R v Murfitt - [2022] SADC 90

District Court of South Australia
(Criminal)
R v MURFITT
[2022] SADC 90
Reasons for the Verdicts of her Honour Judge Davison
10 August 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
The accused is charged with two counts of indecent assault of a girl aged between 8-12 years. The first charge related to a game of 'dak chasey' and the second charge related to an event in the complainant's family swimming pool.
A complaint was made over 30 years later after an enquiry was made by the accused's ex-wife.
Verdicts: Guilty on both counts.
Criminal Law Consolidation Act 1935 (SA) s 56; Juries Act 1927 (SA) s 7(1)(a); Evidence Act 1929 (SA) ss 34M, 34P, referred to.
R v MJJ; R v CJN (2013) 117 SASR 81, applied.

R v MURFITT
[2022] SADC 90
Criminal
Introduction

The accused is charged with two counts of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (hereinafter the ‘Act’). It is alleged that count 1 occurred between 1989 and 1992, when the complainant was between 8 to 10 years of age, and that count 2 occurred in February 1994 when the complainant was 12 years of age. It is alleged that the accused and his ex-partner were friends with the complainant’s parents and that the accused would look after the complainant and her brother during the school holidays.
The prosecution rely upon evidence of the complainant, the complainant’s mother and the accused’s ex-partner. The accused did not give or call evidence.
The accused elected for trial by judge alone.[1] This application was granted and the trial proceeded before me without a jury.
[1] Juries Act 1927 (SA) s 7(1)(a).
Charges
First Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Gary Dean Murfitt between the 15th day of July 1989 and the 14th day of July 1992 at Mount Barker, indecently assaulted [NDE], a person under the age of 12 years, by exposing her genitals.
Second Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
Gary Dean Murfitt between the 1^st day of February 1994 and the 28^th day of February 1994 at Hackham West, indecently assaulted [NDE] by touching her breasts.
Elements of the Charged Offences
Indecent Assault
There are two elements of the offence of indecent assault. Each count must be proven beyond reasonable doubt:
·that the accused assaulted NDE. An assault is the intentional and unlawful application of force to another person. That application of force need not be great. Any touching or handling would be enough. The application of force need not cause any injury. It must be intentional, so purely unintended or accidental touching would not be sufficient;
·the assault must be accompanied by, or occur in circumstances of, indecency. It is a matter for me to consider whether the proven conduct of the accused is indecent by reference to reasonable contemporary standards. I must be satisfied that the conduct had a sexual connotation.
In addition to this, for the higher penalty provision to apply for count 1, I must be satisfied beyond reasonable doubt that NDE was under the age of 12 at the time of the offence.
Legal Directions
I give myself the following directions.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused is presumed innocent of the charges unless and until guilt has been proved beyond reasonable doubt.
The standard of proof is beyond reasonable doubt. The accused cannot be found guilty of the offence unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt. In these reasons, if I use the words ‘proved’, ‘established’, or ‘satisfied’, in each case I mean to an extent which excludes a reasonable doubt.
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence given by each witness. I can reject or accept all or part of a witness’ evidence.
The accused did not give evidence. That was his right. I cannot and do not draw any adverse inference against him or the case he presents for declining to give evidence.
I must bring an open and unprejudiced mind in this case. I must make my decision without sympathy or prejudice and not be influenced by public opinion in relation to this matter.
The accused is charged with two counts. These counts must be considered separately and only in relation to the evidence that is admissible in respect of each.
Significant Forensic Disadvantage
There has been a period of about thirty years between the alleged offending and the trial. This delay has resulted in a significant forensic disadvantage to the accused. There have been difficulties for him challenging and responding to the allegations. These difficulties include the ability to test the evidence in a meaningful way at a time when he, the complainant and possibly others had a memory in relation to the events surrounding the alleged offending and the circumstances generally. It also includes the unavailability of witnesses due to death or for other reasons. During the intervening years one of the witnesses has suffered from a number of medical conditions that have affected her memory. It is clear that the memories of all the prosecution witnesses have been impaired by the passage of time.
If the matter had been reported earlier, there may have been evidence of a forensic nature that could have been obtained that may have assisted the accused in responding to the allegations.
I have taken into account the forensic disadvantage to the accused when scrutinising the evidence for the prosecution.
Discreditable Conduct
The prosecution has filed a notice pursuant to s 34P of the Evidence Act 1929 (SA) that reads in part:
Particulars of evidence of conduct:
1. In respect of the first item of discreditable conduct:
A1. The nature of the discreditable conduct is: charged acts of sexual misconduct.
A2. The witness from whom the evidence is to be led, whether in examination-in-chief or in cross‑examination, is [NDE].
A3. The use of the evidence said to be permissible under section 34P(2)(b) in respect of counts 1 and 2: is to demonstrate that you had a sexual interest in the complainant and a tendency to act in furtherance of that sexual interest notwithstanding other persons were in the vicinity and/or there was a risk of detection and therefore making it more likely the offences occurred as alleged.
It is convenient to set out the s 34P of the Evidence Act 1929 (SA) at this stage.
34P—Evidence of discreditable conduct
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)is inadmissible for that purpose (impermissible use); and
(c)subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and
(b)in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
It is important to note that although the prosecution led other evidence from which it was said a sexual interest of the accused in the complainant could have been inferred, this conduct was not the subject of the notice. It was an uncharged act.
Section 34P draws a distinction between discreditable conduct evidence which relies on a particular propensity or disposition of the defendant and discreditable conduct evidence which otherwise has probative value. In order to rely upon a particular propensity or disposition of the accused, as circumstantial evidence of fact in issue, it must pass a higher threshold test for admissibility than discreditable conduct evidence which otherwise has probative value but does not rely on a particular propensity or disposition of the defendant.
Discreditable conduct evidence which relies upon a particular propensity or a disposition must possess strong probative value having regard to the particular issue or issues arising at trial. It must be more than a mere or general propensity and it must demonstrate a particular propensity or disposition which is strongly probative of the offence charged.
The question of the assessment of the probative value of evidence of discreditable conduct was discussed by Kourakis CJ in R v MJJ; R v CJN[2] in the following terms:
The impermissible use identified in s 34P(1) of the Evidence Act 1929 (SA) is the drawing of an inference of guilt from the fact that the accused has engaged in other conduct which has no relevant connection to the offence other than to share the epithet discreditable. Evidence of discreditable conduct of that kind may, admittedly with some imprecision, be described as evidence of a mere, or general, propensity. Section 34P(2)(b) expressly provides for the admission of discreditable conduct evidence which shows a particular propensity or disposition of the defendant. The particular propensity or disposition must be strongly probative of the offence charged, and outweigh its prejudicial effect. Discreditable conduct which has a permissible use, other than by way of demonstrating a particular propensity, need only have a probative value, whether weak, moderate or strong, which substantially outweighs its prejudicial effect.
At the core of the assessment of the probative value of discreditable conduct evidence are two analytical steps. The first is to identify the particular fact which is in issue. The second is to consider how, if at all, the discreditable conduct evidence circumstantially increases, as a matter of human experience, the probability of the existence of that fact. Resorting to generalities such as ‘context’, ‘background’ and ‘underlying unity’ will seldom illuminate the analysis.
[2] R v MJJ; R v CJN (2013) 117 SASR 81.
It is clearly a necessity to consider these issues having regard to the particular issues arising at trial.
There was a notice challenging the conduct, however no argument was advanced in relation to it at trial by the defence.
In a case in which the complainant’s evidence of the conduct alleged by the accused is in issue, evidence of a tendency to behave in such a way may be relevant to that fact in issue.
In this case the threshold question is whether the evidence is strongly probative and if so, does that substantially outweigh the prejudicial effect. To analyse this aspect, regard must be had to the nature of the evidence. The evidence if accepted on count 1 may disclose a sexual interest that the accused had in respect of the complainant. This is evident from the fact that he, an adult, engaged in games with the complainant and her young brother designed to expose their genital regions for a prolonged period whilst playing a game called ‘dak chasey’. The game involved a participant completely removing the clothing from the lower half of their body putting it to one side and continuing to run around the house either chasing or being chased. If proven, then this behaviour could be used as a part of the circumstantial case to prove a sexual interest by the accused in particular where there are other people present. In this case it may be used as evidence going to proof as to the aspect of indecent assault on count 2 that relates to necessity for the act to have occurred in circumstances of indecency.
The evidence cannot be used to reason impermissibly that the accused is the type of person who would commit such an offence.
Initial Complaint – s 34M
Evidence was given by the complainant and MB that may amount to evidence of initial complaint. This evidence may be used to show how the complaint first came to light. It may also be used to demonstrate consistency of conduct on the part of the complainant. It cannot be used to prove the truth of the assertion made by the complainant. I can also bear in mind that there may be varied reasons why the complaint was made to MB at the time it was but otherwise it is for me determine the significance, if any, of the evidence in the circumstances of this case.
Motive To Lie
A motive to lie was suggested to the complainant, that was a financial one. This emanated from the Facebook conversation where it had been suggested to her that she may be eligible for compensation as a victim of crime. I remind myself that even if I reject the suggested motives to lie, it does not strengthen the prosecution case. The accused does not have to prove anything at all. It was also suggested to the complainant that her account had been influenced by the suggestions made by MB. Once again, the defence do not need to prove this. It is for the prosecution to satisfy me that the complainant has given an honest and reliable account.
Witness Not Called
Count 1 is alleged to have occurred in the presence of the complainant’s brother. He is two years younger than her, having been born in 1983. He was therefore between 5 and 8 years at the time of the alleged conduct. Evidence was given that he did not wish to co-operate with the investigation. I must not speculate as to what he may have said if called to give evidence. I do however note that he was a very young child at the time of the alleged events of ‘dak chasey’.
Prosecution Evidence
Complainant’s Evidence
NDE gave evidence that she was born 15 July 1981. Her mother is DSM, now aged 65 and her father, MBM passed away on 7 June 2012. She has a brother, AMM, born 8 November 1983. The family moved from Albert Park to Hackham West, which is now known as Huntfield Heights, when NDE was a child. Her parents built the house in 1988. The family moved in during 1989. Her father worked for an electrical company, GEC or GE Electrical. At that company he met the accused’s partner, MB. They formed a friendship. The accused, MB and the complainant’s parents socialised on a number of occasions at barbecues and work social events. The complainant does not remember if the accused was working at that time but recalls him driving water delivery trucks.
She gave evidence that the accused looked after her and her brother whilst her parents were working during the school holidays. The accused also helped out when her mother was on night shift. Her mother had commenced working at Actil doing night shift from 11:00pm to 7:00am.
The complainant recalled that she played fun games with the accused. These games include chasey and hide-and-seek. One of the games they played was called ‘dak chasey’. This was a game where you were chased, and if you were caught, you had your pants taken down. The complainant recalls playing this game during the school holidays when she was 8 or 9 years old. She said:
When we were caught we had our pants pulled down and we still ran around to try and catch the other people that were still there, like the three of us. It was always myself and my brother that had our pants down. This one particular day I recall that Gary’s pants started coming down and I stopped, I didn’t want to play, I didn’t like it, it didn’t feel right so I stopped and tried to get our pants back on.[3]
[3] TT13.
Her pants and underwear were pulled down so that she was fully exposed. The accused was the one who pulled both her and her brother’s pants down on this occasion. She gave evidence that soon after, both children caught the accused and started pulling his pants down. His pants came down so that she could see the top of the accused’s bottom. She stopped her brother taking the pants down any further because she felt sick and uncomfortable being in that situation. She gave evidence that it stood out to her that it was not right to be playing games like this, as they had never played a game similar to this with anyone else. She does not now recall how many times they played this game. She realised that it was not right on that occasion because it was the only time that the accused’s pants started coming down. They never played the game again.
The complainant said that when she was playing the game, she was wearing a yellow knitted jumper and denim jeans. It was the winter school holidays and her nanna had knitted this jumper that she wore with a white skivvy underneath because it was itchy. She wore the jumper from the age of 8 and grew out of it at about the age of 11. Exhibit P2 was tendered showing her wearing the jumper.
The complainant gave evidence that after she stopped her brother pulling the accused’s pants down, she went to put her own pants back on. Her brother and the accused told her to stop and keep playing. The accused said to her ‘It’s just fun, don’t be spoilsport’. After the game, she did not want to be apart from her brother, so she kept him by her side.
The complainant recalled a time the accused took her, her cousin and her brother to the beach during the summer holidays. She said that she and her cousin were excited because they were travelling there in the old ambulance. She described the accused owning an old ambulance and driving it around. She gave evidence that there were sandbars in the water and her cousin saw a fin and panicked thinking it was a shark. They later realised it was a dolphin. They then got back into the water and played around.
When they were preparing to leave, the three children got into the back of the ambulance to get changed. They had to get the sand off. They sat on the end of the ambulance and brushed their feet off. They started drying themselves with towels whilst standing up in the back of the ambulance. The towels were quite long, and it was difficult to cover themselves whilst they were getting changed. The complainant felt very uncomfortable as the accused was watching the children get changed. The complainant said she was about 10 years old at the time and her cousin is three months older. She usually wore a one‑piece bather but is unsure whether she wore the bathers on her way home.
Later in re‑examination, she gave evidence that having refreshed her memory from the statement that she gave, she took her bathers off in the rear of the ambulance and got dressed.
The complainant gave evidence that shortly after they moved into the family home at Huntfield Heights, they put in a swimming pool. Her father’s 40^th birthday occurred in February 1994. She was 12 years old at that time. There was a party for her father’s birthday on a Saturday. It commenced during the day and went into the night.
At some stage, she was playing a game in the pool with her cousins and other children. They called the game ‘marks up’. In this game, someone was in the shallow end and would throw the ball. Another child would jump in from the deep end and try to mark it. She was in the shallow end throwing the ball, when the accused got into the pool. The children did not want to include him in the game. The accused came up behind her and slid his hands onto the front of her breasts and squeezed his hands for a couple of seconds. He grabbed her when she was under the water, as she was bending down to try to push up as high as she could. Her breasts were under the water at the time he squeezed them.[4] She then turned around and hit him in the head. He was bent down at that stage. Her father saw her hit the accused as he was walking along the driveway to show someone out of the party. He looked at her as if he was about to tell her off, but the accused laughed it off and said that they were just mucking around. Her father then kept walking and did not say anything. The complainant said ‘Don’t touch me again’ to the accused who then got out of the pool. There was no further interaction between her and the accused that night. She did not see the accused again.
[4] TT21.

The occasions of dak chasey and in the pool are the only occasions she can recall where the accused touched her inappropriately or had done anything inappropriate in her presence.
In May 2020, her brother gave her the accused’s ex-partner’s phone number. The complainant contacted her. MB asked her if there had been any altercations with the accused. With that, the complainant told her about the dak chasey game and that he touched her on the breasts at her father’s birthday party. This was the first time that the complainant had mentioned these events to anyone.
The complainant was cross-examined. She cannot remember the accused’s house other than it being on a bigger block and away from other houses. This is the only one house that she can recall the accused living in. In respect of the ambulance, she said it was an ivory colour, and one of the ‘very square’ old ambulances. She recalled she and her brother used to play in the back of the ambulance pretending to be doctors or paramedics. There were no seats at the rear of the ambulance. The front of the ambulance had two bucket seats and access could be gained to the back of the ambulance by going between the seats. She was shown a photograph, Exhibit P5, and said that that looked like the ambulance. There was no suggestion it was the same ambulance, but it was a similar one. The complainant said that she knew the accused had a different type of vehicle before the ambulance but cannot remember what it was. She recalls him driving a Piccadilly Springs truck and said there were times when her brother went in the water truck with him.
She gave evidence that she went to Hackham South Primary School that was over the road from her home.
From the age of about 11, she and her brother were left alone at home during the school holidays. She would sometimes look after her brother while her mother was sleeping or they were go to a friend’s house. She recalls meeting the accused’s ex-partner at her father’s work on her 10^th birthday in July 1991. However, this was not the first time she had met her.
During her cross-examination in relation to the game of dak chasey, the complainant said she now thought she was about 10 when this happened. She recalled her grandmother died in 1990 and she thought dak chasey happened after that. She admitted that she was wrong when she initially said she was 8 or 9 years old at the time. She said they played dak chasey at the accused’s house but only inside and only when the accused and her brother were present. She also said she recalls wearing jeans on the day, and the accused was also wearing jeans. When challenged as to how his jeans could have been pulled down, she said no one undid any buttons on his jeans. The complainant conceded she did not tell the police she was wearing jeans, merely telling them she was wearing pants.
The complainant was cross-examined about the accused’s dogs. It was put to her that if people were running around in the house, the dogs would chase them. She denied this. It was put to her that the vehicle that was used for the Moana Beach trip could have been a station wagon. She said the ambulance was the only vehicle she remembered the accused having. It was put to her that the accused did not get the ambulance until she was older. She denied this. She said she recalled going to Moana Beach in the summer holidays when she was 10 years old at the end of 1991 or early 1992. She cannot remember which month it was, but said it was after her grandmother had died.
She was cross-examined in relation to the incident in the pool. She agreed that there were numerous children at the swimming pool at the time. Most were the same age as her. Some may have been a little older. She said all the children at the party were involved in the pool game, and most of them were waiting their turn. She does not recall who was jumping in to catch the ball at the time of the incident. She said that the incident occurred at about dusk but there was still some sunshine and there were lights around the pool area but they were not on. She agreed that she may not have told the police that she was the one holding or throwing the ball but told the police that she was playing a game that involved throwing and catching a ball.
She confirmed that she wriggled out of the accused’s grip after he touched her and punched him to the left side of his head with her right fist. She gave evidence that it probably did not look like a normal punch because she was a kid and was just in the water splashing around.[5] She said that the other kids made comments that she was not very good at throwing the ball but said nothing about the incident. She said she had not said anything to anyone. She stayed in the pool after the incident and continued playing. She does not recall whether the accused came back into the pool again that night or at what point he left the party. The complainant rejected the suggestion that the accused put his arms around her waist to boost her up.
[5] TT60.
In respect of her contact with MB, the accused’s ex-partner, she said that she had no contact with her, after the pool party, until May 2020 when they had a phone conversation. In that phone conversation, MB said that she apologised for asking but wanted to know whether the accused was ever inappropriate towards her. She said MB asked her if she had any altercations with him and whether anything ever happened when the accused was alone with her and her brother. The complainant does not recall the exact words that were used. She said during the conversation, MB encouraged her to go to the police and told her which police officer to speak to about the matter.
The complainant denied that she made the complaint or was giving evidence for money. She said she wanted to do the right thing. She said since the initial conversation, she and MB have kept in touch irregularly through Facebook Messenger. The complainant accepted that MB brought up the topic of victim of crime compensation. She did not know what it was. She denied that she had been influenced in relation to her allegations against the accused by what MB had said to her.
In re-examination, she gave evidence that she did not tell her father about the incident because she was scared that her father would kill the accused as he was very protective of his children.
The Facebook Messages
During re-examination Ms Davey wanted to show the complainant a document. Ms Barnes objected initially on the basis that the prosecution had agreed not to lead the evidence in the document. As it was trial by judge alone, I was not shown the document. It was submitted that the evidence had become admissible by the conduct of the defence in cross-examination. That topic was the influence that MB had exerted over the complainant and the capacity of what MB had told the complainant to influence her account. This was an important aspect of the defence case.
Ms Barnes sought instructions and withdrew her objection. The complainant identified the document. The messages were tendered as Exhibit P6. The complainant was asked questions about the content. These questions were in relation to the topic of compensation. They were admissible to put in context the cross-examination on this topic as to how the topic was raised and by whom. It was not admissible for a testimonial purpose. Rather, it was admissible in respect of the complainant’s state of mind and went to the question of motive. I have had regard to it for that purpose.
This document was also used by the defence to found a submission of the animosity MB had for the accused and as the foundation for the influence that MB may have had over the account given by the complainant. I have used Exhibit P6 for those purposes. Exhibit P6 also has messages that are prejudicial to the accused including opinion evidence and material in respect of his character. I have not had regard to the exhibit for those purposes. I have not drawn any adverse inference against the accused based on any of the material in the messages.
Assessment of the Complainant
The complainant gave her evidence in a very straightforward manner. She was very consistent in relation to her allegations. She did not seek to embellish her allegations in any way in her evidence. She was, however, uncertain about the ages of both herself and her brother at various times. Her inconsistencies in relation to the police statement related to the type of pants she was wearing, and not telling the police that she was the one throwing the ball in the ‘marks up’ game. I do not regard these aspects of the evidence as important. I do not regard the inconsistencies as being central to the issues in the trial when considered either alone or in combination with the other evidence given in this matter. I consider her to have been an honest witness.
MB’s Evidence
The accused’s ex-partner, MB was called to give evidence. She had brain surgery to remove a tumour in January 2021. She was in hospital for about a week after the operation. She then had a fall and spent a further two-and-a-half months in the Hampstead Rehabilitation Centre. As a consequence, she has had to learn life skills including how to eat, walk and talk. She suffered from mental health issues after the brain injury and is on antidepressants for PTSD, severe anxiety and depression. She gave evidence that the surgery and the fall have not had a major impact upon her memory.
She is 56 years old. She married the accused on 6 February 1988 when they were living in Daw Park. They moved to Mount Barker in 1989. She worked for a company called GEC Electrical from 1989‑1993. She met the complainant’s father who worked at the company. They became friendly and developed a friendship between the couples.
The first social occasion between them was a barbecue at the complainant’s home in 1989. She knew the complainant and her brother. At social gatherings, the accused played chasey with the children.[6] MB gave evidence that they caught up with the complainant’s parents just about every weekend, mainly having barbecues at their home but occasionally having barbecues at the home she shared with the accused. She was aware that the complainant’s mother worked for Actil. She gave evidence that the accused worked on-and-off. She said that during this period he worked for a roller door company. She said there was a time where the accused was not working. He started to babysit the complainant and her brother. He would take them to and from school and take them on outings, including to the beach. When she was interstate for work, the children stayed for weekends at their house. She was not present for these events, but said the accused told her about them.
[6] TT96.
The last occasion she and the accused saw the complainant’s family was at the complainant’s father’s 40^th birthday. It was the first pool party at their house. They did not stay very long, as they got there late in the afternoon and left very early in the evening. She gave evidence the accused wanted to leave the party saying something had happened. He said ‘We’ve got to go, we’ve got to go’.[7] She did not know why they had to leave the party that time. She gave evidence that she and the accused separated just after this party but later got back together. She said they went to the complainant’s home for drinks with her parents on one more occasion, a couple of months after the 40^th birthday party.
[7] TT96.
MB gave evidence that at the time they started to see the complainant’s family in 1989, the accused was driving a company car. He then bought an old Ford 100 that was originally an ambulance. That vehicle had a front bench seat. The back of the vehicle was gutted. He had this car for a few years.[8] She said these were the only vehicles the accused had whilst they were sociable with the complainant’s family.
[8] TT97.
MB gave evidence that she looked on Facebook to locate the complainant in May 2020. She found the complainant’s brother and messaged him. She obtained the complainant’s phone number from her brother. She said she had a phone conversation with the complainant who told her the accused used to play dak chasey with her and her brother and whoever got caught had to pull their pants down. She said the complainant went on to tell her that it got to a stage where she knew it was wrong when the accused pulled his pants down. She said the complainant also said the accused approached her in the swimming pool and ‘…touched her boobs and she whacked him in the head’.[9] This incident happened at the 40^th birthday party that she was referring to. She said the complainant said her father saw it happen and she thought he would get cross with her, so she left the pool. Since that time, she has kept in contact with the complainant via Facebook Messenger on and off.
[9] TT100.
MB was cross-examined about the timeline of moving to Mount Barker. She was very confused about the chronology of events. She agreed that the accused was renting a home at Daw Park and she moved in with him after getting married in 1988. They then moved to St Morris for several months, and then to her grandparents’ house at Enfield. MB said she started to work at the electrical company whilst they were living in Enfield. They moved to Mount Barker in about 1991. She described the premises as having a gravel driveway, some gardening had been done and the accused had put up some chicken wire fencing to keep the dogs in. She said when she and the accused separated just after the pool party, she moved in with some friends in Milang. Her parents had already moved in next door at Mount Barker. She then secretly moved to her parents’ house next door and then stayed with a friend down south for a short time. She gave evidence that she and the accused got back together and bought a house in Nairne which became their family home. Their eldest child was born in October 1996.
She was cross-examined about the places that the accused had worked. She said when he worked for the roller door company, he had a company car that was a Commodore. He got sacked from this job. She thought that when they got the mortgage for the property in Mount Barker, the accused was still working for the roller door company. She denied the accused ever worked for a company called Jambro but recalled him briefly working for company called Safety Clean. She said that it was after they moved to Nairne that he started working as a water delivery person for Piccadilly Springs. She said she never personally saw the accused take the children to and from school, but he quite openly told her that he did when she asked him what he had done during the day. She said the accused insisted on taking the children and he also looked after them after school.
She gave evidence about an occasion when the complainant’s family came to their house at Mount Barker for a barbecue. She said it was a few weeks after starting her job at the electrical company. She said that she and the accused saw the complainant’s family just about every weekend for a period of 4‑5 months.
She gave evidence that she recalled the accused buying the ambulance after they moved to Mount Barker. The plan was to put a mattress in the back for trips away. She agreed that the ambulance shown in Exhibit D5 looked like the ambulance the accused owned, as it was the same colour and the same style, but it was not a photo of the actual vehicle. She said the accused owned the ambulance for about 3 or 4 years and then sold it around the time she became pregnant with their first child, as they needed a family car.
She was cross-examined about the chihuahuas called Gizmo and Gadget. She said the dogs did not chase people, and she did not remember the complainant and her brother ever running around with the dogs playing chasey.
She said that she had no communication with the complainant after the pool party up until the time of the phone conversation in 2020. MB was cross-examined about a statement she gave to the police in May 2022. She said that despite not remembering the phone call in that statement, her memory of it now is pretty good because there are some things that you do not forget. She said she contacted the complainant with concerns based on other things she learnt about the accused. She denied she was trying to get the accused into trouble. During the phone call, she asked the complainant whether she had ever been touched by the accused. She agreed she raised the topic of the accused touching the complainant inappropriately and suggested that something had happened between the accused and the complainant at their house. She said this suggestion was about a completely separate incident. She explained it was when she had walked in the front door of their home and saw the complainant, who was a little girl, on the carpet with the accused. The complainant was giggling and laughing and told MB that the accused had pulled her top down and tickled her breasts.
She said that the complainant told her the accused used to chase her and her brother around playing dak chasey. Regarding the swimming pool incident, she said the complainant said that the accused got too close to her and put his arms around her waist and pulled her towards him and that she punched him in the head. She does not recall anything specific about the accused touching her breasts in the swimming pool during that phone call.
MB gave evidence that she and the accused separated in 2002. She now dislikes the accused.
Assessment of MB
MB gave evidence in a halting manner. She was very uncertain about dates and occasions. Her evidence was unsatisfactory in relation to the chronology and timeframes in which events were said to have occurred. I was left with the impression that her memory is defective for one reason or another.
MB clearly has little regard for the accused.
DSM’s Evidence
The complainant’s mother, DSM, was called. She confirmed the dates of birth of her children. She was shown Exhibit P2, a photograph of the complainant and her brother. She said that their jumpers were knitted by her mother‑in‑law. This nanna passed away in 2013 on Mother’s Day. Her own mother had lived with them but passed away about 32 years ago in 1990. She said Exhibit P2 showed the complainant when she was about 8 years of age. Exhibit P4 was a photo of the complainant’s brother when he was 6, 7 or 8 years of age.
DSM and her husband built the house at Hackham West and moved there when the complainant’s brother was 5 or 6 years old. She worked for Foodland for a short time before going back to work at Actil. She initially did afternoon shifts and then changed to night shifts. Afternoon shifts were 3:00pm to 11:00pm and night shifts were 11:00pm to 7:00am. Her husband was working full-time for the electrical company for a few years.
She recalled becoming friends with MB. She met MB and the accused at work and other social events. She recalled going to their house for barbecues on two or three occasions. She recalled their house being in the hills. When they went to the accused’s home, the complainant would have been 8 or 9 years old and her brother would have been 6 or 7 years old. She said the accused had picked up both children from their address a couple of times when she was on night shift. She recalled him driving a water cooler truck and the children going in that truck sometimes. She also recalled him working for Total Tools. He had a big white delivery van for the job. She said he picked up the children during school holidays over the course of one year and it happened three or four times. She was sleeping during those days due to her work hours. This was arranged by the accused contacting her and saying that he was coming down and asked whether the kids wanted to come for a ride. She could not recall any other times when the accused had contact with her children.
DSM gave evidence that there was a 40^th birthday party for her husband. The pool had been put in and it was an attraction. About 50 or 60 people came to the party. She does not recall if she saw MB and the accused there. She was shown a photo of the pool[10] and identified it. She said it looked the same as in the photos when it was first put in, the only difference being the size of the palm trees.
[10] Exhibit P3.

She was cross-examined. She said Exhibit P4 showed the complainant’s brother in his school uniform when he was about 6 or 7 years old. She said this makes her think he is younger in Exhibit P2 because he did not have the same hair style then. She confirmed that the school they attended was across the road from their house and to get there, they had to walk across a creek. She said she did not rely on anyone else, including the accused, to drive the children to and from school.
In relation to the 40^th birthday party, she said her nieces and some friends with their kids were also at the party and the kids were probably playing in the pool. She would have been out the back serving people under the pergola. She said the accused never came over to their house to look after the children after school whilst she was sleeping. She saw the accused with her children on several occasions at work and social functions but never had any concerns about the way he interacted with them. She cannot now remember the last time she saw the accused and MB. She said they did not spend every weekend together or anything regular like that.
Assessment of DSM
DSM’s memory of events the subject matter of this trial was limited. I accept that she was being honest. Much of what she was asked was about what would have been quite mundane events in her life and those of her family. She was not the central figure in the relationship between her family and the accused’s family. The friendship had been initiated between her now deceased husband and MB. It was clear that this period of her life was very busy and much of what she did was routine. She was asked about events she has had cause to recollect for many years, as a result her memory was poor.
Evidence of Detective Brevet Sergeant Alan Graham
The final prosecution witness called was Detective Brevet Sergeant Graham. He is the investigating officer. He said that he made some enquiries with the complainant’s brother but he was not willing to assist the police in relation to this matter.
In cross-examination, he confirmed that on 9 February 1993 the accused was convicted of an offence of drink driving and received a six-month licence disqualification.
Defence Case
The accused did not give or call any evidence.
Addresses
Ms Davey addressed on behalf of the prosecution. She submitted that there is no dispute that the accused looked after the complainant and her brother at times and that there was contact between him and the complainant in circumstances where he would be alone with both children. She submitted there is no dispute about how the accused came to meet the complainant and her brother and no dispute that there was social contact outside work functions, including barbecues and the 40^th birthday celebration. She also submitted that there is no dispute that the complainant’s mother was working night shifts. During the school holidays she would be asleep during the day and on more than one occasion the children were picked up by the accused and taken out for the day.
In terms of the timeline, she conceded that it is a little unclear when the complainant moved into the house at Huntfield Heights and although there is no dispute that the accused owned an old ambulance, it seems that it may have been in the early 1990s and perhaps a little later than the complainant initially estimated. It is also unclear from the evidence when the accused and MB lived at the Mount Barker residence. From the cross-examination, Ms Davey conceded it could have been from 1991 and it seems that this is the premises to which the complainant was referring.
In respect of the first count, Ms Davey submitted that the complainant gave a consistent account, that it occurred in the school holidays when the accused had access to the children and it involved playing a game on more than one occasion. It was only when the complainant got older that she realised that the game was wrong and she stopped the game. It is for that reason it stuck out in her mind. She recalled wearing her favourite yellow jumper that she gave evidence she wore between the ages of 8‑11. Ms Davey also conceded that the complainant was confused as to which of her nannas had knitted the jumper. However, the complainant recalled that her nanna passed away in 1990 and used that as her reference point. She conceded that the complainant was unsure about her ages and that it was not until she confirmed in her own mind that her nanna had already died that her evidence became clear. It was submitted that the complainant’s uncertainty in relation to her age in respect of count 1 was not fatal to an acceptance of her evidence. At all relevant times, she was under the age of 12.
Ms Davey submitted that the cross-examination in relation to not telling the police that she was wearing jeans is irrelevant and nothing turns on it. In respect of any inconsistencies as to whether she was getting dressed or not at Moana whilst the accused was watching her, Ms Davey submitted that it is not particularly significant. The complainant gave an explanation that she did not recall it at the time but refreshed her memory from the statement. It was, however, important evidence that the defendant was watching children getting dressed for no apparent reason. It is consistent with him having a sexual interest in the complainant and later acting upon that sexual interest.
In respect of count 2, Ms Davey submitted that this was an opportunistic offence grabbing the complainant from behind in the midst of a game. She submitted that as the complainant had bent down under the water it was less likely to have been detected by others as there would have been splashing around under the water. She also submitted that the fact that the complainant had the ball in her hands was the perfect opportunity for the defendant to put his hands under the water and quickly massage her breasts. She submitted that I should reject any notion that the accused was merely trying to throw her up in the air as it was clearly denied by the complainant and there was no evidence given about it. She submitted that the complainant was clear, concise and gave an unflappable version. She was honest in relation to the things she did not know.
Ms Davey submitted that I should accept the account given by the complainant although in respect of some of the finer details such as times, dates, ages and years, she was unable to be clear but in respect of the charged counts themselves, she gave a clear and concise account.
In respect of the initial complaint, Ms Davey submitted that this evidence was given by MB who contacted the complainant’s brother and made a subsequent enquiry subsequently of the complainant. The account that MB gave was consistent with what the complainant said in evidence. It can be used to show how the allegations first came to light and also judge the consistency of conduct. Although there had been a suggestion that MB had witnessed an event that she told the complainant about, this had formed no part at all in relation to the complainant’s allegations and could not have contaminated her evidence. The prosecution did not submit that the events as described by MB should be taken into account in respect of any aspect of this trial. The only reason it was before me was in respect of any issue of potential concoction or influence that MB may have had over the version given by the complainant. Similarly, the Facebook messages that were tendered were only used to explain the manner in which the complaint was elicited and how it came to light. It was submitted that there was no support for the argument that the complainant was motivated by money to make her complaint and there was no evidence that she has even applied for compensation in relation to it. It was submitted that the complainant was not the type of person who could easily be swayed by another to give a false version of events nor does it seem that MB had the personality to influence another.
It was submitted that the prosecution had proven both counts beyond reasonable doubt.
Ms Barnes addressed on behalf of the accused. It was her submission that the complainant’s account was implausible and inherently unreliable and as such lacked credibility. She submitted that the allegations were only raised by the complainant after she was contacted by MB and prompted to make a complaint by being asked, ‘Did Gary ever touch you that you remember?’.[11] It was also submitted that MB had told the complainant about the incident in which she witnessed the complainant telling her that the accused had tickled her breasts before any complaint came out in respect of the accused touching her breasts. She said that there were significant inconsistencies between what the complainant told MB and what MB told the court was the complaint.
[11] TT131, 171.
It was submitted that the evidence of the complainant had been infected by the discussions between her and MB and that what had been innocent interactions was somehow turned into ‘sinister games’, to use MB’s words.
In respect of the implausibility of the account Ms Barnes submitted that on the occasion of the pool party, there had been up to 50 or 60 people there including the complainant’s parents, multiple other adults and children including those who were around the pool. Those who were playing the game were waiting for the complainant to throw the ball, so they were in effect watching and had their attention upon her. The complainant’s father was also close by and it is inherently implausible that the accused would sexually assault her in those circumstances. Rather what is a rational inference is that the complainant has misdescribed what was an innocent touch and in an attempt to boost her up to throw the ball with his hands around her torso and there was no sexual connotation or that the touching did not occur in the circumstances of indecency.
In respect of the game, dak chasey, Ms Barnes submitted that I should have grave concerns about the complainant’s reliability that the incident happened at all. Firstly, she submitted that the complainant was uncertain as to her age at the time, her age changed throughout her evidence. Initially, she said she was 8 or 9 years old, and later she was 10. Her account was also lacking in any detail about what happened before or after. In addition to this, it was submitted that her account is unreliable in that she said her jeans and underwear were pulled not just down but right off the bottom of her legs and that was done whilst she was standing up. She would have had to move her legs in order for that to occur and it was submitted that it does not make sense that this would have been done whilst she was standing up.
In terms of where it occurred, it was submitted that there is no suggestion that it occurred at the Enfield house, but MB said that they were living at the Enfield house in 1990 for 12 months and did not move to Mount Barker until 1991. The act therefore could not have occurred when the complainant was 8 or 9 years old. There was also the evidence from the Facebook messages where MB and the complainant discussed the games that were played and the complainant asked ‘How old was I?’ to which MB responds ‘8 years old’. This may in fact explain where the initial evidence of her being 8 or 9 came from.
It was submitted that it was not surprising that the complainant was unreliable about dates including what year and how old she was because she was a child at the time.
Ms Barnes submitted that the complainant was also unreliable in relation to the trip to the beach, in that, she said she was 10 in the summer holidays in 1991/1992 and she went in the ambulance, but there was a real question about whether she was ever taken out in the ambulance. Her mother said she was taken in the water truck by the accused but did not mention anything about going in an ambulance.
There was no evidence to support the allegation that the accused collected the complainant and/or her brother in the ambulance at any stage. MB’s evidence on the topic was that she was not entirely certain when the ambulance was purchased but agreed that it was after the move to Mount Barker, which was in 1991, and agreed he had a Valiant station wagon before that. She also agreed that the ambulance had been owned for about 3 or 4 years and it was sold when she was pregnant with her daughter who was born in 1996. If that timeline is correct, then the ambulance was not purchased until at least 1992‑1993. The evidence is therefore unclear as to when the ambulance first came on the scene.
The complainant’s evidence was also unreliable in respect of her brother having a rat’s tail and his age and was also unreliable in relation to her own age. There was no supporting evidence in relation to the surrounding features of either of the charged acts or the uncharged act. The complainant, she said, agreed with the suggestion that the ambulance only had two seats in the front, and it was submitted that this too is a matter of concern as to the account given by the complainant that she, her brother and her cousin sat in one bucket seat together. It is submitted that that is implausible. It was submitted that she must be wrong in relation to her evidence in respect of going to the beach in the ambulance.
A further issue arose in relation to the beach trip and that was the detail as to her drying herself. It was not until after the break when she refreshed her memory that she recalled that she was changing out of her clothes and the accused was watching her. On the prosecution case he was watching them get changed and that demonstrated a sexual interest. However, Ms Barnes submitted that the evidence did not reach that level.
In respect of the Facebook messages, they were tendered to demonstrate ongoing contact between MB and the complainant after the initial complaint. It was submitted that they show MB having introduced the notion of sinister games being played and clearly demonstrates MB’s antagonism towards the accused. It was also submitted that MB sought to influence the account given by the complainant. MB also conceded that during the initial telephone call when the complaint was made, the complainant did not say anything about being touched on her breasts rather that the accused put his arms around her back. This was denied by the complainant who maintained that she told MB that she was grabbed or touched on the breasts. It is therefore a significant difference between them as to what was said about the pool incident. This is a consideration in relation to whether or not the account given by the complainant is consistent.
In addition to this, Ms Barnes submitted that the complainant was unreliable in that in her police statement she used the description of pants rather than jeans and did not tell the police that she was throwing the ball in the pool incident. In relation to the vehicle the complainant accepted that at some stage she knew that the accused had a spring water delivery truck and she knew he had a different vehicle to the ambulance but maintained the trip to the beach was in the ambulance.
In respect of MB’s evidence, Ms Barnes submitted there is clearly antagonism between her and the accused and that MB in her evidence was trying to suggest that the accused spent more time with the children than he did in reality. For example she said he drove the kids to and from school. Ms Barnes submitted that this would clearly be unnecessary as they lived across the road from the school. MB said the couples spent every weekend together when the complainant’s mother said that that was not the case and initially said they lived in Mount Barker from 1989 when it was not until much later. In her examination-in-chief, she said the accused did not have any other vehicles at the time they were sociable with the complainant’s family, other than the Commodore and the ambulance. However in cross-examination, she conceded he also had a Valiant station wagon and the water truck at some stage.
In relation to the pool incident, it was submitted that in order for an indecent assault to be proved, the prosecution must prove that it occurred in circumstances of indecency and had a sexual connotation. If it has not been proved that the accused intentionally touched the complainant on the breasts but rather his hands were around her torso or waist, then that is not an indecent assault as there is no circumstance of indecency and no sexual connotation.
Finally, Ms Barnes reminded me that these offences are said to have occurred 30 years ago and that there is a significant forensic disadvantage to the accused in identifying any witnesses, the complainant’s father has passed away, and there have been difficulties identifying and obtaining records such as property records, car records and work records.
Consideration
As I have indicated I found the complainant a particularly straightforward witness in relation to the charged acts. I was not left with the impression that she was embellishing her evidence. She conceded when she was uncertain about aspects of her evidence including her uncertainly as to her age at the time of the alleged offences. The offence relating to dak chasey was a very particular type of behaviour. It was behaviour that an adult may engage in with children, passing it off as a game when in fact it was prurient in nature. I am satisfied that the manner in which the offending came to light was spontaneous and not solicited with any detail by MB. I also accept that the very nature of the type of conduct and the circumstances in which it occurred was not the sort of behaviour that one would have expected a complaint to be made about at an earlier stage. As a child, the behaviour may well be accepted as a game or perhaps an over enthusiastic adult engaging in childlike behaviour. However, with the benefit of adult experiences and the direct question being asked it may well take on a different characterisation for the complainant.
Although the complaint as detailed by MB was not identical in its terms to that deposed to by the complainant, I am satisfied that it is consistent in terms of the words spoken and the conduct explained in relation to both charged acts.
As I have already mentioned I did not find MB a very impressive witness. She clearly regards the accused with disdain but more importantly her evidence was at times very confusing. She struggled in relation to any timeframe in respect of where she and the accused lived, where he worked and the vehicles he owned at relevant times. This may be explained by the passage of time, her medical conditions or it may emanate from some other cause. In one sense it matters little what the cause of it was or is. The result is her evidence was very unsatisfactory. I find it difficult to place much weight on her evidence except to the extent it is supported by other evidence.
In a similar way, the evidence of the complainant’s mother lacked in detail. This may be because the events in question occurred so long ago and even at that time, did not have much significance for her. It is plain that she worked long shifts at night, while raising her two children and trying to have a social life. However, her evidence did confirm an opportunity for the accused to have access to her children and look after them on occasion. Her knowledge of the vehicles he picked them up in was limited as she did not go outside to see her children off when he picked them up. Her recollection of the social events with the accused is much more limited than that of MB. Although, I do note, that she suggested that her home was a very sociable place. From this, I infer that parties or gatherings were frequent events.
The evidence that these events, the subject of the charged acts, occurred as the complainant has said is compelling, even though there was uncertainty as to her age at the time. I regard the complaint as spontaneous in the circumstances in which it occurred. As I have said it occurred in circumstances in which it may have been expected many years later. The evidence in relation to the age of the complainant at the times of various events does not cause me to doubt her evidence as to the occurrence of particular events. It is, however, a matter I have given close consideration to, as it provides a very clear example of the forensic disadvantage to the accused in defending these matters when uncertainty in relation to the timeframe exists. Nevertheless, the age of the complainant is not a material particular to the offending except what the maximum penalty is for a proven charge.

I am satisfied that the account given by the complainant in relation to the charged acts has not been influenced by any information that MB provided. Her account was given in relation to an initial enquiry and has remained consistent. I am satisfied that the complainant has not lied or exaggerated her account nor has she been motivated by financial considerations.
I am satisfied beyond reasonable doubt that the accused played dak chasey with the complainant at his home. I do not find the complainant’s account of it implausible. I am not troubled by her version of her pants being removed as was suggested by Ms Barnes. This occurred in the context of a game being played. The game was that if caught your pants were removed. There is no suggestion that the complainant resisted this in any way. I can see nothing implausible in a child stepping out of her pants as it was described in the evidence.
It is clear from the complainant’s evidence that this game occurred on multiple occasions. It was not until the charged occasion that she realised it was wrong and desisted. At the time of these events the accused was at least 30 years old. He was a family friend who occasionally looked after the children. There is no evidence that he took the children to and from school. The only evidence on this point comes from MB who said the accused told her he did that. It is not clear how many occasions he was alone with the children. However it was regular enough for the complainant to remember his house, his dogs, the games they played and a trip to the beach. It extended over a period from about 1989 to the time of the 40^th birthday in 1992, after which the accused no longer had contact with the complainant.
Dak chasey was played inside away from prying eyes. It was not played when other adults were present. Even after the complainant wanted to put her clothes on, the accused tried to encourage her to continue playing. I am satisfied beyond reasonable doubt that these games were played for a prurient purpose and that the removal of the complainant’s pants and underwear in these circumstances constitutes an indecent assault. I am satisfied beyond reasonable doubt that the accused pulled down the complainant’s pants and underwear in the course of playing ‘dak chasey’. This exposed her bottom and genital area. Further I am satisfied that his act was deliberate. I am satisfied that this act was indecent and had a sexual connotation in the manner in which it was done. I am also satisfied that the complainant was under 12 at the time, her 12^th birthday being on 15 July 1993.
Further, I am satisfied that the accused took the complainant, her cousin and her brother to the beach in his ambulance. It was after the dak chasey game but before the 40^th birthday. I have no difficulty accepting that three young children could have sat on or in the bucket seat of this vehicle on a trip to and from the beach. Moana Beach is not far from Huntfield Heights. The complainant was well aware of the existence of the ambulance. She could explain the appearance and layout. This evidence is also consistent with the evidence of MB about the ambulance. From that fact, I am prepared to infer that the accused had the ambulance by the time of the 40^th birthday in 1994.
I am not prepared to find that the accused’s behaviour at the beach, as described, is demonstrative of a sexual interest in the complainant. It is equally consistent with him waiting for the children to get changed in the circumstances in which it was described. I have not had regard to this evidence except as it relates to the question of the complainant’s reliability in respect of the ambulance.
I am satisfied beyond reasonable doubt that on the occasion of father’s 40^th birthday party, the complainant and other children were playing a game they called ‘marks up’. This involved a person in the shallow end throwing the ball to a person who was standing on the wall at the deep end and jumping in to catch the ball. The complainant was the person throwing the ball. There were other people in the vicinity including the accused’s father. The accused got into the shallow end of the pool. As the complainant bent down to enable her to propel herself up into the air, the accused came up behind her, put his arms around her and squeezed her breasts. She was 12 years old at this time. She immediately responded by hitting the accused in the head. Her action was witnessed by her father. She told the accused never to touch her again. The accused left the pool.
I accept that at the time the accused committed this act, his hands and the complainant’s chest were under the water. The acts were very brazen and opportunistic. The fact that the complainant reacted in the way that she did, probably distracted attention from the actions of the accused at that time. I accept that when she thought her father was going to challenge her about her behaviour, the accused excused her behaviour perhaps in an attempt to draw attention away from his actions. I accept that MB gave evidence that when complaining, the complainant did not mention that the accused touched her breasts. However, for the reasons I have already given, I do not regard MB as a reliable historian. I prefer the evidence of the complainant in this regard.
In making these findings on count 2, I have not found it necessary to rely upon any finding of a sexual interest that accused had in the complainant at that time, that may be drawn from the findings on count 1. The finding in respect of count 2 is not dependent upon a specific finding of sexual interest even though this may be inferred from the finding on count 1. The events were quite separate and occurred in very different circumstances, although both were opportunistic and brazen in the sense that they occurred in front of other people. As I have already indicated, I have not had regard to the beach incident to infer a sexual interest by the accused.
I am satisfied beyond reasonable doubt that the accused touched the complainant on her breasts in the swimming pool as she described in her evidence. Further I am satisfied that this was a deliberate act and that it was indecent to touch a 12-year-old girl in her bathers on her breasts and squeeze them in the swimming pool.
I am satisfied of the elements of both offences beyond reasonable doubt. I find the accused guilty of both charges.