesting.
I do not doubt that, with sufficient training, a person of the complainant’s age would have been capable of fulfilling the role of chaser bin operator, but it does strike me as an activity that required some finesse and driving experience.
Once again, even accepting NB’s evidence, as I do, about the challenges associated with driving the tractor and chaser bin, would not cause me to reject the complainant’s evidence out of hand. It is, however, just another area in which there is, at some level at least, a conflict or tension between the complainant’s evidence and other evidence that I accept.
Sixthly, the complainant’s evidence was that sexual intercourse took place in the accused’s bedroom on an almost nightly basis for what must have been close to two years, without detection. Given the layout of the house and the seemingly uncontroversial evidence that AP and TP would sit in the living room in the evenings (at least on most nights) to watch television, it seems unlikely this could have continued with such frequency for such a long period without arousing suspicion. It is of course possible; but it was, on the complainant’s account, exceedingly risky abuse to engage in on a nightly basis. Moreover, if the complainant was able to hear AP ‘clicking’ the computer mouse in the study downstairs, it is difficult to understand how the complainant was able to navigate the creaky landing at the top of the stairs without arousing suspicion, noting her evidence that she effectively learnt which floorboards she could step on without them creaking.
In this analysis, I have not overlooked the complainant’s evidence that there was one occasion when AP discovered the complainant in the accused’s bedroom at around 10pm one evening, however, that evidence, which the complainant did not give in examination in chief, struck me as being a somewhat opportunistic response to the line of questioning being pursued by counsel which was clearly designed to highlight the implausibility of such activities occurring for years without being noticed by other members of the household.
Mr Henchliffe’s allied point was that it was improbable that the complainant, who he suggested was a fertile woman with a number of children and who was pregnant at or around the time she left the Ps, would not have become pregnant to the accused as a result of such sustained sexual abuse. I do not think that any such general proposition can be meritoriously stated. True it is that, on the prosecution case, the accused was taking a not insignificant risk by having unprotected sex with the complainant for such a long time; but the complainant’s evidence was clear that, insofar as she could recall, the accused did not ejaculate inside her.
Contrastingly, the prosecution emphasise that the file note (forming part of P19) from 9 July 2002 demonstrates that the accused had a close relationship with the complainant, such that he was willing to accommodate her after he moved out of the homestead. It is, to my mind, odd that the accused would have offered to accommodate the complainant in the circumstances. She was then 16 years old and he was 27. On the other hand, the accused had been living with the complainant for a number of years and there is some force in Mr Henchliffe’s suggestion that it would be incautious to reason that this was anything other than an indication of brotherly support. However, in my view, the accused’s invitation to take the complainant in does provide some support for the existence of a ‘close relationship’ between the two.
Similarly, the complainant’s evidence that she asked herself what, as a 14 year old, she was supposed to do or say when she entered the accused’s room on the occasion of count 4 and found him with the barrel of a rifle in his mouth, seemed a detail unlikely to be contrived.
The complainant’s evidence that the accused was circumcised, which is an agreed fact, does not, in my view, advance the prosecution case very far and cannot be described as esoteric knowledge. Any guess had a fifty percent chance of being correct and the complainant did spend a number of years living in the house with the accused. The possibility of innocent observation would need to be excluded before I would be prepared to treat the evidence as being probative of the complainant having had sexual contact with the accused.
NB
NB was an impressive witness. He was straightforward and responsive to questions. He had what appeared to me to be a genuineness to his demeanour whilst giving evidence. He had an apparently good recollection of the significant matters about which he gave evidence, but appropriately acknowledged matters in respect of which his memory was limited.
The substance of NB’s evidence was internally consistent and accorded with common sense.
I considered him to be a reliable and credible historian and it was not suggested to him during cross examination that his evidence was untruthful.
The only aspect of his evidence that was in fact challenged (although not to suggest he was lying[255]) concerned the bedroom in which he said he slept during the time he spent at the Parkin Hall Road property during the 2000 and 2001 harvests. His evidence that he slept in the upstairs bedroom was challenged on the basis that he may have been mistaken. NB was clear and firm in his evidence that that was the only bedroom he slept in at the Ps.
[255] TT146.
I accept NB’s evidence. Accordingly, I find that during the 2000 and 2001 harvests when he was retained as the chaser bin operator, he slept in the second upstairs bedroom. This means that the complainant, throughout these periods at least, could not have slept in that room.
That is not fatal to the prosecution case by itself because of the limited periods during which NB stayed at the farm. However, the complainant did not suggest that she was relocated to the downstairs bedroom even for a short time. Her evidence was clear. She remained in the upstairs bedroom adjacent to the accused’s bedroom for the duration of her time on the farm. NB’s evidence establishes that could not have been the case, at least during the two harvests that he worked.
NB’s evidence lends support to aspects of AP’s evidence about the occupation of bedrooms. My acceptance of his evidence has influenced my preparedness to accept AP’s evidence that the complainant was relocated to J’s room following her departure as reasonably possibly true.
I also accept NB’s evidence that he did not see the complainant driving the tractor and / or chaser bin during the harvests he worked at the farm, although that does not exclude that she may well have done so on other occasions. NB was only on the farm for parts of the 2000 and 2001 harvests.
NB was also a reasonably experienced heavy vehicle operator at the time. He holds a medium-rigid heavy vehicle licence and had driven tractors and trucks before working the harvests in 2000 and 2001. His evidence that some finesse was required to operate the tractor and chaser bin in uniformity with the harvester also appeals to common sense. I accept his evidence that a period of training was required to develop a cohesive operation with the accused as the driver of the header.
I accept NB’s evidence that he took a rifle to the farm when working the harvests and that he occasionally took the rifle inside to clean it or when preparing to go shooting. I accept his evidence that he would store the rifle under the bed and that he also had the rifle out of its case from time to time when the complainant was living on the farm.
As will be seen, there is, to my mind, a tension between his evidence on this topic and AP’s stated aversion to firearms. There is a contradiction in AP’s claim that she strictly regulated access to the Ps’ firearms, including by being the only person with the gun safe combination, yet allowed NB, who would have been around 19 or 20 years old at the time, to take his rifle into the house.
AP
In the main, AP presented as a clear and responsive witness. She appeared to be a reliable historian. With one or two exceptions, her evidence in chief was, in my assessment, logical and coherent.
It was however clear from the manner in which AP gave evidence and some of her answers that she is not fond of the complainant. She made various remarks throughout the course of giving evidence that might have been thought directed towards criticising or denigrating the complainant.[256] I considered some of her remarks about the complainant to be quite gratuitous and unnecessary.
[256] For example, T75, 91-92, 102, 115, 121.
I also found that AP was occasionally quite oppositional during cross-examination. By way of example:[257]
[257] Other examples can be found at T127-129.
QWhen [AW] was - between October of 1999 and July of 2002.
AI do not recall, he's had various girlfriends, but I do not recall.
QHe was living at home between those two dates, which I have mentioned, do you agree.
AYes.
QAnd you've spent a lot of time thinking about that period of time, because you've been able to give us evidence about things that happened in that time, haven't you.
AI've had to think about it because you have made me.
QAnd thinking back on it did he have a girlfriend at this time.
AI cannot recall. How many times do I answer the same question?
QYou said he had a number of girlfriends, were they local girls.
QNo, he had a Danish one that I remember. He's had a Chinese one. He was married to a Thai.
Despite initially proclaiming that she was unable to recall whether her son had a girlfriend during the time the complainant resided at the farm and questioning ‘how many times’ she needed to answer the same question, when the question was asked again a short time later, AP said she did in fact recall the accused going out to meet a girlfriend during the time the complainant lived at the farm.[258] This is just one example of the way in which AP’s demeanour changed quite substantially whilst under cross-examination.
[258] T125.
As I said when remarking on the complainant’s presentation as a witness, I acknowledge that witnesses respond differently to the process of cross-examination. Some become defensive or evasive; others became loquacious; others still become very clipped or economical in their responses. Giving evidence is a stressful exercise and that may be thought all the more the case when a parent is giving important evidence in relation to allegations against their child.
I remind myself that it is often incautious to read too much into a witness’ demeanour when giving evidence for these, and other, reasons. Nonetheless, I am entitled to take into account demeanour when considering whether I accept the evidence of a witness as credible or reliable.
I have carefully considered AP’s presentation as a witness in conjunction with the substance of her evidence in evaluating whether, and to what extent, I can accept her account as credible and reliable.
I have also taken into account that AP is clearly aware of the evidence that the complainant has given; has read the disclosed affidavits and has spoken with her son about evidence called at previous trials of the charges. AP’s frank acknowledgment of these matters both promotes and undermines her credibility and reliability.
Her transparency suggests candour; but the fact that she is familiar with the evidence to an extent not comprehensively explored in her cross-examination does give rise to the theoretical risk that her recollection has been contaminated or influenced by what she knows and / or that her evidence has been shaped to provide an answer to aspects of the complainant’s allegations. In particular, AP is clearly aware of the forensic significance of which room was occupied by the complainant during her stay.
I have considered carefully whether AP’s evidence that the complainant was moved into J’s room after J departed might be the product of conscious or subconscious contamination or concoction. Were it not for NB’s evidence, that may well pose a more difficult issue for me to resolve. Equally, however, AP acknowledged that her nightly routine involved sitting down at 8:30pm to watch Law & Order and if her evidence was a contrivance, it might be asked why she would lend support to such a key element of the complainant’s account.
I was also unimpressed by AP’s evidence about the ‘circumcision’ conversation which, to me, seemed highly implausible. It is difficult to understand that a person in AP’s position would have told the complainant – a teenage foster daughter – that her sons and husband were circumcised. The revelation of such private details was completely unnecessary to achieve AP’s ostensible aim of explaining to the complainant the benefits of circumcision by reference to her nursing experience. I have considered whether this too was an attempt to meet an aspect of the complainant’s allegations, namely, that the accused was circumcised.
There is, in addition, AP’s evidence about the firearms to consider. It struck me as somewhat implausible that, on a farming property where there may from time to time be problems with pest control, that AP would be the only person to have the combination to the gun safe. NB’s evidence also suggested a far less stringent approach to gun safety and AP agreed that she allowed NB to have his guns in the house, provided they were in his possession.
AP’s evidence about a conversation she had with the complainant after the complainant was told she would be leaving, during which the complainant said ‘she’d get [AP] for what [she] had done’ and that she could because she was ‘a girl’, also had an air of unreality to it.
I have also taken into account AP’s relationship with the accused and what must be, quite naturally, her desire to assist him and do everything she can to avoid her son being convicted of serious criminal offences.
On the other hand, and as I have said, AP’s evidence about bedrooms enjoys some support from NB’s evidence that he stayed in the spare room upstairs during the 2000 and 2001 harvests. Whilst that would only account for a small portion of the time the complainant lived on the farm, common sense suggests it is unlikely that the complainant was moved from that room to the downstairs bedroom just for those periods. It would make much more sense for NB to have had made available to him a room that was not occupied by a permanent resident of the house. At the very least, I have not heard any evidence that would suggest a particular reason to re-locate the complainant from the upstairs bedroom to the downstairs bedroom to accommodate a guest.
I consider AP’s evidence about the limited role the complainant played on the farm to be supported by NB’s evidence about his role as a chaser bin driver during the 2000 and 2001 harvests and the intricacies of operating the chaser bin in tandem with the harvester.
Further, AP’s evidence about the acquisition of the Volvo truck accorded with the documentary evidence, and her evidence about additional work being undertaken on the truck before it was re-located to the farm, tends to suggest that the truck was really not present at the farm until quite close to the complainant’s departure date. Whilst the complainant was obviously familiar with the truck, the chronology surrounding its acquisition seems to discount the possibility that the complainant could have driven it at around harvest time.
I do not think that the suggested inconsistency between AP’s evidence that the complainant was at school for ‘99% of’ the harvests and evidence she gave at a previous trial that some workers had told her ‘why don’t you get rid of this kid. We can’t do anything because she’s always in the way’ to be particularly informative and, in any event, the prior statement is evidence which goes only to AP’s credit or reliability, if anything, and is not evidence of the fact that the complainant was ‘always in the way’ during farming operations.
I have reflected at length on these aspects of AP’s evidence and her evidence more generally.
Although the matters to which I have referred give me some pause, I am left in a position of being unable to exclude important aspects of AP’s account as not reasonably possibly true.
I generally accept AP’s evidence about matters of chronology and the operation of the farm. In this respect, she was an impeccable historian with an impressive memory for detail. I accept her evidence that she did not see the complainant operating the chaser bin and that NB and AS were engaged as chaser bin drivers for two harvests.
I accept AP’s evidence about the purchase of the Volvo and subsequent work done to it. I find that the Volvo was not at the farm for any continuous period until late April / early May 2002.’
I also accept AP’s evidence that the accused moved to the Buccleuch house at around this time. AP’s evidence in this respect gains some support from the file note of 9 July 2002[259] (part of P19) in which the accused advised Ms Kenny that he was no longer living at the farm.
[259] Admissible as a business record pursuant to s 53 of the Evidence Act.
I accept AP’s evidence that she would watch Law & Order on a nightly basis, which was consistent with the complainant’s account.
Importantly, and having had the opportunity to observe AP give evidence, I am unable to discount her evidence as to who occupied which bedroom as not reasonably possibly true. AP was adamant that the complainant moved into J’s bedroom after J departed the farm. Importantly, her evidence in this respect was consistent with that given by NB about who occupied which bedroom on those occasions that he stayed at the farm during harvesting.
Although not an indispensable intermediate fact, the complainant’s occupation of the upstairs bedroom was so central to her allegations, that my inability to exclude AP and NB’s evidence on this topic as not reasonably possibly true is problematic. Indeed, it is difficult to see how the complainant’s allegations can be reconstructed once it is accepted to be a reasonable possibility that she occupied the downstairs bedroom. The co-location of the complainant’s bedroom to the accused’s bedroom was integral to the fabric of the complainant’s account. It was the co-location of the bedrooms that facilitated nightly sexual activity taking place without detection. If it is reasonably possible that the complainant in fact stayed in the downstairs bedroom, she would have had to pass through the lounge room in order to get to the accused’s bedroom. The suggestion that sexual activity continued for two or so years undetected in those circumstances is all but unsustainable.
JN
JN struck me as a sincere and honest witness.
Her evidence was brief and neither counsel raised with her the complainant’s allegations against her husband. However, she was asked whether she had beaten the complainant during her placement, to which JN responded ‘definitely not’[260] but did not seem visibly distressed or concerned about the nature of the question.
[260] TT151.
In cross-examination, JN said that before coming to court on the day she gave her evidence, she had not heard of any allegation that she had beaten the complainant.
I have considered whether JN’s subdued response to a question of that kind being asked of her might suggest, contrary to her evidence, that she was aware of that allegation before giving evidence and hence was not taken by surprise when the question was asked.
However, JN presented with a calm disposition more generally and I am not able to read anything into her reaction.
JN denied hitting any children in her care and denied using a wooden spoon to reprimand a child. She acknowledged breaking a wooden spoon after striking a benchtop with it but denied striking the complainant with a metal ruler. JN’s evidence on these topics is indirectly supported by the letters written by the complainant, which I have earlier discussed, and the complainant’s willingness to have her son, AB, live with the Ns.
I accept the evidence of JN. I find that she did not strike the complainant with a metal ruler or ‘beat’ her. I have already indicated how these matters impact on my assessment of the complainant’s credibility and reliability.
Conclusion
Although I found aspects of the complainant’s evidence to be quite persuasive and coherent, there are a number of significant problems in her account that leave me with a doubt about her evidence as to the charged and uncharged acts.
In particular, I cannot rationalise JN’s evidence and D10 and D11, with the complainant’s evidence about her time with the Ns.
It may be that her experience during that placement was imperfect, but I cannot accept that she would have written letters in the terms she did if she had indeed been subjected to the horrendous experiences she claimed. As I have just mentioned, I also accept JN’s evidence. I am unable to sweep aside the complainant’s evidence on this topic. It has influenced my assessment of her evidence.
I am also unable to ignore the false allegations made about LN and what the prosecution conceded to be the complainant’s lie in court when she denied making those allegations. For whatever reason, the complainant made a conscious decision not to acknowledge that she had previously made allegations against another of her foster-brothers. If there was a good explanation for making false allegations in the first place, or for why the complainant refused to acknowledge making them during previous trials, I remain uninformed about them.
This too has had a significant influence on my assessment of the complainant’s evidence.
There were, additionally, various aspects of the complainant’s narrative of the charged acts or uncharged sexual activity which leave me questioning the credibility and reliability of her account. The tension arising from her evidence relating to counts 6 and 7, and the evidence of NB, AP and the documentary evidence, serves as an illustration. Of course, my assessment of the complainant’s evidence must also take into account what I have found to be the significant forensic disadvantage faced by the accused in defending the allegations.
Compounding these matters is the evidence of AP and NB. As I have said, I was impressed with the evidence of NB and although I have reservations about some aspects of AP’s account, I am unable to exclude her evidence about the complainant occupying the downstairs bedroom as not reasonably possibly true.
Once that conclusion is reached, the cogency of the prosecution case is substantially damaged.
I am unable to accept the complainant’s account of the charged and uncharged acts as credible and reliable, beyond reasonable doubt. In arriving at this conclusion I have had regard to all aspects of the complainant’s evidence; its positive attributes and the shortcomings I have discussed. Ultimately, I find myself in a position where the combined weight of the infirmities in the complainant’s account, together with the contradictory defence evidence which I accept, means I am unable to act on the complainant’s evidence.
As a consequence I am unable to find the elements of the offences proved beyond reasonable doubt.
I find the accused not guilty of all counts on the Information.
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