R v Mullen - [2022] SADC 137

District Court of South Australia
(Criminal)
R v MULLEN
Criminal Trial by Judge Alone
[2022] SADC 137
Reasons for the Verdict of her Honour Judge Schammer
25 November 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
The accused is charged with one count of aggravated indecent assault against HET, a person under the age of 14 years.
The offence is alleged to have occurred between 31 December 2017 and 11 January 2018, when HET was aged 9 and staying overnight with the accused and his wife, HET’s second cousin, in their caravan.
HET claims that she was lying on a blow-up mattress on the caravan floor, trying to go to sleep, when the accused lay on the floor behind her, whispered to her to spread her legs and then touched her between her legs, near her vagina.
HET claims she then got up and left the caravan, intending to tell the accused’s mother, who was in an adjacent house, about the offending. HET claims the accused followed her outside, they encountered a spider and then returned to the caravan, without her entering the house and/or alerting the accused’s mother.
The accused’s wife was asleep in a queen size bed in the caravan and claims not to have heard or seen anything untoward either at the time of the alleged offending, immediately thereafter, or at any time during HET’s stay.
The accused gave a detailed record of interview to police wherein he denied the offending.
Verdict: Not guilty.
Juries Act 1927 (SA) s 7(1); Summary Offences Act 1953 (SA) s 74EB(2); Evidence Act 1929 (SA) ss 12AB; 13BA, referred to.
R v Corrigan (1998) 74 SASR 545, considered.

R v MULLEN
[2022] SADC 137
[Criminal]
Introduction

The accused, Rory Mullen, is charged on Information dated 25 February 2022 with one count of aggravated indecent assault of HET, a person under the age of 14.
The alleged offending is said to have occurred between 31 December 2017 and 11 January 2018, when HET was aged 9, and was staying with the accused and his wife, Tara Mullen (Tara), in a caravan in the backyard of the accused’s mother’s home at Jervois.
It is alleged that the accused rubbed his hand up and down between HET’s inner thighs, near her vagina, when HET was lying on a blow-up mattress on the caravan floor, and the accused was lying on the floor behind her. This is alleged to have occurred at night, when the caravan was in darkness and while Tara was asleep in a queen size bed, in the caravan, a few metres away. The accused denies the allegation.
The accused elected to be tried by a judge sitting without a jury pursuant to s 7(1) of the Juries Act 1927.
The Charge
Statement of Offence
Aggravated Indecent Assault (Section 56 of the Criminal Law Consolidation Act, 1935.
Particulars of Offence
Rory Mullen between the 31^st day of December 2017 and the 11^th day of January 2018 at Jervois, indecently assaulted HET.
It is further alleged that HET was under the age of 14 years at the time of the offence.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Elements of the Offence
The prosecution must prove the following three elements of the offence beyond reasonable doubt:
1.The accused assaulted HET.
2.The assault was accompanied by, or occurred in, circumstances of indecency.
3.HET was under the age of 14 years at the time.
An assault is the voluntary and intentional unlawful application of force to another person. The application of force can be a very slight application of force. It need not be violent. It need not be heavy. It need not cause injury. A simple touch is enough to constitute an assault. However, the application of force must be voluntary, and it must be intentional. It cannot be merely accidental.
The application of force must also be without lawful justification, such as consent or reasonable nonsexual parenting. Consent is irrelevant in this case, as a child under the age of 17 cannot legally consent to an indecent assault.
As to the second element, the prosecution must prove beyond reasonable doubt that the assault was accompanied by, or occurred in, circumstances of indecency. 'Indecent' means conduct which is offensive against ordinary contemporary standards of decency and propriety within the community. The conduct must have a sexual connotation.
As to the third element, it was an agreed fact that HET was born on 25 November 2008.[1] She was therefore aged 9 at the time of the alleged offending.
[1] Exhibit P9 at [2].
Legal Directions
General
The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The prosecution must prove the elements of the offence beyond reasonable doubt. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty.
HET’s evidence is critical to the prosecution case. The accused cannot be found guilty unless I accept HET’s evidence beyond reasonable doubt.
The accused elected not to give evidence at the trial. In doing so, he was exercising his right to silence. I must not draw any adverse inference against the accused for exercising that right. He was entitled to put the prosecution to proof and if the prosecution is unable to prove its case, then the accused is entitled to a verdict of not guilty.
The accused gave a record of interview to the police which was tendered as part of the prosecution case. I remind myself that this is not a contest. It is not a case of whose evidence, that of HET or the accused, do I prefer, or do I find to be the more likely or more convincing. I cannot return a verdict of guilty unless I am satisfied of the accused’s guilt beyond reasonable doubt. If there is a rational and reasonable explanation, on the evidence, consistent with the accused’s innocence, I must return a verdict of not guilty.
In these reasons, when I use the words ‘proved’, ‘established’ or ‘satisfied’, I mean to a standard of beyond reasonable doubt. If I am satisfied that there is a reasonable explanation consistent with the innocence of the accused, or I am uncertain where the truth lies, then I must find the charge has not been proven beyond reasonable doubt.
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or a part of a witness’s evidence.
As to the making of inferences, I must not guess or speculate. There must be a logical and rational connection between the facts I find and the inferences I draw.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice or fear and must not be influenced by public opinion in relation to this matter.
Complaint Evidence
HET’s cousin, TDP, gave evidence that HET told her about the alleged offending shortly after an occasion when she (TDP) also stayed overnight with the accused and Tara in their caravan.
I heard this evidence to inform me as to how the allegation first came to light. It gives me a more complete picture of HET’s account. The evidence was also led as evidence of the degree of consistency of HET’s conduct.
HET’s mother, MAC, gave evidence that in November 2020, HET told her about the alleged offending, including details as to what occurred immediately after the alleged offending. This evidence was admitted as an elaboration of the initial complaint. I heard this evidence to inform me as to how the allegation came to be reported to police. The prosecution relied upon this evidence as demonstrating consistency in HET’s conduct, being relevant to my assessment of her credibility.
The complaint evidence was not admitted as evidence of the truth of the allegations and cannot be used as some form of independent evidence to prove what happened, as only HET’s evidence is able to prove that.
There may be many and varied reasons why an alleged victim of a sexual offence has made a complaint at a particular time or to a particular person. It is a matter for me as the trier of fact to determine the significance, if any, of the complaint evidence in the circumstances of this case.
Discreditable Conduct
The prosecution led evidence of discreditable conduct.
HET gave evidence that just before bedtime and therefore just prior to the alleged offending, she, the accused and Tara were sitting in the caravan. HET gave evidence the accused said to her, in Tara’s presence, that he ‘would like to see me naked but mum wouldn’t approve’ and that in response, Tara said, ‘just stop being stupid’. [2] She said this made her feel a little uncomfortable.
[2] MFI P2 at Q103.
The prosecution does not rely on this evidence, being evidence of discreditable conduct, for a propensity purpose, rather the evidence was led to put the alleged offending in context, to provide an explanation as to why HET complied with the accused’s requests with respect to the offending and did not immediately complain about the alleged offending to Tara (or anyone else).
Counsel for the accused submitted that in circumstances where Tara gave evidence that the accused simply did not make this comment, this evidence was important in terms of my overall assessment of HET’s credibility and reliability.
I am satisfied that the probative value of this evidence outweighs any prejudicial effect it may have on the accused.
If I accept HET’s evidence that the accused made this comment to her, I am permitted to use it for the purposes as outlined, but only for these purposes. However, I must not reason that because the accused made the comment that he is more likely to have committed the offence, that the accused is a person of bad character and therefore the type of person who would have committed the offence, such that he must be guilty of the offence. Such reasoning is impermissible as it denies the accused the presumption of innocence.
Evidence of HET and TDP
On 16 December 2020, HET participated in an interview with Detective Brevet Sergeant Joanne Lee Rochow (Det Rochow), a prescribed interviewer for the purposes of s 74EB(2) Summary Offences Act 1953 (SOA). An audio-visual record of the interview was made. At the time of this interview, HET was aged 12.
On 8 July 2021, TDP participated in an interview with Det Rochow. An audio-visual record of the interview was made. At the time of this interview, TDP was aged 11.
On 5 April 2022, a judge of this court, being satisfied that the pre-conditions for admissibility had been met in each case, ordered that the audio-visual records of those two interviews be admitted as evidence at trial pursuant to s 13BA of the Evidence Act 1929 (EA).
On that same day, the judge, presiding over a pre-trial special hearing held in accordance with s 12AB of the EA, satisfied herself, by way of questioning of both HET and TDP, as to each witness, that the presumption the witness was capable of giving sworn evidence, was not displaced.
During that hearing, both HET and TDP gave sworn evidence by way of further examination-in-chief and cross-examination, via audio-visual link from outside the court room, in the presence of a court companion. Their evidence was recorded.
On 11 October 2022, I ordered that the audio-visual record of that evidence, made pursuant to s 12AB of the EA, be admitted as evidence in the trial pursuant to s 13BA of the EA.
I must treat this evidence in the same way as any other kind of evidence and not allow the way in which it was presented to influence the weight given to that evidence. I must not draw any inference adverse to the accused arising from the fact the evidence was given in this way.
Witnesses and Exhibits
The prosecution called evidence from HET’s mother, MAC, HET’s stepfather, CNC and Tara.
Numerous exhibits were tendered, including a disc containing the prescribed interview conducted between Det Rochow and HET on 16 December 2020 (Exhibit P1), a disc containing the prescribed interview conducted between Det Rochow and TDP on 8 July 2021 (Exhibit P3), and a disc containing the evidence given by both HET and TDP at the s 12AB hearing (Exhibit P5).
In addition, the prosecution tendered a disc containing an audio-visual recording of the accused being given his arrest rights and participating in a record of interview with police on 21 January 2021 (Exhibit P7).
The accused elected not to present any evidence.
Background – Uncontroversial Evidence
HET’s mother, MAC, is Tara’s first cousin, meaning HET is Tara’s second cousin.
At the time of the alleged offending, HET was aged 9 and usually lived with MAC, CNC and a younger sibling at Wolseley, a country town near Bordertown.
On 18 December 2017, HET’s great-grandmother (nana) died.[3] As a result, in the weeks immediately prior to the alleged offending, HET’s extended family, including HET, the accused and Tara, gathered together on several occasions.
[3] HET’s great-grandmother was the grandmother to both MAC and Tara.
MAC was heavily pregnant with her third child, TC, who was born on 10 January 2018.
It was in this context that arrangements were made for HET to stay with the accused and Tara. Although the witnesses differed in terms of their recollection as to whether this was the only time HET ever stayed with the accused and Tara, and whether it was for one or two nights, for reasons that follow, I am satisfied that HET only stayed with the accused and Tara on one occasion, for two consecutive nights and that this occasion was in early January 2018, prior to the birth of TC on 10 January 2018.
In January 2018, the accused and Tara were living in a caravan housed in the backyard of the accused’s mother’s house at Jervois.
TDP, HET’s younger cousin, also went to stay with the accused and Tara in the caravan. Her stay was shortly after HET’s stay. Nothing untoward occurred during TDP’s stay.
The alleged offending was first reported to police on 13 November 2020. The accused was arrested and interviewed with respect to the alleged offending on 21 January 2021.
The Evidence
Complainant’s Evidence
As stated, HET’s evidence comprised an audio-visual record of an interview conducted with Det Rochow on 16 December 2020, when HET was aged 12 and additional sworn evidence given by her both in-chief and by way of cross-examination at the pre-trial special hearing on 6 April 2022, when she was aged 13.
After a series of preliminary questions, all of which were answered fluently by HET, Det Rochow asked HET to tell her what happened to her. After a lengthy pause, and while appearing very uncomfortable, HET then gave a succinct description of the alleged offending, in the following terms:[4]
[4] MFI P2 at Q12.
A: so um, I went to stay at my second cousins house and um, her husband and the first night I stayed that I’m pretty sure I only stayed there for a night. Um, I slept on a like they had their own caravan that they slept in and I slept on a blow up mattress and um, it was time to go to bed so we went to bed and I could feel someone like laying behind me and I didn’t know who it was. And then he was talking and he told me to open my legs and I didn’t know what to do because like I got scared so I just did it and then he put his hands in between my legs near my um, private part and then he told me it felt warm. And then um, we were um, I don’t know how it happened for but then I tried to get up to like go into the actual house but then um, coz I was gonna tell his mum but he followed me then he told, he said to me oh um, it’s time to go back to bed but then I’m pretty sure it was earlier that day in front of um, my second cousin he told me if I could see you naked I would but um, I don’t think your mum would like it and then my second cousin Tara told him to not be stupid.
HET said that Tara had made a picture book for her, documenting her stay, and on the book was written the date ‘2018 January’.[5]
[5] MFI P2 at Q28.
HET said the caravan was located in the backyard, behind the accused’s mother’s house, and said there was a shade cloth between the caravan and the house. She drew a plan of the caravan, and its contents.[6]
[6] Exhibit P6.
HET recalled that as you entered the caravan, there was a Queen Size bed (QS bed) to the right of the door, with the bed head up against the far-right hand side of the caravan, and the left-hand side of that bed adjacent the wall to the immediate right of the door. At the foot of the QS bed, there was a couch, described by HET as a ‘double’ in the sense that two people could sit on it.[7] In cross-examination, she denied propositions put to her that that there was no couch in the caravan, and that there were just two reclining chairs in the caravan.[8]
[7] MFI P2 at Q69-70.
[8] Transcript PTSH at T 39.23-40.7.
To the right of that couch, there was a single purple chair in the shape of a hand (the hand couch). There was a television on the floor on the left-hand side of the caravan, opposite the couch and the foot of the bed. The blow-up mattress, on which she was to sleep, was positioned on the floor, between the television and the couch.
HET said that Tara gave her bedding for the mattress, including a pillow, sheet and blanket, which were matching in design and had flowers on them.[9]
[9] MFI P2 at Q137-139.
HET explained that this was the first time she had stayed at the accused’s place.[10] She was unsure how long she had known the accused but said that she was pretty sure she met him for the first time at her nana’s house.[11]
[10] MFI P2 at Q49.
[11] MFI P2 at Q94-96.
In cross-examination, HET denied a proposition put to her that she stayed at the caravan for two nights. When she was asked if she went to see a movie during the stay she said no, but she did recall going to the cinema to watch a movie with the accused and Tara on another occasion, but not when she stayed with them.[12]
[12] Transcript PTSH at T 36.10-28.
HET told Det Rochow she arrived in the early afternoon and she remembered playing games, in the caravan, with the accused and Tara.
HET remembered playing Yahtzee, while sitting on the floor. She also remembered playing a game which involved drawing a person, where the paper was folded, and one person drew the head, one person drew the body and another person drew the feet of the person. They were sitting on the couches while playing the drawing game, and when it was the accused’s turn, he had to draw the body of the person, and that he drew ‘boobs’.[13] She described feeling comfortable and safe at this time.[14]
[13] MFI P2 at Q129.
[14] MFI P2 at Q132.
HET was asked to describe in more detail the comment she said the accused had made about wanting to see her naked. She said that he made this comment just before bedtime, when she was sitting on the hand couch, Tara was sitting on the 2-seater couch and the accused was standing up.[15] The accused said to her that ‘he would like to see me naked but Mum wouldn’t approve it’.[16] When he made this comment, ‘he wasn’t really laughing’, but ‘he had like a smirk on his face’.[17] Tara told the accused not to be stupid.[18]
[15] MFI P2 at Q116-118.
[16] MFI P2 at Q103.
[17] MFI P2 at Q122.
[18] MFI P2 at Q12 and Q116.
HET said that prior to the accused making this comment, she had felt safe, although she had been a little nervous as it was her first time staying there. However, after the accused said this, she felt a little bit uncomfortable.[19]
[19] MFI P2 at Q109-112.
HET said she was wearing a t-shirt and shorts when the accused made this comment.[20] She described these as her bedtime clothes and recalled changing into them after she had a shower in the bathroom (in the house).[21]
[20] MFI P2 at Q119.
[21] MFI P2 at Q123-126.

HET said that Tara went to bed first, in the QS bed, as she had to get up early the next day to go to work.[22] She laid down on the blow-up mattress, on her left side, facing the QS bed, with her head at the end of the mattress positioned away from the door.[23]
[22] MFI P2 at Q145.
[23] Transcript PTSH at T 31.28-32; T32.19-24.
It was dark.[24] She could see the QS bed from where she was lying but not Tara, due to the double couch being between the mattress and the foot of the QS bed.[25] She assumed the accused was in the QS bed with Tara.
[24] Transcript PTSH at T 32.8.
[25] MFI P2 at Q152-153.
HET said that she tried to get some sleep, then she felt someone behind her, lying next to her. She estimated this was about 10 minutes after Tara had gone to bed.[26] HET said she was lying on the mattress, under the blanket, and the person lying next to her was also under the blanket, but on the floor next to the mattress.[27]
[26] MFI P2 at Q181.
[27] MFI P2 at Q147, Q159-161.
She could hear the person breathing. He was touching her back and had one of his hands on her arm.[28] She realised the person was the accused when he started talking to her.[29] She could not see the accused or any part of him.[30] He told her, in a whisper, to open her legs.[31] She was scared and did not know what to do, so she just slowly did it.[32]
[28] MFI P2 at Q158, Q162-165.
[29] MFI P2 at Q171.
[30] Transcript PTSH at T 32.11-13.
[31] MFI P2 at Q178-179.
[32] MFI P2 at Q12 and Q189.
HET said the accused then put his hand on her bottom leg, really close to her ‘private part’.[33] He told her to close her legs, which she did. He said it felt warm. [34] While her legs were together, he squeezed her leg and she could feel his hand moving up and down. He did not say anything at that time.[35] She did not say anything to him.[36] His hand was underneath her shorts, as they had ‘kinda lifted up’ but on top of her knickers.[37] She could not remember if she had moved away at all when he put his hand near her knickers, nor could she recall for how long this had happened, but she said it stopped when she got up to go and tell the accused’s mother.[38]
[33] She confirmed that by this terminology, she meant her vagina (at Q199).
[34] MFI P2 at Q192-193.
[35] MFI P2 at Q200-203.
[36] Transcript PTSH at T 31.20-27.
[37] MFI P2 at Q260-263.
[38] MFI P2 at Q204.
HET said she got up, walked out of the caravan and the accused followed her. As they walked between the caravan and the house, there was a bit of the shade that they had to duck under to get to the house. There was a big spider on the shade.[39] The accused said to her that they would go to see if the spider was there the next day, and that they should go back to bed. He held onto her back and said, ‘let’s go back inside’.[40]
[39] MFI P2 at Q206-208.
[40] MFI P2 at Q208, Q210-214.
In cross-examination, HET said that she had not seen the spider during the night before she went to bed. She said neither she, nor the accused had gone back into the house to get snacks and drinks when they were playing games in the caravan.[41] She agreed that the shade cloth was attached to the verandah at the back of the house, and not to the caravan.[42] She denied that to get to the caravan, from the house, that you had to walk through an annexe. She maintained that the area between the caravan and the house was an open area in the sense that there were no walls, and no roof.[43]
[41] Transcript PTSH at T 37.7-23.
[42] Transcript PTSH at T 38.5-15.
[43] Transcript PTSH at T 38.16-28.
She said that they went back to the caravan. The accused lay back down beside her and she went to sleep. He did not say anything at this time. When HET was asked whether he was touching her at this time, she said ‘No, not that I remember’.[44]
[44] MFI P2 at Q216-220.
When HET woke up the next morning, the accused was in the QS bed.[45] She did not feel really comfortable, as she was staying with the accused the whole day, as Tara was at work.[46] She watched the accused doing a workout in a gym in the shed and he did not have a shirt on, which made her feel a bit uncomfortable.[47]
[45] MFI P2 at Q223-224.
[46] MFI P2 at Q225.
[47] MFI P2 at Q226-234.
HET said that the first person she told about what had happened to her was her cousin, TDP, and that she had also told her mum. She said:[48]
[48] MFI P2 at Q14.
A. um, I told my cousin when she went and stayed there a couple [inaudible] couple months or couple of weeks later. ‘cause I asked her if anything, if he did anything to her and she said no and then one night we were like talking about this thing of ring of paedophiles or something around Australia whenever it was and then my cousin Tarni said you need to tell your mum and I told her no and then when I was doing something for Mum um, Tarni told Mum then I told mum the whole story.
HET gave evidence that she told TDP when they were walking to the bus stop, a short time after she had been to stay at the caravan.[49]
[49] Transcript PTSH at T 33.4-15.
When asked to recall what she had told TDP at that time, she said:[50]
[50] Transcript PTSH at T 33.19-26.
A.I’d asked Tarnie if he had done anything weird to her when she had stayed there, and she said ‘No, why’ and then I told her that he had said that – he said that he would see me naked but mum wouldn’t approve of it, and then I told her that when I was lying down that he had came behind me and started touching me in the wrong places and that he told me to open my legs and said it felt warm.
She told TDP at that time because TDP had just recently come back from staying at the caravan with the accused and Tara.[51]
[51] Transcript PTSH at T 33.38-34.1.
HET explained that just before she told her mum about the alleged offending, she, her mum and TDP were sitting in her nan’s lounge room watching television, when a story came on the news about a ring of paedophiles. TDP said to her ‘you should tell her mum’, and she told TDP to be quiet.[52] She then left the room to put some rubbish in the bin, and when she returned, TDP told her that she had told her mum.
[52] Transcript PTSH at T 34.23-24.
She then went outside and told her mum about what had happened to her. When asked what she had told her mum, HET gave the following evidence:[53]
[53] Transcript PTSH at T 35.1-5.
A.I said that he had – he would have liked to have seen me naked but that she wouldn’t approve, and then I said that he touched me in the wrong places and that he was telling me to open my legs and that I got scared and I did it and then he said it felt warm.
HET did not tell her mum anymore about where on her body the accused had touched her. She told her that the touching ended when she got up to go and tell his mum, and that the accused had told her to go back inside the caravan and go to sleep.[54]
[54] Transcript PTSH at T 35.12-25.
TDP’s Evidence
TDP’s evidence comprised an audio-visual record of an interview conducted with Det Rochow on 8 July 2021, when TDP was aged 11 and additional sworn evidence given by her both in-chief and by way of cross-examination at the pre-trial special hearing on 6 April 2022, when she was aged 12.
TDP told Det Rochow that HET told her that the accused had touched her on her thighs.[55] She explained that HET told her this, after HET had been to stay with the accused and Tara in Jervois, in either January 2018 or 2019, and about a month or two after she (TDP) had also been to stay with them.[56] HET told her this when they were walking home from the bus stop.[57]
[55] MFI P4 at Q32.
[56] MFI P4 at Q41, Q53, Q89.
[57] Transcript PTSH at T 47.6, noting that although TDP had said, to Det Rochow, that this conversation occurred at her nan’s house, it is clear that by that response, she was referring to where she was when she told HET’s mother what HET had previously told her.
She said that HET told her that the accused touched her on the upper part of her thighs and that he said it was warm and that this had happened in the caravan, on her mattress, when she went to stay with the accused and Tara.[58] She said that HET asked her if anything had happened to her when she stayed at the caravan, and that she had said no.[59]
[58] MFI P4 at Q113-Q117, Q140.
[59] MFI P4 at Q124.
When TDP was asked what else HET had told her, she said:[60]
[60] MFI P4 at Q141.
TP: Um, she said that Tara was in the bed and he was on the floor and she said, also said that Tara told him to stop and he also said if I could touch you I would but your mum probably wouldn’t allow that.
TDP went on to say that HET had said she told the accused to stop, but he did not listen, and that was when Tara told him to stop.[61]
[61] MFI P4 at Q144-Q147.
TDP said that sometime later, when she was at her nan’s house, in the lounge room, with HET and others, including HET’s mother, there was something on television about a paedophile ring. When HET left the room, TDP told HET’s mother what HET had disclosed to her about the offending.[62]
[62] MFI P4 at Q93-Q112, Transcript PTSH at T 47.7-14.
MAC’s Evidence
MAC is HET’s mother and Tara’s first cousin.
MAC gave evidence that in January 2018, at a time when she was heavily pregnant, Tara asked her if HET could go to stay with her.[63] She said HET had previously gone to stay with Tara, but did not end up staying, and instead came back home to Tailem Bend.[64] She said HET only stayed for one night with Tara and the accused, in January 2018.[65] She could not recall how HET got there, or how she got home.
[63] T 14.7-14.
[64] T 14.15-14.17.
[65] T 14.21-15.20.
MAC gave evidence that in November 2020, she was at her mother’s house, in the lounge room, watching television. There was an item on the news about a paedophile ring. She said TDP turned to HET and said, ‘You should tell your mum, what happened when you stayed at Tara and Rory’s.’[66] HET then told TDP to shut up, gave her a dirty look and walked out of the room. MAC asked TDP what had happened, and TDP told her to ask HET. MAC waited a while, the followed HET and asked her about what had happened. As to what HET had told her, she gave the following evidence:[67]
[66] T 16.13-14.
[67] T 16.32-35.
A.She told me that when she stayed at Tara and Rory's that Rory had laid down behind her and told her to open her legs and put his hand between her legs and stated that it was 'nice and warm'.
HET told her this had occurred in the caravan, on the floor, at bedtime and that the accused had touched her between the legs. She had felt uncomfortable, so she asked to go inside to see the accused’s mother. As they started to walk inside, they saw a spider and the accused had said ‘It’s getting late so we should go back to bed’.[68]
[68] T 17.33-34.
MAC said that HET told her that while she was there, they had played a game where they had to draw parts of bodies and that the accused was drawing inappropriate things. HET also told her the accused had said to her ‘I’d like to see you naked, but I don’t think your mother would approve’.[69]
[69] T 176.38-17.2; T 17.8-9.
MAC gave evidence that HET did not tell her earlier, because she thought she was going to get into trouble. She said HET was crying and upset during this conversation.[70]
[70] T 18.1-9.
In cross-examination, MAC was asked whether on the one occasion HET actually stayed at the caravan, her husband had gone to the caravan after receiving a phone call from HET but had returned home alone thereafter. MAC said she could not remember.[71]
[71] T 20.5-14.
CNC’s Evidence
CNC is HET’s stepfather. He gave evidence that HET stayed with the accused and Tara on two separate occasions. He was unable to recall when the first occasion was but said that she did not end up staying the night, as he received a phone call to go and pick her up, so he did. He thought this was a bit after 9 pm.[72]
[72] T 21.20-22.1.
CNC gave evidence that the second time HET stayed with the accused and Tara, she stayed for one night only. He was unable to recall when this occasion was, nor how HET got there, or how she got home.[73]
[73] T 22.4-21.
In cross-examination, CNC was asked if, when he attended at the property where Tara and the accused was staying, after receiving the phone call, he had spoken with HET, but had then returned home by himself. He said he did not believe so, but this was possible.[74] He agreed it was possible that he had attended on that occasion at around 10:00 pm.[75] He agreed that the caravan door opened into an annexe, rather than straight outside.[76]
[74] T 23.23.26-31.
[75] T 23.16-19.
[76] T 23.13-15.
Tara’s Evidence
Tara gave evidence that HET stayed with her and the accused on one occasion only, for the period 6 to 8 January 2018, in the caravan, with them, in the back yard of the accused’s mother’s house. The visit was HET’s idea and she stayed with them for a total of two nights.[77]
[77] T 29.12-21; T 30.21-22.
Tara described the caravan as about 20 feet long. The caravan was old and rickety and had a door made of tin or aluminium. To enter the caravan, from the house, you walked through an annexe which was attached to the caravan. This was a structure with three tin walls and a gravel floor. The annexe itself had a tin door with a metal latch. [78]
[78] T 35.26-36.5; T36.32-33.
Tara gave evidence that she and the accused slept in a QS bed in the caravan. At the end of the bed there was a curtain, which had ties on either side, that she would close if the accused was watching a movie late at night, and she wanted to get to sleep. She said the curtain was open during HET’s stay.[79]
[79] T 31.11-27.
There was a low-lying TV unit with drawers to the left of the door to the caravan and two chairs to the right of the door – one recliner and one ‘hand’ chair.[80]
[80] T 32.2-7.
She and the accused collected HET from her parents’ house at Tailem Bend, to bring her to the property and she was picked up by her nana on the Monday, after Tara had finished work that day. She did not work at all during the weekend, as it was her rostered weekend off.[81]
[81] T 29.23-24.3.
Tara gave evidence that they picked up HET at around 4:30 pm. She recalled going to the school playground, playing games and doing arts and crafts. She described the latter activities as involving drawing, gluing and sticking, and said that the accused did not participate in those activities.[82]
[82] T 32.11-23.
She provided HET with a blow-up mattress to sleep on, with appropriate bedding. The blow-up mattress was placed on the floor of the caravan between the television and the two chairs.[83]
[83] T 33.3-4; T33.20-27.
The kitchen in the caravan had been gutted to make it simply one large room. She and the accused used the kitchen and bathroom facilities in the accused’s mother’s house. Tara gave evidence that if they needed food supplies, or to use the kettle, or make drinks, they would go into the house to do so.[84]
[84] T 37.28-37.
Tara recalled walking with HET to the house at around dusk, possibly 6 or 7 o’clock, on the first night of HET’s stay. She said there was an orb spider, which would come out every night and make his web on the back of the verandah. They stopped and she showed HET where the spider was, so that she could avoid it.[85]
[85] T 37.38-38.12.
Tara recalled that between around 10:00 pm to 10:30 pm, HET was lying on the mattress, while she and the accused were quietly watching television. She believed there was probably one light on in the caravan at this time. HET was unsettled. She gave HET her mobile phone to call her step-father, CNC, who then attended at the property and knocked on the annexe door. HET went outside, into the annexe and talked to CNC for around 10 to 15 minutes. HET then came back inside the caravan. They had a Milo, HET re-settled, and she went to sleep. She described HET as being half on and half off the mattress, and said she had to gently push her back onto the mattress, in order to get up from her chair, to get to bed, given the proximity of the mattress to her chair.[86]
[86] T 32.24-33.5; T 33.15-27.
Tara gave evidence that she went to bed about 11:00 pm. At this time, the light was still on inside the caravan. The accused came to bed within 5 minutes of her, at which time all of the lights were off. They lay in bed for a while, whispering to each other and making sure HET was settled, before they went to sleep.
Tara gave evidence that sometimes she slept with an eye mask on, but she did not think she had it on that night. As to why she was not wearing the eye mask, she explained that she was talking with the accused in bed and that wanted to be on alert in case HET needed her attention.[87]
[87] T 34.10-28.
Tara gave evidence that she was a light sleeper. By this, she meant that it took her a while to get to sleep and that when she was asleep, any noise or sound would cause her to wake up again.[88] She said that because the caravan was so old and rickety, you could hear any movement within it. If either the caravan door or the annexe door was opened, you would notice it and you could hear the footsteps of anyone walking through the gravel floor of the annexe.[89] She slept all the way through both nights that HET stayed with them.[90]
[88] T 38.16-19.
[89] T 36.17-37.2.
[90] T 38.29-39.11.
Tara gave evidence that after falling asleep on the first night of HET’s stay, her next memory was of waking, the following morning.[91] That day, they went to the Wallis Cinema to see a movie, Coco, then to Kmart to go shopping and then to lunch at ‘Carl’s Jr’.[92] She said HET slept better on the second night.[93]
[91] T 33.28-34.9.
[92] T 34.32-38.
[93] T 39.8.
Throughout the entirety of HET’s stay, she did not observe or hear anything inappropriate happen. She did not observe any physical contact between the accused and HET. She did not hear the accused say to HET ‘I’d like to see you naked but mum wouldn’t approve’, nor had she responded to any such comment by saying ‘Don’t be stupid’.[94]
[94] T 35.1-3; T 38.20-28.
Accused’s Arrest and Record of Interview
On 21 January 2021, police attended at the accused’s home at Port Mannum and arrested the accused. He subsequently accompanied police to the Murray Bridge Police Station where he participated in a police interview. Tara was present for that interview. A disc containing an audio-visual recording of both the accused’s arrest and police interview was played and tendered at trial.[95]
[95] Exhibit P7.
Upon being informed by police that he was being placed under arrest for aggravated indecent assault, the accused was cooperative. He acknowledged that he knew HET and that HET had stayed with him and Tara, in their caravan at Jervois, between 1 and 10 January 2018.[96]
[96] MFI P8, part 1 at Q52 and Q54-57.
During the interview, the accused told police that HET stayed for two nights in the caravan, just prior to her mother giving birth and that some time thereafter, her cousin, TDP, had stayed with them for one night.[97] The accused said that prior to HET staying with them, he had not had much to do with her, or her immediate family.[98]
[97] MFI P8, part 2 at Q36-37; Q64-74, Q205-210.
[98] MFI P8, part 2, at Q188 and Q192.
The police explained to the accused details of and incidental to the alleged offending, including HET’s description of encountering a spider outside the caravan, immediately after the offending.
The accused acknowledged the accuracy of some of the surrounding circumstances, but immediately denied the offending. He described the allegations as ‘totally false’ and said, ‘… She’s fabricated a good story there for some reason’.[99]
[99] MFI P8, part 2 at Q46 and Q48.
The accused was asked if he remembered the night in question. He stated:[100]
[100] MFI P8, part 2 at Q49.
A: Yeah we played games, yeah we played games all night. We did yep, Tara went to bed um, Hailee went to bed then I went to bed not long after and there was a spider, she did walk into a spider because it’s on the back veranda and she did come back screaming, she was a bit funny that night actually, she was a bit, she was a bit sooky but I just thought ‘cause she’s never her grandma you know her Nana just die, it wasn’t long after Nana died so.

The accused was asked if they had played a game where they took turns at drawing parts of the body. He initially stated no, but when provided with more details, namely that the allegation was that they had played a game taking turns to draw body parts, and he had drawn a chest with boobs on it, he agreed he knew of that game. When asked if he would have possibly drawn boobs on the body, he responded ‘Oh probably’.[101] Later, he was asked if he was saying it was possible there could have been a game where he drew boobs on a bit of paper, he stated, ‘Absolutely yes’.[102] He said they all played the game and stated ‘So yeah there’s a guarantee there’s going to be tits drawn I guarantee’.[103]
[101] MFI P8, part 2 at Q58-59.
[102] MFI P8, part 2, at Q76.
[103] MFI P8, part 2, at Q81-82.
He denied saying, in HET’s presence, that he would like to see her naked. He stated:[104]
[104] MFI P8, part 2, at Q83.
No, and I would never say that in front of a child. No of course not.
The accused was asked to describe the interior of the caravan. He stated that inside the caravan there was a QS bed, a television and two single recliner chairs. He said HET was sleeping on a blow-up mattress on the floor of the caravan. He and Tara slept in the QS bed - he slept on the left-hand side and she slept on ‘the right-hand side when you’re in the bed’.[105]
[105] MFI P8, part 2 at Q105.
The accused told the police that they stayed up until ‘like midnight’, which was late for Tara. He thought Tara had to work the next day. He said HET had probably gone to bed at the same time as Tara, and that he went to bed about five minutes after Tara, at which time the caravan would have been pitch black.[106]
[106] MFI P8, part 2, at Q108-121, Q162.
He said that when he went to bed, HET was sleeping on the mattress on the floor, with her head positioned furthest away from the door. He said they went to sleep, and added, ‘[t]here was a bit of snoring going on’, mainly from HET but also from Tara.[107]
[107] MFI P8, part 2 at Q129-130.
When asked to explain the incident involving the spider, the accused stated:[108]
[108] MFI P8, part 2 at Q133.
A: Oh that was du, that was as we were playing during the night you know going down and getting snacks or whatever, drinks and popcorn whatever the hell we had going on yeah had a spider on the back veranda so as you walk down she walked straight through it ha.
He said that that it was on one of the trips back to the house that there was a spider on the back verandah, that HET did not know it was there and walked into it.[109] He was uncertain if the spider incident had occurred on the first or second night of HET’s stay. He said he was ‘pretty sure’ they had played games both nights, so as to keep HET entertained.[110]
[109] MFI P8, part 2 at Q159.
[110] MFI P8, part 2, at Q196-198.
When asked to explain in detail what he had meant when he said that HET was ‘a bit off’ that night, he said she was ‘a sooky la la’, but as he did not know her well, he did not know if that was how she normally was, or whether it was because of the grief of recently losing her great nana. He then remembered that CNC had come over while she was staying at the caravan. He stated:[111]
[111] MFI P8, part 2 at Q296-307.
A:    Yeah and he came and knocked on the van like are you alright or something. I think she might’ve rang him I reckon, I reckon she might’ve rung him and said oh I don’t know Dad’s someth, I’m pretty sure she did. Oh, I’ll have to confirm with Tara but I reckon she did ring him if my memory serves right so she was a bit …
Q297. So he came and checked on her …
A:    Yeah he came over.
Q298. But then she …
A:    And said are you alright.
Q299. Then he left?
A:    Yeah and she stayed.
Q300. And, and Hailee stayed?
A:    Yeah.
Q301. For another night after …
A:    It’s a bit weird.
Q302. That.
A:    Yep, yes.
Q303. Okay.
A:    True correct.
Q304. But he only came over the once, he didn’t come over the both times?
A:    Once.
Q305. Okay.
A:    Yeah and that was on the first night ‘cause she was a bit sooky la-la but I just …
Q306. Okay.
A:    Either thought it was either her that’s how she is or it’s because the Nana thing.
Q307. Okay.
A:    But yeah he did come over.
He said he had given HET a hug when they first picked her up and when they dropped her home. As to whether there was any other physical contact between them during her stay, he stated, ‘No not really’, and said there was ‘not even a high five I don’t even think’.[112]
[112] MFI P8, part 2 at Q291-292.
The accused said that on the second day of HET’s stay they had gone to the pictures at Mt Barker to see Coco, and that they had then gone to get lunch at Carl Juniors.[113] He did not notice any difference in her behaviour between the time they picked her up and when they dropped her off.[114]
[113] MFI P8, part 2 at Q216-225.
[114] MFI P8, part 2 at Q294.
Closing Addresses of Counsel
Prosecution Submissions
The prosecutor acknowledged that HET’s evidence was critical to the prosecution case. He submitted that when I carefully analysed HET’s evidence, I could be satisfied beyond reasonable doubt that she was telling the truth as to the circumstances of the alleged offending.
The prosecutor highlighted those aspects of HET’s evidence which he submitted were compelling and demonstrated that she was recalling an event which had actually happened to her, rather than simply retelling an imagined or rehearsed story.
He referred to HET’s visceral reaction when asked by Det Rochow to describe what had happened to her. HET was clearly upset and took some time to compose and gather herself before outlining the circumstances of the offending, using language consistent with her age and the impact of this lived experience upon her. HET’s recollection of hearing the accused breathing as he lay behind her, and whispering to her, were compelling features of her account and consistent with the accused having brazenly offended, despite the proximity of Tara in the adjacent QS bed.
The prosecutor submitted that HET’s evidence on the facts and circumstances of the offending had remained consistent, with any inconsistencies or potential inaccuracies in her evidence relating only to peripheral or unimportant matters, for example, whether she stayed two nights or one, whether there was a couch or two recliners in the caravan, or whether she had seen a movie at a cinema during the stay. What was important in terms of her memory of the stay was the fact of the offending, and on this issue, her version of events had remained consistent, thus demonstrating her credibility and reliability.
The prosecutor submitted that HET’s evidence about how she felt when the accused made the comment that he wanted to see her naked, was entirely consistent with how one would expect a nine-year-old girl to react in those circumstances. The comment was consistent with HET feeling somewhat uncomfortable, and unsettled, thus potentially contributing to her then calling CNC, as both Tara and the accused claim she did. Further, it was submitted the fact this comment was made, explained why HET had reacted the way she did during the offending, that is, she complied with the accused’s request to open her legs, and did not protest to Tara. Moreover, if HET had made this up, and the comment was not made, why would HET say the comment had been made in front of Tara, who could then simply contradict her?
The prosecutor argued that HET’s response to the offending was understandable having regard to the circumstances in which she found herself, that is, away from home, and not wanting to get into trouble. She had unsuccessfully tried to alert the accused’s mother. She could not call her step-father on Tara’s phone, as Tara was asleep. If HET had stayed another day (and night) with the accused and Tara thereafter, this could be readily understood having regard to the fact that she was a scared young girl, confused about what had happened and worried about the ramifications that may follow if she told anyone what had happened.
The prosecutor submitted that there was the opportunity for the offence to have been committed, notwithstanding Tara’s evidence. Despite the proximity of the mattress to the QS bed, it was dark, and there was no clear view from the QS bed to the blow-up mattress on the floor below, having regard to the chairs (or couch) between the bed and the mattress. If Tara was sleeping on her side, she may have been facing away from the mattress. If she was, in fact, wearing an eye mask to sleep, as, on the accused’s account, she often did, this would have made it even harder for her to see anything untoward.[115]
[115] See MFI P8, part 2 at Q114.
In addition, the offending itself was conducted quietly, with the accused whispering to HET and HET saying nothing in reply.
Although Tara gave evidence that she was a light sleeper, and therefore that she would expect to hear movement within the rickety caravan or of people going in and out of the caravan and/or the annexe, it was submitted that there remained every possibility that, in fact, Tara was asleep, and simply did not hear HET and the accused leave the caravan, and then return shortly thereafter, immediately after the offending. There was no evidence of any specific loud noise being created either by the accused or HET during or immediately after the offending. As such, the fact Tara remained asleep was unremarkable and not inconsistent with HET’s recollection of events.
The prosecutor submitted that the circumstances and content of the initial complaint made by HET to TDP showed a high degree of consistency of conduct and supported her credibility. The fact HET had told her cousin, shortly after her cousin had also stayed with the accused and Tara in their caravan, was exactly the kind of scenario in which one would expect a scared nine-year-old to first disclose the offending. It was submitted that that there were no material inconsistencies in HET’s account of the offending and what she told TDP, albeit it was acknowledged that TDP recalled HET telling her that she had told the accused ‘no’ during the offending.
Similarly, it was submitted that HET’s credibility was supported by the later elaborated complaint made to her mother, the circumstances in which she came to disclose the offending to her mother and her mother’s recollection of what she was told, being largely consistent with HET’s account. MAC had described HET as being upset and crying during the conversation, consistent with HET’s demeanour during the interview with Det Rochow, thus further supporting her credibility.
It was submitted that if the accused’s responses during his interactions with the police were carefully examined, the court should have cause to doubt his genuineness and his apparent surprise upon being told the allegations. It was submitted that the accused’s claim that HET had fabricated a good story was evasive and self-serving, and that his apparent eagerness to assist police was equally consistent with him being nervous at having finally been caught out.
It was submitted that aspects of the accused’s account were inconsistent – namely that he tried to preserve some space between himself and his mother’s home, on the one hand, and his claim to having to go into the house, during the evening, to source snacks. It was submitted the latter was simply offered up as a way to innocently explain how HET came to see the spider. Similarly, it was suggested that by including in his statement that both HET and Tara were snoring, and making light of the situation, the accused was simply trying to distance himself from the allegations.
The prosecutor also highlighted aspects of the accused’s statement which were consistent with HET’s evidence, lending credibility to her account, for example the fact HET was wearing a t-shirt and shorts, and that Tara went to bed first.
It was submitted that I could be satisfied beyond reasonable doubt that the accused had acted opportunistically to offend in the circumstances as HET had described.
Accused’s Submissions
Counsel for the accused supplemented her oral closing address with a written outline of closing submissions.
She submitted that when the court closely analysed all of the evidence and in particular, Tara’s evidence, it simply must be left with a reasonable doubt as to the accused’s guilt and therefore must return a verdict of not guilty.
It was submitted that HET’s evidence as to the alleged comment made by the accused, that he would like to see her naked, was an important and integral part of HET’s account with respect to the offending. It had been led to provide context to the allegation and to ensure that the complainant’s full account was before the court.
It was submitted that the court should accept Tara’s evidence that no such comment was ever made in her presence by the accused, nor had she responded in the way as claimed by HET.
It was submitted that, notwithstanding the marital relationship between Tara and the accused, her evidence was not presented in a way to suggest that it was tailored to assist her husband’s case. For example, Tara had readily acknowledged that she went to bed prior to the accused on the night of the alleged offending, in circumstances where she could simply have denied that, in order to support her husband.
As such, it was submitted there was simply no reason not to accept Tara’s evidence on the issue as to whether the accused made the comment and if Tara’s evidence was accepted on that issue, that must then cause the court to have a reasonable doubt as to HET’s credibility and reliability generally and specifically, as to whether the alleged offending had occurred.
Counsel for the accused submitted further that the accused’s denial to police ought to be accepted, or at the very least cause the court to have a reasonable doubt as to the accused’s guilt.
She noted that the accused had readily acknowledged that during the evening, prior to the alleged offending, he had drawn breasts during a drawing game, thus demonstrating his preparedness to be completely truthful, even though the answer may not have been in his best interests. Rather than simply giving a bare denial of the offending during the record of interview, the accused had provided a ‘warts and all’ account, thus demonstrating his truthfulness.
It was submitted that aspects of the accused’s evidence were supported by other evidence, specifically the evidence that he gave that CNC had attended the caravan when HET was staying at the property, that there was an annexe on the caravan, that the group had encountered a spider before bedtime and that there was no couch within the caravan, but rather two chairs.
Further, counsel for the accused submitted, that even if the evidence of both Tara and the accused was put to one side, HET’s evidence was insufficient to establish proof of the offending beyond reasonable doubt. Specifically, she raised the inherent implausibility of the offending having occurred within the confines of the caravan, without Tara becoming aware of it, or at the very least, being roused by the accused and HET leaving the caravan and annexe and then returning shortly thereafter. Counsel for the accused reminded the court of Tara’s evidence as to the size of the caravan, the fact that it was old and rickety and the sheer proximity of the blow-up mattress, upon which HET was sleeping, to the queen size bed.
She submitted that other aspects of HET’s account were inherently unlikely, namely HET’s evidence that after returning to the caravan with the accused, after seeing the spider, she fell immediately to sleep.
It was submitted that there were various inconsistencies in HET’s account about the surrounding circumstances, which should cause the court to have some doubt as to the reliability of her evidence, including her inability to remember the fact the caravan had an annexe, her failure to recall attending the cinema with Tara and the accused and her description of there being a couch in the caravan. As to the latter, while that may appear a peripheral issue, counsel for the accused noted that this formed part of the narrative surrounding the circumstances in which the accused was alleged to have made the comment about liking to see HET naked, namely HET had told Det Rochow that this had occurred when they were sitting down on the couches.
Finally, it was submitted the complaint evidence did not demonstrate consistency of conduct. TDP’s recollection was that HET had told her that during the offending, she told the accused to stop, being different from HET’s account. MAC recalled HET telling her that after the offending had occurred, she felt uncomfortable, so she asked to go inside to see the accused’s mother, whereas HET’s recollection was that she simply got up, to go inside, and the accused followed her.
It was submitted that in these circumstances the court could not be satisfied beyond reasonable doubt of the accused’s guilt and that it must return a verdict of not guilty.
Observations and Findings
This was a short trial, with only limited evidence presented.
HET, her mother and stepfather all gave evidence that HET stayed only one night in the caravan. Tara’s evidence and what the accused told police, contradicted this. They were adamant HET stayed for two nights.
HET said that Tara had to work the next day, that is, the day after the offending. Tara said she had the weekend off work, and although she worked on the Monday, she was home when HET was picked up, at the end of her stay with them.
Whether HET stayed one or two nights was an important fact to be determined in the overall context of the allegations. If HET stayed two nights, and the offence was committed on the first night, an immediate question comes to mind – why would HET stay the second night, if the offending had occurred? Both Tara and the accused maintained that HET called CNC to come to the caravan on the first night, prior to the offending, and he had done so. HET must therefore have known she could call CNC to come to collect her on day two, and thus avoid spending another night in the caravan with the accused.
Of course, it is possible that HET stayed for two nights, and the offending occurred on the second night. However, such a finding was inconsistent with HET’s evidence.
HET gave evidence about a picture book of her stay having been created by Tara. The picture book was not in evidence. Had that book been in evidence it may have shed some light on the type of activities undertaken during the stay and assisted the court in determining how long HET stayed.
One of the criticisms directed towards HET’s evidence was that she was mistaken in her recollection of whether there was a couch in the caravan. The size of the caravan, and its configuration in terms of furniture, were important considerations as to the alleged opportunity for the offending to have occurred, as was the nature of the caravan door and any adjacent annexe and annexe door.
There were no photographs of the caravan in evidence. There may have been photographs of the caravan (and its surroundings) in that picture book, or, alternatively in the picture book Tara made for TDP after her stay in that caravan.
Although there was some delay in the offending being reported to police, Tara was employed by Bunnings. One might expect that Bunnings would maintain records to confirm precisely what hours were worked by Tara during the relevant period. If such records exist, they were not in evidence. If Tara was, in fact, working on what would have been the second day of Tara’s stay, that would have supported HET’s recollection generally.
The accused told police that during HET’s stay, they had gone to see a movie at Mt Barker Cinemas, and even nominated what movie they saw. It is possible that had that line of enquiry been pursued, information could have been obtained either to support or refute that claim, being relevant to whether HET did in fact stay one or two nights.
There was no explanation proffered as to why the accused’s mother was not called to give evidence. She may have recalled how many nights HET stayed at the property.

Of course, the court can only determine this matter on the evidence presented.
I cannot be satisfied that either MAC or CNC have an accurate recollection of the circumstances surrounding HET’s stay. The evidence they gave was very limited – for example MAC had no recollection how HET got to the caravan, or how she got home. CNC could not say when HET had stayed at the caravan, how she got there, or how she got home. This may well be explained by the fact that HET’s visit occurred in such close proximity to the birth of their youngest child.
However, in these circumstances, the evidence given by both MAC and CNC was of limited assistance, particularly in terms of the contentious issue as to whether HET stayed at the caravan in January 2018, for one or two nights, but also in terms of considering whether CNC came to the caravan during HET’s stay, or on an earlier occasion.
HET presented as a straight-forward and honest witness who did not appear to be embellishing any aspect of her evidence. Her account of the alleged offending has remained consistent throughout. The way in which she described the offending to Det Rochow and her demeanour when doing so, was consistent with her describing events that she believed had actually occurred to her.
Further, I am satisfied that the circumstances in which HET made her complaint of the offending to TDP support her credibility insofar as they demonstrate consistency of conduct on her part.
Although there was some confusion in what TDP told Det Rochow about the timing of that conversation, I am satisfied, and find that conversation occurred shortly after TDP had herself returned from staying overnight at the caravan, being only a short period of time after the alleged offending. This is clear from the evidence elicited from TDP on further examination, and in cross-examination, which evidence I accept.
The fact HET first disclosed the alleged offending to TDP at this time is precisely the type of occasion when one may expect the complaint to have been made and fits with HET being concerned to ascertain whether anything untoward had happened to her younger cousin during her (later) visit.
There were some minor differences in HET’s account of the offending and TDP’s recollection of what HET told her. However, I am satisfied that those inconsistencies can be explained by the witnesses’ relatively young age at the time this conversation occurred and the period of time which elapsed between that conversation and when they both gave their evidence. I am satisfied this conversation occurred either in late January 2018 or February 2018.
Similarly, the circumstances in which HET elaborated her complaint to her mother, in my view demonstrates some consistency of conduct, when regard is had to MAC’s recollection of what HET told her at that time and the circumstances in which that occurred, namely when members of the family, including TDP, were watching a programme highlighting child sexual abuse.
Further, I am satisfied that notwithstanding HET has described brazen offending, there was the potential opportunity for the accused to offend in the manner she alleges. As observed by Doyle CJ in R v Corrigan[116]:
[116] (1998) 74 SASR 545 at 468.
… it is unfortunate fact that it is not uncommon for sexual offences involving children and young people to be committed in circumstances in which a dispassionate observer would think an attempt to commit the offence would be unlikely because of the risk of detection.
I am mindful of that HET was only nine years of age at the time of the alleged offending. While she said she only stayed for one night, on any interpretation of the evidence, she has maintained a fairly detailed recollection of the caravan, perhaps being more consistent with that stay being longer than one night. Further, the language she used when telling Det Rochow, for the first time, what had happened to her, namely, ‘… the first night I stayed …’ is, potentially, consistent with the stay being for more than one night.
I have carefully considered Tara’s evidence and the accused’s presentation, both at the time of his arrest and during the record of interview.
While the accused presented as somewhat of a ‘character’, he appeared genuinely surprised by the fact of the allegations. He did not present as being someone who had something to hide. He made a number of admissions that were adverse to his interests, having regard to the nature of the allegations made against him.
There were aspects of Tara’s evidence which could have been designed to support the accused, namely her insistence both that she was not wearing her eye mask when she went to sleep on the first night of HET’s visit and that the offending (and what occurred thereafter) simply could not have occurred because she was a very light sleeper, and she did not hear or see it (or the aftermath) occur.
Further, Tara’s evidence about the spider, namely that she had pointed out the spider to HET, so that she would avoid it, is unusual in the sense that what she has described is innocuous, and detail one may not expect Tara to have retained from the occasion. It is also at odds with what the accused told the police about this, namely that HET had walked straight through the spider, rather than avoiding it, when she had been walking between the caravan and the house to get snacks during the night.
However, having carefully assessed Tara’s demeanour during her evidence and her reactions during the accused’s record of interview with police, I am satisfied that she is telling the truth on several critical issues, namely the length of HET’s stay, and her recollection of hearing and seeing nothing untoward on the night of the alleged offending.
Tara’s evidence that HET stayed two nights was consistent with what the accused told the police. Having carefully considered that interview and how the accused’s version of events unfolded, I am satisfied that the accused’s statement that HET had stayed for two nights, was unprompted and his genuine recollection.
After carefully considering all the evidence, I accept Tara’s evidence, consistent with what the accused told the police, namely that HET stayed at the caravan for two nights in January 2018.
I further accept Tara’s evidence, consistent with what the accused told the police (and, in certain but not all respects, consistent with CNC’s recollection) that CNC attended at the caravan late on the first night because HET was unsettled and that he spoke briefly with HET but left alone shortly thereafter.
I accept Tara’s evidence that she did not see or hear anything inappropriate as between the accused and HET either on the night of the alleged offending, or at any time during HET’s visit.
Importantly, I accept Tara’s evidence that she did not hear the accused make the comment as attributed to him, namely that he would like to see HET naked, but her mother would not approve. I am satisfied Tara is telling the truth about this. The fact that Tara made up a picture book to record the visit and then sent it to HET is consistent with Tara, at least, being of the view that the visit was a success in the sense that it was something that ought to be remembered, rather than forgotten.
As outlined by counsel for the accused, the fact this comment was allegedly made, was an important part of the narrative as it provided context for the fact of the offending and it explained HET’s reaction thereafter, and in particular, why she did not alert Tara to the fact of the offending.
I also accept Tara’s evidence that she was not woken by anything during the first night of HET’s stay in the caravan.
Having made those findings, I have returned to critically assess HET’s evidence and the accused’s denial of the offending.
The caravan was very small. On any analysis of the evidence, the alleged offending occurred shortly after Tara had retired to bed.
HET was a young girl staying in unfamiliar surroundings. The accused did not know HET well. I accept Tara’s evidence that she had been unsettled earlier in the evening, even calling her stepfather to come to the caravan. Although speculation as to how, a young girl, in HET’s situation, may be expected to react in the circumstances she has described is fraught, the fact is, the accused could not have known how HET would have reacted to the offending. If he offended in the manner as claimed, he was on the floor, lying next to HET at the time, meaning that had HET reacted by yelling out, there was an extremely high risk of the offending being detected, or, at the very least, of Tara becoming aware of the fact that he was not in bed next to her but rather lying on the floor next to HET. The fact HET had chosen before to call home when she felt uncomfortable, must have alerted the accused to the very real risk that she would do that again, either that night, after waking Tara, or the next day, thus exposing the offending.
Another aspect of HET’s evidence which troubles me is her recollection that after the offending, the accused returned with her to the caravan, lay down beside her, but that she simply fell asleep thereafter.
While, of course, it is difficult to predict how a young girl would respond in such circumstances, one would expect HET to be anxious, if not fearful, after what had occurred and concerned that something else might happen to her. Further, if HET’s recollection is accurate up until the point she and the accused returned to the caravan, it belies belief that the accused would, thereafter, lie down on the floor behind HET, for a second time. Had anything untoward occurred earlier, one would expect the accused to simply get straight into the QS bed, by way of reassurance to Tara that all was fine. Assuming a position, on the floor, for a second time, behind HET, carried with it a further, and even greater, risk of HET responding in a way that would, in fact, alert Tara to the fact he was not in her bed, and was instead, lying on the floor next to HET.
As such, I agree with the submission made by counsel for the accused that HET’s evidence that after she and the accused returned to the caravan, the accused lay back down on the floor, next to her and she fell asleep, is implausible, if, in fact the offending had occurred just a short time earlier.
It is possible HET is mistaken as to her recollection as to what occurred after she and the accused returned to the caravan. However, if she is so mistaken, this does cause me to have some doubt as to the overall reliability of her evidence.
There are therefore important aspects of HET’s account as to what occurred both before and after the alleged offending, which I cannot accept.
Further, upon considering the accused’s record of interview, my initial and continuing impression was that he was telling the truth when he denied the offending.
As such, despite there being some compelling aspects of HET’s account, I cannot be satisfied, beyond reasonable doubt, that the alleged offending occurred.
Conclusion
I find the accused not guilty.