R v N, M a and T, C-A L
[2023] SADC 81
•5 July 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v N, M A AND T, C-A L
Criminal Trial by Judge Alone
[2023] SADC 81
Reasons for the Verdicts of her Honour Judge Telfer
5 July 2023
CRIMINAL LAW - PARTICULAR OFFENCES - SEXUAL OFFENCES - MAINTAINING AN UNLAWFUL SEXUAL RELATIONSHIP WITH A CHILD
The accused were each charged with Maintaining an Unlawful Sexual Relationship with KB, the daughter of the accused Ms T and step-daughter of the accused Mr N.
The accused Mr N was further charged with one count of Aggravated Assault against KB.
It was alleged that KB was sexually abused by Ms T and Mr N together and, on occasion, by Mr N in the absence of Ms T. The abuse continued over the course of approximately five years, when KB was between 11 and 16 years of age.
In 2021 KB left the family home and complained about the abuse to an Aunt. The evidence of KB was supported circumstantially by text messages sent between Ms T and KB and Mr N and KB.
Held: Mr N is guilty of Maintaining an Unlawful Sexual Relationship with a Child and Aggravated Assault (Counts 1 and 2). Ms T is guilty of Maintaining an Unlawful Sexual Relationship with a Child (Count 3).
Criminal Law Consolidation Act 1935 (SA) s 20(3), 49(3), 50(1), 56(1), 58(1)(a)(c); Juries Act 1927 (SA) s 7; Evidence Act (SA) 34CA, 34KA, 34L, 34P, referred to.
R v Winner (1995) 79 A Crim R 528; R v Keyte (2000) 78 SASR 68, considered.
R v N, M A AND T, C-A L
[2023] SADC 81[Criminal]
Introduction
The accused Mr N and Ms T are each charged with one count of Maintaining an Unlawful Sexual Relationship with a Child pursuant to section 50(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’). In addition, Mr N is charged with one count of Aggravated Assault pursuant to section 20(3) of the CLCA. The complainant in each count is KB, the biological daughter of Ms T. Mr N was Ms T’s de facto partner and KB’s stepfather during the period of the alleged abuse, when KB was aged between about ten and sixteen years. KB was the second eldest of six children who lived or stayed with both accused, and the only female. It is alleged that she was the victim of sexual abuse by Mr N acting alone, and also by Mr N acting together with Ms T. The sexual acts included vaginal sexual intercourse, fellatio, cunnilingus, and a range of other sexual conduct. The conduct relied on to prove Count 1 against Mr N is not the same as the conduct relied upon to prove Count 3 against Ms T, although there is some overlap.
Mr N is charged with the following counts:
First Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[Mr N] between the 1st day of May 2014 and the 29th day of April 2021 at Lochiel, Renmark, Taldra, Whyalla, Monash, Loxton, Loxton North or other places, maintained an unlawful sexual relationship with [KB], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a) kissing her on more than one occasion;
(b) touching her breasts on more than one occasion;
(c) touching her vagina on more than one occasion;
(d) licking and sucking upon her nipples on more than one occasion;
(e) inserting his penis into her vagina on more than one occasion;
(f) inserting a finger into her anus on one occasion;
(g) inserting a finger into her vagina on more than one occasion;
(h) performing an act of cunnilingus upon her on more than one occasion;
(i) causing her to touch his penis on more than one occasion;
(j) causing her to perform an act of fellatio upon him on more than one occasion;
(k) engaging in sexual intercourse with [Ms T] in her presence, namely by inserting his penis into [Ms T’s] vagina on more than one occasion;
(l) engaging in an act of fellatio with [Ms T] in her presence on more than one occasion;
(m) inciting or procuring her to kiss [Ms T];
(n) inciting or procuring her to perform an act of cunnilingus upon [Ms T] on more than one occasion;
(o) inciting or procuring her to insert a finger into [Ms T’s] vagina on more than one occasion; and
(p) causing her to view pornography on more than one occasion.
Second Count
Statement of Offence
Aggravated Assault. (Section 20(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[Mr N] between the 11th day of June 2017 and the 12th day of September 2017 at Taldra, assaulted [KB].
It is further alleged that [Mr N] knew that [KB] was a child who normally or regularly resided with him.
Ms T is charged with the following offence:
Third Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[Ms T] between the 1st day of May 2014 and the 29th day of April 2021 at Lochiel, Renmark, Taldra, Whyalla, Monash, Loxton, Loxton North or other places, maintained an unlawful sexual relationship with [KB], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a) kissing her on more than once occasion;
(b) touching her breasts on more than once occasion;
(c) touching her vagina on more than one occasion;
(d) licking and sucking upon her nipples on more than one occasion;
(e) inserting a finger into her anus on one occasion;
(f) inserting a finger into her vagina on more than one occasion;
(g) causing her to lick and suck upon [Ms T’s] nipples on more than one occasion;
(h) causing her to perform an act of cunnilingus upon [Ms T] on more than one occasion;
(i) causing her to insert a finger into [Ms T’s] vagina on more than one occasion;
(j) causing her to view pornography;
(k) engaging in an act of fellatio with [Mr N] in her presence on more than one occasion;
(l) engaging in sexual intercourse with [Mr N] in her presence, namely by [Mr N] inserting his penis into [Ms T’s] vagina on more than one occasion;
(m) inciting or procuring her to have sexual intercourse with [Mr N] by him inserting his penis into her vagina on more than one occasion;
(n) inciting or procuring her to perform an act of fellatio upon [Mr N] on more than one occasion; and
(o) inciting or procuring her to touch [Mr N’s] penis on more than one occasion.
Over the charged period the family lived in approximately nine different houses in country locations across South Australia and Victoria. KB became isolated and she frequently moved schools. KB first complained about the sexual offending when she was 16 years old, after she left the family home to live with her maternal Aunt, Melissa T. KB’s initial complaint was made to Melissa T.
The accused elected for trial by judge alone pursuant to section 7 of the Juries Act 1927 (SA).
Preliminary Directions
In a trial by Judge alone it is not necessary for the Judge to replicate every direction that would be given in a summing up to a jury. The following observations by Kirby P (as he then was) have been cited with approval in this state:[1]
It has not yet been possible for the Court to accumulate a body of precedent regarding the approaches to be taken by a judge instructing himself or herself on the applicable principles of law. It seems to have been assumed that the judge is bound to record (as if in an instruction to a jury) the considerations which have been taken into account in reaching the determination on the issue of guilt. It also seems to have been assumed that the same explanations for adopting one course rather than another, which are regularly used to justify decisions at trial before a jury, are to be incorporated, without modification, in a trial before a judge sitting alone. I question these assumptions. It is not self evident that, in instructing himself or herself, a judge must express all of the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of the law. For example, it would not seem to be necessary for the judge to expressly refer, at least at any length, to rudimentary and uncontested principles, such as on the onus and burden of proof. It might be assumed that this is known and applied, in the absence of an indication that a mistake has occurred. Similarly, the tactical reasons which might require, or suggest, silence by the parties on a particular issue in a trial before a jury will not apply, at least to the same extent, before a judge sitting alone. It should be perfectly possible for the judge to hear inconsistent submissions put in the alternative. In the hands of a trained judicial officer, these would be evaluated on their merits and decided as the law and the factual findings required.
The judge's duty, as in all judicial activity, is to provide reasons for the decision, that being an incident of the judicial office. Those reasons must be adequate and appropriate to sustain the judge's orders. But I am far from convinced that the absence from such reasons of express references to judicial instruction which might be required for a jury trial will necessarily indicate the kind of errors that would invite and authorise the intervention of a Court of Criminal Appeal. One of the obvious advantages intended by Parliament in the procedure of trial before a judge sitting alone is the saving of time, the consideration of the case by a trained and experienced decision-maker and the provision of reasons for the decision which may be reviewed on appeal. (references omitted)
[1] R v Winner (1995) 79 A Crim R 528 at 30-531, cited in R v Keyte (2000) 78 SASR 68 at [54].
With these principles in mind, I set out some preliminary matters which have guided my consideration of the evidence in this matter.
Presumption of Innocence and Right to Silence
The accused each have the presumption of innocence in their favour. They are each innocent of the charge unless and until the prosecution prove his or her guilt beyond a reasonable doubt, and neither need prove anything. Mr N and Ms T cannot be convicted on any count unless the evidence relevant to that count proves the elements to the requisite standard.
I must assess the evidence of each witness as to their truthfulness, credibility and reliability. I must determine whether I can rely upon the evidence given by each witness. I can accept or reject the evidence of a witness in whole or in part.
In this matter Ms T chose not to give evidence. She was not under any obligation to do so, and I draw no inference from the fact that she exercised her right to silence at trial. Evidence was led that upon their arrest, each of the accused exercised their right not to answer police questions. I similarly draw no inference from them having exercised their lawful rights.
Vulnerable Witness Provisions
KB gave evidence with the assistance of a court companion, a screen and a closed court. I direct myself that I must not allow these special provisions to influence the weight I give her evidence. I do not draw any inference against either accused from the fact that the evidence was given in this way.
KB’s younger brother SB also gave evidence with the assistance of a screen placed between he and each accused. I do not draw any inference against either accused from the fact that evidence was given in that way. I have not permitted the special arrangement to influence the weight I have given to SB’s evidence.
The Acts of Sexual Abuse
KB was 18 years of age at the time she gave her evidence. She was studying to complete her final year of schooling and was working part time at a takeaway shop in the town where she was living. She had been estranged from each of the accused since she first disclosed the abuse.
KB was born in September 2004. Her biological mother is the accused Ms T and her biological Father Mr B. She has one full biological brother SB, and four half-brothers on her mother’s side (Bo, J, G and A). Mr N has a son B who also lived with the family during the relevant period on a full-time basis.
As a young child, KB was living with her biological Father Mr B at an interstate location. Those care arrangements were unsatisfactory and at some point, KB’s relatives Aunty Renata and Uncle Dusty travelled interstate to remove her and her brother SB. KB’s father had longstanding issues with the use of drugs. KB lived with Aunty Renata and Uncle Dusty for a time. There was an unsuccessful attempt for them to return to the care of Mr B. Towards the end of 2015 KB and SB began to have contact with their mother Ms T again. They had not been in her care since they were three or four years old.[2] KB began to visit her Mother Ms T over weekends. At Christmas 2015 KB and SB returned to live with Ms T full time.[3]
[2] TS 462.
[3] TS 462.
According to KB, a couple of months after she returned to the care of her mother, the family moved in with Mr N and his children to an address at Lochiel. Living at that house were the two accused, KB, SB, Bo, J, G, Be and A who visited on weekends. KB got along well with the accused Mr N and quickly started to refer to him as ‘Dad’.
Ellis St Lochiel
KB’s evidence was that the first house she lived at with Mr N and Ms T was 24 Ellis Street Lochiel.[4] When she first moved in, the room which would ultimately become her bedroom was being used for storage, so she slept on a couch in the lounge room. The boys occupied one bedroom, and Mr N and Ms T another.[5]
[4] TS 31. KB recognised a photo although was not able to recall the specific address.
[5] Floorplans of Ellis Street Lochiel were tendered as P2 and D12.
Motor vehicle address details for Mr N and Ms T record each of them residing at 24 Ellis Street Lochiel from 2 June 2016 and 14 July 2016 respectively.[6] School records have KB starting at Balaklava Primary School from 14 June 2016.[7] In mid-2016 KB was 11 years of age and in Year 6 at school.
[6] Exhibit P24.
[7] Exhibit P25, Agreed Fact 5.
KB recalled that the sexual abuse began while she was staying on the couch in the loungeroom at Ellis Street, Lochiel. It was a warm evening, in summer and towards the end of the year she thought. She was wearing an owl onesie to bed. The heat meant she was not sleeping well, and she heard Ms T and Mr M talking in their bedroom which was directly off the loungeroom. She heard Mr N ask Ms T for sex, but Ms T was not receptive. She heard Ms T tell him to go to her for it. Mr N came out and asked her to come into the bedroom. She said she did not want to. Mr N told her that her Mother Ms T had sent him out, so KB went into the bedroom.
Ms T was lying naked on the bed. She told KB to lay on her back and spread her legs apart. Mr N told KB that this was normal, and it is what Dads and daughters did. Ms T told Mr N “careful, she might bleed at first”.[8] Mr N then had vaginal sexual intercourse with KB. Ms T lay alongside them on the bed, facing away and looking at her mobile telephone.[9] Mr N also attempted to kiss KB and touch her breasts during the act of intercourse.
[8] TS 36.
[9] TS 38.
Mr N told KB that she had not started her period yet, so he would not get her pregnant.[10] KB was told to get Mr N and Ms T two iced coffee drinks from the fridge for them. She did so and she returned to the lounge to try and sleep.
[10] TS 40.
A couple of days later KB was called to the bedroom by Ms T. It was a weekend, and her brothers were in their bedroom. Mr N was lying on the bed wearing boxer shorts. Ms T sat alongside Mr N and directed KB to sit on the other side. Ms T used her hand and mouth to touch Mr N’s penis and encouraged KB to do the same. KB knelt on the bed and performed fellatio as demonstrated by Ms T.[11] KB could not recall if Ms T remained on the bed or left the room while she performed fellatio on Mr N.
[11] TS 42.
KB said that after these initial incidents, the acts of sexual intercourse continued at the Lochiel house. Her Mother Ms T was present on many occasions when these acts occurred.[12]
[12] TS 46.
Eventually KB moved into her own bedroom at the Lochiel house. Once she had a bedroom of her own, there were occasions when Mr N would come into her bedroom, in the absence of Ms T, and have vaginal sexual intercourse with her.
There were two other outside locations where Mr N took KB for ‘sexual activities’. The first was a veranda between the house and a rainwater tank at the side of the house, and the second was a small outdoor shed which had been re-fitted as a bar. That room was full of stored belongings, including an old mattress where KB lay during the acts of intercourse in that location. Sexual intercourse occurred more than once in each of those locations in the absence of Ms T.
The First Doctor’s Appointment
KB said in evidence that she got her first period when she was in Year 7 at Balaklava Primary School. She was 12 years old, and no-one had yet explained to her what it was and what it meant.[13]
[13] TS 47.
KB gave evidence that after she first got her period her mother took her to a doctor and asked that she be prescribed the contraceptive pill. KB said her mother told the doctor that she was having sex with her boyfriend. KB said that she did not have a boyfriend at any time while she was living with her mother and had never even been on a date.[14] KB recalled that her mother “did all the talking”.[15]
[14] TS 47.
[15] TS 48.
A statement from Dr Wendy Strachan was admitted in evidence pursuant to section 34KA of the Evidence Act 1929 (SA) (‘the Evidence Act’), the witness having passed away by the time of trial.[16] On 9 November 2016, when KB had just turned 12 years of age she was taken to a medical clinic in Kadina where a consultation lasting 23 minutes occurred. One of the issues raised during the consultation by Ms T (recorded as ‘KB’s mother’) was that KB was sexually active. Ms T requested that KB be prescribed the contraceptive pill. It was reported that KB had been menstruating for 6-8 months and was sexually active. No further detail was recorded about the nature of the sexual activity and KB was provided with a prescription for the contraceptive pill.
[16] P21. Dr Strachan was deceased by the time the trial took place.
KB said she took the contraceptive pill each evening at 6 pm. She set an alarm on her mobile telephone to remind her and she kept the pill packet in the pocket of her mobile telephone cover.[17]
[17] TS 48.
KB must have been mistaken about the year of school she was in when she first got her period. The appointment with Dr Strachan was in November 2016 when KB was at the end of Year 6 at Balaklava High School. She turned 12 years of age in September of 2016.
The prescription of the contraceptive pill to KB at the age of 12, at the request of Ms T, is an important and persuasive piece of circumstantial evidence of Ms T’s knowledge of Mr N’s sexual abuse of her daughter KB.
Nineteenth Street Renmark
KB recalled a period of time when her mother Ms T and Mr N separated, and she moved back to Ms T’s parent’s home, and then to 16 Nineteenth Street Renmark. KB recalled one occasion when Mr N visited the Renmark house late at night and was still at the house the following morning. KB stayed home from school sick that day, and the boys all went to school. Ms T and Mr N were both at home and there was a mattress in the loungeroom where the pair had slept the previous night. KB was sitting on the couch in the clothing that she had slept in.
Ms T began to play with Mr N’s penis and told KB to come onto the mattress. Mr N had vaginal sexual intercourse with KB at that location. Ms T lay beside Mr N on the mattress on her stomach and watched television while he completed the act of intercourse with KB. She told Mr N to hurry up and be quick.
Records show that Ms T’s address was recorded in Housing SA records at 16 Nineteenth Street, Renmark between 13 April 2016 and 13 August 2017. I do not take this as reflecting necessarily dates of occupancy, but address details supplied to that organisation.
Of more probative value as to the dates of occupancy at Renmark is school records for KB which record her as attending Renmark Primary School for a very short period between 2 May 2016 and 9 June 2016. These records support the conclusion that KB was living at Renmark for a short period of time after the family returned to South Australia from Victoria. The time in Victoria is discussed below.
Uncharged Acts in Victoria
KB recalled that the family travelled to a Warrnambool in Victoria after rather than before they lived at Renmark. In Warrnambool the family stayed with Ms T’s sister Melissa T. At Melissa T’s house Mr N, Ms T and KB all stayed in a caravan situated on Melissa T’s property. KB recalled that the boys all stayed inside the premises. KB said that on more than one occasion Mr N engaged in vaginal sexual intercourse with her in the caravan, and she performed acts of fellatio on him. She said that Ms T did not do anything to her, but she was present when Mr N admitted acts of sexual abuse on her. When those things occurred, the boys were inside the house or outside playing with other children.[18]
[18] TS 57-58.
Melissa T gave evidence about this period of time. She was living with her husband and children in a small town called Kirkstall, about 30 kilometres from Warrnambool in Victoria. She recalled that the accused and the children arrived to stay in January 2016, and stayed for a couple of months.[19] Melissa T recalled that Mr N, Ms T and KB slept in a caravan at the rear of her property.[20] Two of the boys slept in bunk beds in the caravan, and other boys slept indoors. Melissa T said there was an occasion when all the boys stayed for a time inside the house at the request of Mr N and Ms T because the weather was very cold. Some of the boys slept in the lounge room and others in her son’s bedroom. KB, she said, remained in the caravan with the two accused. Melissa T was unable to recall how many nights KB slept in the caravan alone with the accused, with the boys inside the house.
[19] TS 370.
[20] TS 371.
Melissa T was asked in cross examination about the reason the family came to Victoria. She disagreed that Mr N had work available to him, and that was the reason for the move. She said that Mr N was unemployed when he arrived, and Melissa T asked her husband’s uncle about assisting him to find work. He began work a couple of weeks after they arrived.
A letter from the Port Fairy Consolidated School was tendered by agreement as to the truth of its contents. The letter recorded that G, J, S, B (the male children of Ms T and the male child of Mr N) and KB were all enrolled at that school between 27 January 2016 and 11 April 2016.[21] Those dates suggest that the family lived in Kirkstall, and attended the Port Fairy Consolidated School prior to moving in to 16 Nineteenth Street Renmark, and then 24 Ellis Street Lochiel, which appears to be a location they lived at starting in approximately June of 2016.[22]
[21] D27.
[22] Exhibit P24 Motor Vehicle address histories for each accused.
As these acts occurred outside the jurisdiction they are not relied upon as particulars of the charged offending. They are therefore subject to section 34P of the Evidence Act. Those acts, if proved, are relevant to demonstrate the consistency and continuity of the sexual abuse. I also consider that those acts contribute to a picture of a preparedness (on the part of Mr N) to be brazen and take risks to offend against KB. On the other hand, there are difficulties with KB’s evidence about the timing and sequence of the events in Victoria which potentially undermine KB’s reliability on matters of relevance. I confirm that I have not used evidence of uncharged acts of sexual abuse to engage in specific or general propensity reasoning, including sexual attraction or general bad person reasoning.
Fogden Road Taldra
KB gave evidence that she moved with her family to a house at 1295 Fogden Road Taldra. She always knew the location as Taplan and had not heard the town name Taldra.[23] KB said that the family moved into the house in time for her thirteenth birthday which was in late 2017. After the family moved in she finished Year 7 at Loxton Primary School, then the following year she went to Loxton High School.
[23] TS 60.
At the house at Taldra the 5 boys occupied two rooms, and KB had a room to herself. The accused shared a room which was situated on the opposite side of the hallway to the KB’s bedroom, opposite the room occupied by J, G and B, the three youngest boys.
KB said that at this house Mr N continued to have vaginal sexual intercourse with her. She recalled that the positions she was in when that occurred varied between on her back, on her side and on all fours.[24] She recalled performing acts of fellatio on Mr N at this house, and him touching her breasts with his hands and his tongue, touching the outside of her genitals with his hand, and inserting his finger into her vagina.[25]
[24] TS 61.
[25] TS 62.
She said this conduct occurred at Taplan on a regular basis, nearly every day.
KB said that while at Taplan, her mother Ms T participated in the sexual abuse perpetrated by Mr N for the first time.[26] The first time this occurred KB was in the loungeroom, and she received a telephone call from Ms T. It was not unusual for Ms T to text or telephone when she did not want to walk from her bedroom to the loungeroom to speak to KB. When she arrived at their bedroom both accused were laying on the bed. She touched Mr N as she was accustomed to doing, and then Ms T indicated she wanted Mr N to perform cunnilingus on her. Mr N did not want to perform cunnilingus and he suggested that KB do so. Ms T said no, she did not want that, but Mr N insisted. Mr N told KB how to perform cunnilingus, including putting her fingers inside Ms T’s vagina.[27] KB did as she was told while Mr N kissed Ms T and touched her breasts.
[26] TS 62.
[27] TS 64-65.
Thereafter, Ms T engaged in vaginal sexual intercourse with Mr N by sitting on top of him. At the same time Mr N performed an act of cunnilingus on KB.[28] Mr N encouraged KB to kiss Ms T. The episode concluded with KB performing an act of fellatio upon Mr N.
[28] TS 65-66.
At Taldra Mr N also sexually abused KB in locations outside the house, in her bedroom and in the bathroom. These acts occurred in the absence of Ms T.[29]
[29] TS 67.
KB gave more detailed evidence of an occasion which occurred in the bathroom. She said that Mr N came into the bathroom and shut the door. He tried unsuccessfully to bend her over the bathroom sink to have intercourse. He then asked KB to position herself on all fours on the bathroom floor and to hold the door closed with her hands wedged between the floor and the door. In that position Mr N had vaginal sexual intercourse with her.[30]
[30] TS 69-70.
KB gave further evidence of Mr N having vaginal intercourse with her more than once on a cement path which ran down the side of the house.[31]
[31] TS 70-71.
Records tendered during the trial support the conclusion that the family moved into Fogden Road Taldra (Taplan) around August 2017[32], and remained there until mid-2018 when the family moved to Whyalla.[33] When the family moved to Whyalla, KB moved from Loxton High School where she had been in year 8 to Whyalla High School.
[32] P 24 Motor Vehicle address histories for each accused.
[33] P 25 Agreed Fact 5 school enrolment records.
The Second Doctor’s Appointment
On 20 October 2017, when KB was 13 years old, she attended an appointment with Dr Naing at the Loxton Medical Centre. She was accompanied by Mr N, who was recorded in the medical notes as her stepfather.[34] A prescription for the contraceptive pill was obtained. During the consultation KB was unable to tell Dr Naing what specific pill she had been taking. Dr Naing made a telephone call to KB’s mother, Ms T and was told that KB was taking the medication for irregular and heavy periods. Dr Naing wrote a prescription for one month and arranged a follow up for KB in the presence of her mother.[35]
[34] Exhibit P22, statement of Dr Yuya Naing.
[35] Exhibit P22, paragraph [7] and [8].
One month later KB re-attended at the Loxton Medical Centre in company with her Mother Ms T. A repeat prescription for the pill was sought and the medical notes record that the Doctor was told that the pill was for both “cycle control and contraception”.[36]
[36] Exhibit P22, attached medical notes.
I consider this evidence a probative piece of circumstantial evidence against Ms T. I also consider the fact that KB required contraception when she was 12 years of age, is a relevant circumstance that bears on the probability that the accused Mr N was having vaginal sexual intercourse with her at that time. KB’s evidence was that at no time did she even have a boyfriend when she was living with Ms T.
Showing KB Pornography
KB gave evidence of two occasions on which Mr N showed her pornography while they were living at the Taplan house. KB said that Mr N had her and Bo (her older brother) sit down in the loungeroom and he put a DVD on. Ms T was physically present but did not say very much. The movie that was played was called “Cream Pie” and focussed on anal intercourse. When KB attempted to stop watching Mr N told her to sit down because the movie would educate them on these matters, including that “it [the penis] can go in other places than just the vagina”.[37]
[37] TS 74.
On a second occasion Mr N showed KB adult pornography on his mobile telephone that he accessed on an internet site Pornhub. KB described the specific content of that video. No-one else was in the vicinity at this time.[38]
[38] TS 74-75.
Loring Street and Perkins Street Whyalla
KB gave evidence that after the Taldra address, the family moved to Whyalla. They stayed for a time at a caravan park, then at a friend of Mr N’s. Records show that KB was enrolled at Whyalla High School from 23 July 2018, mid-way through Year 8, to 22 July 2019, mid-way through Year 9.
KB told the Court that while living at Whyalla Mr N continued to sexually abuse her, including in the presence of Ms T in their bedroom, and in her bedroom with just Mr N present.
KB described the same sexual activity that she said had occurred at Taldra, at a frequency of nearly every day.[39]
[39] TS 79-80.
She recalled one specific incident that occurred while the family was living at Perkins Street, Whyalla. One evening KB was wearing a navy silk nightie to bed. She walked to the room occupied by the accused to talk with Ms T and the accused were lying on their bed together. Ms T tried to pull KB onto the bed so that she fell on top of Mr N. Mr N grabbed her and began to grind his pelvis into the side of her hip. Mr N became sexually aroused and wanted to engage sexually with Ms T. Ms T rejected Mr N, saying “no, she [KB] can deal with you”.[40] KB understood that to mean that she would have to “please him".[41] Ms T walked out of the room and closed the door behind her.
[40] TS 81.
[41] TS 81.
Mr N told KB to take her nightie off and he took his boxer shorts off. KB sat on top of him, and Mr N engaged in penis/vagina intercourse.
Sturt Highway Monash
At some point, the family moved to Monash in the Riverland. They stayed at the home of Mr N’s parents. KB was unable to recall specifically when the family stayed at Monash, although she thought that it had been after the family left Whyalla.
KB said that when the family first arrived, they slept in tents which had been pitched on the property. KB shared a tent with the accused, and the boys shared the second tent. After a while the accused came to sleep on a bus that had been converted into a campervan. KB gave evidence that Mr N sexually abused her while they were sleeping in the tents, and also in two outdoor locations. The outdoor locations were alongside a white utility vehicle and alongside some water crates which were used for rainwater storage.
KB said that on one occasion when she and the two accused were sleeping in one of the tents, Ms T inserted her finger into her bottom a small way. She did this when KB was sitting on top of Mr N having penis/vagina sexual intercourse. KB said that Mr N also attempted to put his finger into her anus, but he was not successful.[42] KB said that ‘it’ also occurred in the bus after the adults moved from the tents to stay in the bus. She did not give any detailed evidence about the events she recalled inside the bus.[43] She could not recall if it happened at daytime or night-time.[44]
[42] TS 87.
[43] TS 190.
[44] TS 192.
KB said that she recalled a white utility parked with a number of other vehicles along with a trailer at the rear of the house. In the same area were a number of water crates which could be moved using a forklift. KB said that during some nights Mr N would sneak her away to an outdoor location near the car and the water crates. In these circumstances, the accused Mr N had intercourse with her on more than one occasion in the absence of Ms T.[45] In cross examination KB clarified that she only recalled one time that Mr N had intercourse with her by the water crates and one occasion by the white utility.[46]
[45] TS 88.
[46] TS 193.
Evidence of SB re Monash
KB’s younger brother was 17 at the time he gave his evidence. He no longer resided with Ms T and lived separately to KB with relatives. SB gave evidence about the layout and sleeping arrangements at the Monash property.[47] He recalled that on the property was the bus and a “few cars”. The cars included a white utility.[48] SB could not remember much about the other cars. In cross examination he accepted that he could be wrong about the presence of a white utility because a long time had passed and there was “a bunch of cars in and out”.[49]
[47] TS 429-431.
[48] TS 429.
[49] TS 443.
SB told the Court that the family all slept on the bus while they stayed at Monash, with the exception of B, Mr N’s son who slept inside with his grandparents. He could not recall ever sleeping in tents on the property.[50]
[50] TS 431.
Evidence of Mrs SN re Monash
Mr N’s mother Mrs SN gave evidence of the layout of the property at Monash and the circumstances in which the family stayed with her. Mrs SN said that the family arrived in May 2017 for Mr N to assist with the building of a large Colourbond shed.
Mrs SN said that when the family first arrived, they slept across two tents for no more than a week. Thereafter, the renovated bus was parked alongside the house and everyone in the family slept in the bus.[51] Her recollection was that the kitchen window of the house looked out into the bus, although there were venetian blinds on the bus windows.[52] The entrance to the bus was on the opposite side of the bus to the house.
[51] TS 570.
[52] TS 580.
Mrs SN said that all the family members slept on the bus. She described the interior of the bus, saying that there was a set of bunks and then a double bed at the rear of the bus.[53] Mrs SN said KB and Bo slept on the bunks and the younger boys slept on the lounge or on the floor.[54] Later in cross examination Mrs SN clarified that she did not make a habit of going into the bus, as she considered it the family’s private area. She said she knew who slept where in the bus from what she was told and from one visit she made at the start of the family’s stay to “make sure everything was alright”.[55] Mrs SN denied that there was any time that any of the children slept inside the house, although she said that if she had thought that the sleeping arrangements on the bus were too crowded, she would have had her grandson B sleep inside.[56]
[53] TS 570.
54 TS 570.
[55] TS 585.
[56] TS 586.
She said that the area where the water crates were stored could be seen from the kitchen window of the house.[57] She told the Court that it was not possible that Mr N was up and about on the property after she had gone to bed in the evening.[58] She inferred this was impossible because her dog would bark if anyone was moving around on the property, and she would get up to check what was going on.[59] Mrs SN said that the dog did not bark at the family members during the daytime, but he would at night, even though he became accustomed to the family being there over the time they stayed.[60] She said that the dog did not bark at night during that period very often at all.[61]
[57] TS 582.
[58] TS 582.
[59] TS 583.
[60] TS 589.
[61] TS 589.
Mrs SN told the Court that at the time that the family stayed neither she nor her husband owned a white utility. There was, she said, no utility on the property at all. She said that the first time her husband obtained a white utility was in about 2021. She was cross examined about what vehicles were stored at the property in 2017 and maintained that she and her husband only had a Kia Rio and a Mitsubishi Challenger 4WD.
A photograph of the utility obtained later was tendered as D18, and documents recorded its purchase in November 2020.[62] KB was shown the image D18 and said that she was ‘pretty certain’, although she could not be sure, that the utility shown in the photo was the same one that had been on the property when she stayed.[63]
[62] D26.
[63] TS 267.
Hilltop Drive Loxton
KB described events that occurred when the family were living at the premises at 8 Hilltop Drive Loxton. She recalled that at that time she was attending Loxton High School, and that house was after Monash and after Whyalla.[64] KB thought that the family lived at this house only a couple of months. The family moved out because the owners wanted to renovate.
[64] TS 92.
Motor registration records show Mr N provided the Hilltop Drive address from 5 August 2019 and Ms T from 13 August 2019.[65] KB attended Loxton High School from 14 August 2019 having moved from Whyalla High School. The next address, 4 Bullwinkle Road is first recorded in Mr N’s Housing SA records from 7 February 2020.[66] It would seem therefore that the family’s stay at Hilltop Drive Loxton was brief.
[65] P24.
[66] P23.
KB gave limited evidence about the events which occurred at Hilltop Drive. A plan of the premises was tendered which showed that the house was a single-story dwelling with KB’s bedroom situated close to the bedroom occupied by Mr N and Ms T, and away from the bedrooms occupied by the boys. The boys would need to come past the bedroom doors to KB’s room and the accuseds’ room to use the toilet.
KB said that events at Hilltop Drive followed the same pattern of Mr N having sexual contact with her in the presence of Ms T, or in her bedroom in the absence of Ms T. She did not describe any specific acts that occurred at that house.
Bullwinkle Drive Loxton
As noted above, the first reference to Bullwinkle Road Loxton is 7 February 2020 in the motor registration records for Mr N. Ms T’s motor registration records record her at that address from 1 June 2020.[67]
[67] P24.
A plan of Bullwinkle Road was tendered showing a two-story dwelling with bedrooms on both the lower and upper levels.[68] The boys’ bedrooms were all downstairs, and KB’s bedroom was upstairs, next-door to the room occupied by the accused. KB said that the sexual activity continued after the family moved to this house. This included, she said, the accused visiting her in her bedroom and committing acts of sexual abuse upon her in the absence of her mother, and having intercourse with Mr N in the presence of her mother.
[68] D15.
KB described specific acts which occurred in outdoor locations at Bullwinkle Avenue. She described one occasion when she was taken by Mr N down the side of the house and asked to position herself on her hands and knees. While he was having intercourse with her in that position, prickles on the ground surface dug into her hands. She recalled pulling the prickles out of hands after the incident.[69]
[69] TS 95.
KB was asked about whether her emotional response to the sexual abuse changed as time went on. She said that she “did not feel anything other than hurt and pain. There were some nights that I would cry myself to sleep”.[70] KB said there was one occasion towards the end of the period of abuse that Mr N had intercourse with her while she silently cried, describing herself as having tears coming out of her eyes. After Mr N completed the act of intercourse, he left KB’s bedroom and said the words “thanks for that”. KB said that Mr N had never said words of that kind before.
[70] TS 96-97.
KB said that by this time she was in year ten or eleven and she was becoming upset because no matter what she did she felt she was treated badly by both accused. She said, “I wanted to be treated like a daughter…and I remember staring out the window having tears roll down my face just wanting it to be over and done with, but there was no use fighting it because then I would get treated like crap again.”[71] KB described being treated badly when she indicated she did not want to engage in sexual activities. She described the accused Mr N accusing her of “killing the mood”.
The Martins Bend Trip 2021
[71] TS 98.
KB said that over a weekend in 2021 she, both accused and some of her brothers went on holiday to Martin’s Bend on the River Murray. During that trip Mr N asked her to accompany him to chop wood for the fire. She said Mr N had been calling her names such as ‘fat cow’ and was teasing her that they planned to take all the children to Disneyland and leave her behind to look after the house and the animals. She refused to go with him to chop wood when he asked. When Mr N then left with Ms T to chop wood, KB was left to babysit the boys. She felt upset that she had not even been asked if that was alright. She said she had had enough and could not do it anymore, so she packed up her stuff, apologised to her brothers and called her Aunty Melissa T to come and collect her.[72] The date on which KB left the family was fixed by reference to a photo that she took of the river on the morning she left. That photo bore a date of 25 April 2021.[73]
[72] TS 103-104.
[73] P 4.
KB said that by the time she left she was ‘in a very bad head space’ and had begun to self-harm. Her Aunt Melissa T had moved back to South Australia from Victoria and KB was beginning to re-connect with her. She found she was able to talk with her, in contrast to previously feeling very isolated from most family members.[74] She said it was for that reason she chose her to call when she decided to leave the family. Melissa T collected her from the campsite and took her to the Bullwinkle house on the way home to collect her belongings.
[74] TS 105.
Initial Complaint to Melissa T
KB told the Court that prior to moving to live with Melissa T she was asked by multiple family members if there was “anything going on”.[75] She responded by lying because she had been told by Mr N and Ms T that if she told anyone she would get in trouble, and the accused would both get in trouble.[76]
[75] TS 107.
[76] TS 107.
KB said she did not disclose the abuse because she did not want to leave her brothers and she worried about what would happen to them. She worried they might also become victims of sexual abuse. As the only daughter she had adopted a mothering or caring role towards the boys, and that weighed heavily in her decision to leave.[77]
[77] TS 108.
The first person that KB told about the abuse was Melissa T. Her evidence was that she was in the car one morning on her way to school with Melissa T having dropped her younger children at school already. Melissa T asked KB if anything was wrong. Melissa T said, “I know there is something you want to tell me, something you’ve been wanting to tell me and I know you are scared, but I promise I won’t get mad or anything”.[78] Melissa T promised she would not get upset if KB told her. KB “told her that when mum didn’t want sex she sent [Mr N] to me”.[79] At the time KB was crying and said she felt ashamed and dirty. She said she may have said other things to Melissa T about the abuse during the conversation, but she could now not recall.
[78] TS 109.
[79] TS 109.
In her evidence Melissa T said that the morning of the school drop-off KB seemed ‘off’, and appeared very pale. She told KB she did not look well and asked if she wanted the day off. Melissa T said KB then said she wanted to tell her something, but she was worried that she would be angry. After reassuring KB, KB told her that Ms T and Mr N “made her have sex with them”.[80]
[80] TS 361.
After the disclosure was made a counselling appointment was made for KB with Yarrow Place Rape and Sexual Assault Service. Melissa T took her to the first appointment and was present. Thereafter KB attended on her own. Melissa T then took KB to the police to report the matter, and sat in while KB gave her first statement to the police.[81]
[81] TS 384.
34M Direction
I remind myself that the evidence of what KB disclosed to Melissa T is not evidence of the truth of the allegation. I have considered that evidence (from both KB and Melissa T) as relevant only to the credibility of KB. I have used the evidence to understand how the allegations first came to light and to assess whether the conduct of KB is consistent with her allegations.
I have taken into account that there are many reasons why KB told Melissa T about these matters at the time that she did and why she chose to tell Melissa T rather than another person.
Counsel for Ms T argued that the timing of the complaint to Melissa T demonstrates that it was made at a time that KB was angry with her Mother, and may have been motivated by emotional pain, fear or anger to say something hurtful about Ms T. Text messages were tendered which demonstrated that prior to KB leaving the family, she was discussing the possibility that Ms T would leave the relationship with Mr N.[82]
[82] D 19A.
Around the end of May or the start of June 2021 KB became aware that Ms T and Mr N had taken the boys and moved to Nuriootpa. She had not left Mr N as she had promised, but had left her. The complaint was made after the family had moved away.[83]
[83] TS 337.
Counsel for Ms T argued that it is against this background that the initial complaint was blurted out in pain and anger as a result of her mother prioritising her relationship with Mr N over her family and KB. The difference between the terms of the complaint deposed to by Melissa T (that Ms T and Mr N had sex with her) and by KB (that when Ms T did not want sex she sent Mr N to her) was highlighted as exposing the possibility that the lie blurted out in anger has taken on a life of its own in the hands of Melissa T, and it has not been possible in the circumstances for KB to retract the allegation.
KB agreed that Ms T was telling her in the time leading up to April 2021 that she was planning on leaving Mr N. KB said “she’d always say that she was going to and that she wanted to, so I would ask her when she wanted to, like, if she was actually going to do it. She used to say things and never actually do them, for example, say that she wanted to leave [Mr N] but she never did, she struck through, like, by him, even after he abused her multiple times”.[84]
[84] TS 318.
KB remained in contact with Ms T after she moved in with Melissa T. KB agreed that she wanted a continuing relationship with Ms T. She said she wanted her mother to apologise to her for what she had done and make things right. She said she wanted a normal relationship with her mother.[85] She described feeling like she was looking after everyone, including her mother, and she wanted her mother to look after her.[86] She said that she was willing to return to the family, but only if Mr N was gone. She said that is the only way she could be assured that the sexual abuse would stop, and she would be able to have a normal life.[87]
[85] TS 326.
[86] TS 327.
[87] TS 331.
The evidence as to what was initially said by way of complaint is inconsistent as to its precise terms between KB and Melissa T. KB however said that there were other things she said as part of that complaint that she cannot now recall.
I consider that the timing and the terms of the complaint do have the capacity to reflect positively on the credit of KB. Her complaint came at a time when she was safe from Mr N, and when she had abandoned a hope that she might be able to move forward with a relationship with her mother without Mr N. I do not consider that the lack of mention of Ms T’s participation (on KB’s account) undermines the capacity of the evidence to bear on her credibility. I do not accept the argument that the initial complaint was a lie uttered in anger that took on a life of its own. I do not consider that a realistic scenario in light of the quality of the evidence that supports the charges. I consider the timing of her complaint is equally consistent with being made at a time when KB had abandoned hope of salvaging a relationship with her mother, an aim that her continuing silence may have been designed to secure.
Physical Assaults against KB and Others
The Monash Bus
KB gave evidence about an incident of violence which she witnessed between Mr N and Ms T on the bus at Monash. She said that the pair were on the bus and appeared to be arguing about something. Mr N was becoming physical with Ms T, “grabbing her and that”. KB went to get Ms T’s mobile telephone, saying she planned to call her Aunty Renate to come and pick them up. Mr N grabbed her wrist tightly and took the phone out of her hand, telling her she was not going to do that.[88] KB noticed afterwards that there were red finger marks around her wrist.
[88] TS 91.
The Taldra House
KB gave evidence of one occasion when the family were living at Taldra when the accused assaulted her by pulling her to the floor and choking her.[89] KB said she was not feeling well one day, and the accused kept physically pushing her ‘playing around’. When he continued despite her asking him to stop, she pushed him back. Mr N pushed KB to the ground, and placed his hand around her throat, squeezing and making it difficult to breathe. Ms T was sitting on the lounge when this unfolded and she told Mr N to stop. This occasion is charged as Aggravated Assault, Count 2.
[89] TS 76-77.
Apart from this incident, KB said there were other occasions when Mr N would playfight, although she expressed doubt that it was genuine playfighting, because of the force that he used, kicking her, pulling her hair, and punching her in the leg.[90] She said that the more annoyed she became with Mr N, the more excited he became. He became rougher and rougher until she cried.
[90] TS 77.
SB’s Evidence of assaults
SB gave evidence of an occasion he witnessed when Mr N became angry with another of the children when he talked back to Ms T. Mr N pushed the child up against the wall. SB said that no-one in the house really wanted to disobey Mr N in the house.[91] SB also observed Mr N assault KB during arguments. He said that Mr N would pull KB’s arm, so she fell down into his lap. He saw this kind of physical contact “a few times”.[92]
[91] TS 416.
[92] TS 413.
The evidence of Mr N assaulting Ms T, KB and another child has a permissible and impermissible use pursuant to section 34P of the Evidence Act. I direct myself that the permissible use, if I accept the evidence, is to inform KB’s reaction to Mr N’s sexual requests. It is relevant to whether she could be expected, in all the circumstances to resist, and why she may have submitted. I also consider that the evidence of SB, that no-one wanted to disobey Mr N, is relevant to the circumstances in which the family lived, and the power which Mr N held within the family. They are matters that are relevant to assessing the plausibility of KB’s account of sustained sexual abuse. I do not use that evidence for any other purpose.
I do not infer that Mr N was a violent man or had a generalise tendency to offend against members of his family.
The objective evidence of KB’s residential history
Mr N said in evidence that prior to his relationship with Ms T he was in a relationship with Ms Saxby. They had a child together. He claimed that at the start of 2016 he moved into Ellis Street Lochiel, with Ms Saxby, and their children. He said that the relationship with Ms Saxby ended at the start of 2017. Ms Saxby moved out of the house at Easter of that year. He met Ms T and her children a very short time thereafter, and she and her children moved into Ellis Street Lochiel in May 2017. If his evidence on this issue is to be accepted, then KB’s evidence that he sexually abused her before she got her first period at Ellis Street Lochiel and that his sexual abuse of her was linked to her being taken to the Doctor for a contraceptive prescription in 2016 could not be true.
Ms Olds, a long-time friend of Mr N, gave evidence which was relevant to the date on which the relationship with Ms Saxby ended. Ms Olds and her husband lived in Whyalla and gave evidence that Mr N and Ms Saxby would frequently visit Whyalla. She recalled that Mr N and Ms Saxby had visited with their children as a family in February of 2017. Her memory was jogged by a text message sent by Ms Saxby to her just after they had left to advise that they had arrived home safely.[93] In cross examination Ms Olds confirmed that on the February 2017 weekend Mr N and Ms Saxby behaved as a couple, holding hands and sleeping in the same room together.
[93] TS 732, Exhibit D29.
Evidence from KB and Melissa T suggested however that Mr N and Ms T were in a relationship when they moved together to stay in a town near Port Fairy in Victoria. Their evidence was supported by a letter tendered by consent from the Port Fairy Consolidated School confirming that both Mr N’s children and Ms T’s children were enrolled between 27 January 2016 and 11 April 2016. Further, motor vehicle registration details recorded Mr N residing at Ellis Street Lochiel from 2 June 2016 and Ms T from 14 July 2016.[94] There can be no doubt, in light of that evidence, that at the start of January 2016, when KB was 11 years of age, Mr N and Ms T were in a relationship with one another and were living together with the children as a family.
[94] P 24.
Mr N said in his evidence that he and Ms T and the children did move to Victoria to stay with Melissa T in Koroit, a small town near Warrnambool.[95] He said this move was after the family had been living at Taldra (August 2017). He said they stayed only a few months because he moved the family for a new job he obtained at a timber mill, which he left after only a few months because he did not like it.[96]
[95] TS 602.
[96] TS 602.
I reject Mr N’s evidence that his relationship with Ms T did not begin until mid-2017, and that he was in a relationship with Ms Saxby until that date. I reject his evidence that he and the family lived in Victoria in 2017. There is strong evidence that Ms Saxby and Mr N visited Ms Olds in February of 2017. I do not consider that this evidence is sufficient to overcome the evidence that I have referred to above that establishes that their relationship was on foot from early 2016 at least. It is not necessary to speculate about the nature of Mr N’s relationship with Ms Saxby at the time they visited Whyalla together in 2017.
KB gave evidence that there was a period of time when Ms T took her children and moved first to her mother’s house, then to an address at Nineteenth Street Renmark. The act of sexual abuse alleged to have occurred at those premises is described earlier. Housing SA data records Ms T’s address as 16 Nineteenth Street Renmark from 13 April 2016, suggesting that she moved there after the family came back from Port Fairy (school enrolment at the Port Fairy school ending on 11 April 2016). This sequence gains further support from KB’s school enrolment records which have her attending Renmark Primary School for a short period from 2 May 2016 to 9 June 2016.[97]
[97] P25.
School attendance data then records KB as attending Balaklava Primary School from 14 June 2016 to 12 May 2017. This coincides with Ms T and her family moving to 24 Ellis Street Lochiel around 14 July 2016, the date that address is recorded in Ms T’s motor registration records.
I am satisfied from the evidence described above that Mr N and Ms T were in a relationship with one another, living in a blended family with their children from at least the start of 2016 when they stayed together at the home of Melissa T in a small town near Warrnambool, and their children attended the Port Fairy Consolidated School. I note that this conclusion is consistent with the evidence of SB who recalled that the first place he lived with Mr N and his children was either in the town near Warrnambool, or Ellis Street Lochiel.[98]
[98] TS 432.
I am satisfied that thereafter Ms T moved to Renmark with her children, including KB and there was a period of separation from Mr N.
By June 2016 Mr N and Ms T were living together again at Ellis Street Lochiel, with KB attending school at Balaklava.
By May 2017 KB was attending Loxton Primary School, supporting the conclusion that there had been another move for the blended family. Mr N gave evidence that after Ellis Street Lochiel the family moved to stay with his parents at Monash for about three months. That timing was corroborated by the evidence of Mrs SN, the accused’s mother. Her memory was refreshed by a photo of a shed being erected at the property which Mr N assisted with. Mrs SN said that Mr N, Ms T and the children stayed with them at Monash from May 2017 through to August 2017.
Motor registration data records both Mr N and Ms T residing at 1295 Fogden Road Taldra from the end of August 2017. KB continued attending Loxton Primary School, then Loxton High School until 23 July 2018, when she was enrolled at Whyalla High School. Motor registration records show Mr N and Ms T moving to Loring Street Whyalla from the start of August 2018. Mr N’s friend Ms Olds gave evidence that the family stayed with them in their Whyalla home before they secured housing of their own. Ms Olds was able to pinpoint that time by reference to her wedding on 29 September 2018. At that date she recalled that Mr N, Ms T and the family were transitioning to their new house.[99]
[99] TS 744.
KB remained enrolled at Whyalla High School until 22 July 2019. In August 2019 she was re-enrolled at Loxton High School. Motor vehicle data records Mr N and Ms T residing at 8 Hilltop Drive Loxton from early August 2019, coinciding with the move of KB back to Loxton High School. KB was still attending Loxton High School at the time she left the family in April 2021.
Prior to that time however the family moved house one more time, to a house at Bullwinkle Drive Loxton. Motor registration data for Mr N records this move from 28 March 2019.
KB gave evidence that her recollection of this time in her life was that “we were always moving and we never really got told why.”[100] When she was asked about the sequence and timing of the various moves, she said “moving around and all that was really confusing at times, sorry”, and later “I honestly can’t remember where I first lived with [Mr N]. I remember it being in Lochiel but, as I’ve said, we moved around so much it’s hard to remember when we moved or where we went first”.[101]
[100] TS 83.
[101] TS 298.
The evidence establishes that between 2016 and 2021, when KB was aged between 11 and 16, she lived in at least nine different addresses, and attended at least six different schools. In light of that frequency of moves and changes in her living and educational environment, I accept that her evidence as to the order of the various addresses might be confused. Where her evidence conflicts with the evidence of school records and other business records tendered by consent, I have preferred the timeline established by those records.
I reject the evidence of Mr N that his relationship with Ms T began in May of 2017. I find it proved that it began much earlier than that. Insofar as Mr N relied on the weekend visit to Whyalla to visit Ms Olds in February of 2017 as prior to the time he met Ms T I reject his evidence. Mr N maintained his account even in the face of the evidence of his children’s enrolment at the Port Fairy School at the start of 2016, along with Ms T’s children. He did not concede he might be wrong about the timing. I find that Mr N’s evidence on this topic was a lie told deliberately to obfuscate the fact that he had contact with KB when she was as young as eleven years old.
Mr N gave evidence that each move was necessary because he obtained work that was more favourable than the last job. It is not necessary for me to determine why the family moved and I draw no inference against either accused from the frequently with which they moved, causing the children to change schools so often.
Mobile Telephone Electronic Analysis
Expert Evidence
Mr Samuel Bruce holds specialist qualifications in digital forensics. He was formerly employed by SA Police as a digital forensics investigator. In that role he extracted and analysed data from Apple iPhones seized from each accused.[102] He gave evidence that required expert knowledge in his specialist area of expertise as to the interpretation of electronic messages located on each device, and the thumbnail photographs stored on Mr N’s device.
[102] TS 476.
There was no dispute that the witness was properly qualified, and his evidence did not appear to be controverted or disputed by either party. Understanding that the facts are a matter for me, I consider that he was properly qualified to give the evidence that he did, and I accept the opinions he expressed about the data associated with the electronic messages, and the thumbnail photographs.
The text messages
A series of text messages recovered from the mobile telephone seized from Mr N were tendered as P6. The messages recorded three series of messages sent between an e-mail address registered to Mr N and KB’s mobile telephone number.
The first series were sent and received on 7 April 2021 between 10.16 pm and 10.18 pm. The recovered data records the following exchange:
From
To
Message
Mr N
KB
Are u going to sleep
KB
Mr N
Yeah, y
KB
Mr N
Trying anyways
Mr N
KB
Was going to see if u wanted to have some us time
KB
Mr N
Maybe not tonight, still a bit sick and hoping to try and get some sleep tonight. Love u
The second series were sent and received on 8 April 2021 between 8.10 pm and 8.37 pm.
From
To
Message
Mr N
KB
What are u doing
KB
Mr N
Laying in bed, dying and dozing off
Mr N
KB
Can I come and cuddle you
KB
Mr N
I don’t care, just let me doze off if u do
Mr N
KB
OK
Mr N
KB
Are u still up
KB
Mr N
Yes
Mr N
KB
Can you come here I really need to talk to you
The third series were sent and received on 24 April 2021 at about 9.08 pm and 9.14 pm.
From
To
Message
Mr N
KB
Do u want to come snuggle
KB
Mr N
I’m eating and watching a movie
Mr N
KB
OK what about when u finish eating
KB
Mr N
Idk
Mr N
KB
OK u really don’t want anything to do with me anymore do u
Mr N
KB
I understand if u don’t but please let me know
KB
Mr N
I just want some alone time, that’s all. I need to think
Mr N
KB
OK then I understand
KB explained that the messages were all exchanges between her and Mr N. She said that the references to “us time” and “cuddles” involved sexual activity, and the messages were examples of the accused texting her when they were both in the house together to request contact of that kind.[103]
[103] TS 119.
KB explained that by the end of April 2021 she was beginning to try and separate herself from Mr N, so she gave deliberately vague answers to his sexual advances.[104]
[104] TS 120.
The last series of texts were exchanged on the evening of 24 April 2021, which was when the family were camping at Martin’s Bend. It was just the following day, 25 April 2021 that KB called Melissa T and left the family for good.
Mr N gave evidence about these text messages. He admitted that he had sent the messages, but denied that they had been intended for KB. He claimed that they had been intended for Ms T and were sent to KB’s number because he believed that Ms T was using KB’s number during each period of time.[105]
[105] TS 632-633.
Mr N said that Ms T’s phone was regularly broken, and for a time it had a cracked screen which stopped it working. When that occurred, KB would lend Ms T her phone. He said he had a ‘vague’ memory of the text messages which appeared between 7 and 8 April 2021. He said that the final series, on 24 April 2021 were sent as a result of he and Ms T having an argument.[106] He denied that the words ‘love you’ were a part of how he typically interacted with KB.
[106] TS 635.
In cross examination by counsel for Ms T, Mr N said he specifically remembered the period over which the three chat series were recorded.[107] He was asked to examine a document which was later proved to be telephone records extracted from the mobile telephone seized from Ms T.[108] Those records contained text messages sent between the mobile telephone belonging to KB and that belonging to Ms T. The records showed texts between those numbers fairly regularly throughout April 2021, including on 24 April 2021.
[107] TS 673.
[108] D28.
When this evidence was pointed out to Mr N he accepted that he may be wrong about Ms T having a broken mobile phone on the dates he previously claimed. He then said he had assumed Ms T’s phone was broken rather than having a specific recollection because he knew he would not have sent such messages to KB. He repeated this concession in cross examination by the prosecutor.[109]
[109] TS 707.
I found Mr N’s evidence on this topic unconvincing. I reject his evidence that he sent the texts shown in Exhibit P6 to KB’s mobile number, believing the phone to be in the possession of Ms T.
I consider a plain reading of the text messages in each of the three sequences reveals Mr N making sexual overtures to KB, with the words “us time”, “cuddle you”, “come snuggle”. These are circumstantial evidence of Mr N attempting to arrange opportunities for physical contact with KB. I consider them important pieces of circumstantial evidence which support KB’s evidence about the nature of his approaches towards her, and his requests for cuddle time, us time and snuggles. I have used those messages in the case against Mr N but not against Ms T.
A second set of text messages were tendered which were extracted from a mobile phone recovered from Ms T. The following exchange was recorded on 3 April 2021:
From
To
Message
Ms T
KB
Have you ever said anything about what you an [sic] [Mr N] did
Ms T
KB
KB
KB
Ms T
No. Y [why]
Ms T
KB
Asking cos something that was said
KB
Ms T
What was
Ms T
KB
Kayla said something about it to mell apparently [Mr N] said but don’t believe him
KB
Ms T
What did Kayla say, u know I wouldn’t tell anyone
Ms T
KB
I know but he recommended [sic] she did
KB
Ms T
What about, what do u mean
Ms T
KB
Talk later
KB
Ms T
Okay
KB said that these messages were an example of Ms T asking her if she had disclosed the sexual abuse by Mr N. She said her mother frequently asked her the same question, each time referring to the sexual abuse. Kayla was a reference to Aunty Kayla, Ms T and Melissa T’s sister. I accept KB’s evidence about the text messages.
KB was cross examined about the messages. It was suggested that the messages coincided with a night that KB had been drinking alcohol with Mr N and other adults and she became very drunk. KB denied that was what was being referred to was the drinking.[110]
[110] TS 315.
I consider that the text messages are a piece of circumstantial evidence relevant to whether Ms T was aware of Mr N’s sexual abuse of KB. It bears of the probability of the behaviour alleged against her, because if she was aware of the sexual abuse, then that supports the evidence of KB that she was present for some incidents. I have not used those text messages against Mr N for any purpose.
The photos
A series of photographs located during the electronic analysis of Mr N’s mobile telephone were tendered. The photos were located as thumbnails which are a remnant record of a photograph that has been previously stored on the phone. It did not reflect the photo itself being stored on the phone.[111]
[111] TS 481-482.
The photos were identified by KB as images of her taken at the Bullwinkle house on a single occasion. She appears to be wearing the same pair of denim shorts in each photograph. KB said did not know that the photos had been taken.
The prosecution relied on the photos as evidencing a sexual interest in KB, which could be used as a piece of circumstantial evidence to bear on the probability that Mr N committed the sexual offences charged.
After a voir dire argument I ruled that the images were admissible as capable of showing a sexual interest in KB.
Having now heard further submissions on the topic and having carefully considered the evidence of their location in the electronic data, I do not consider that the images have the capacity to demonstrate a sexual interest in KB. While they appear to focus on KB’s legs and buttocks, they are not photos that of themselves evidence a sexual interest, especially in circumstances where it cannot be proved that they were retained or saved in the mobile phone camera roll. I have not used the photographs therefore for any purpose and I disregard P7.
Opportunity
Mr N’s evidence about opportunity
In his evidence, the accused Mr N outlined features of the houses and the way that the family lived that limited the opportunity he had to offend in the way, or at the frequency, alleged.
Mr N said that while the family were living at Ellis Street Lochiel, his work required him to be away from home from 6 am on Monday through until Friday afternoon. He said he had no time off or sick leave which would have enabled him to be home during the week.[112]
[112] TS 609.
At Monash he described the sleeping arrangements, agreeing with KB’s evidence that at the beginning he shared a two-room tent with Ms T and KB.[113] Thereafter he said, the family all slept in the converted bus, with KB on one of the bunk beds. He said the bus was parked close to the house and was easily seen from the house.
[113] TS 610.
During that period of time the accused said he was working at a wine producer as a forklift driver, requiring him to work from 12pm midday until 11 pm Monday through to Friday.
When the family moved to Taplan his work hours remained the same at first. He then moved jobs to Pickering Transport which required him to work 6 am to perhaps 7 pm at night, depending on when the work for the day was complete.[114]
[114] TS 618-619.
Once he moved to Whyalla the accused said he was again driving trucks, working shifts between 7.30 am until 5.30 pm at night. He would also work some weekends doing furniture removal work.
The accused said once he moved to Loxton, he was regularly working long hours starting at 5 or 6 am and not finishing until 8 pm. For a period of time he was also covering night shifts.
Mr N also said he was active in the CFS for a period of time and that occupied him away from the house on Monday evenings.[115]
[115] TS 640-641.
In December 2020 Melissa T and her young children came to stay at the Bullwinkle property with the accused. Melissa T slept in a caravan outside and the children shared rooms with the children of the family. Mr N said that Melissa T’s daughter also slept in the caravan, but also sometimes in the bedroom with KB. He said that was particularly so once Melissa T obtained nursing work on a night shift, and no-one was in the caravan overnight.
Mr N denied that he was ever in KB’s bedroom with the door closed. He agreed that he spent time in her room, watching movies or playing the Wii sport.[116] During those times he said KB’s brother SB would frequently come into the room. He maintained that the door to her room was always open when he was inside. Mr N said that KB would often come into the bedroom that she shared with Ms T, as would other children. The children would watch movies, do puzzles and other activities. He described it as “like Rundle Mall sometimes”.[117] He said the only time that the door to their bedroom would be closed was if he and Ms T were having intimate relations, and the door would always be closed if that were occurring. He denied having intimate relations with Ms T anywhere in the house but their bedroom, and never in the presence of another person.[118]
[116] TS 642-643.
[117] TS 644.
[118] TS 647.
Evidence of SB about opportunity
SB gave evidence of his observations of his sister KB spending time in Ms T and Mr N’s bedroom. SB said KB was in that room almost every night after she had cooked them dinner. He recalled that the kids would get their own dinner, but KB often cooked a meal for Mr N and Ms T. During those times, the door to the room would be closed, although sometimes it was open.[119] He would knock before he entered and there were occasions when he was told not to come in or to come back later. That was rare.[120] SB said he also spent time in Mr N and Ms T’s bedroom at the various houses.
[119] TS 406-407.
[120] TS 407.
SB gave evidence that he saw Mr N in KB’s bedroom when they were living in the house at Bullwinkle Drive. He said the door was mainly shut when they were in the room together.
SB described one occasion when he walked into KB’s bedroom having opened a closed door and she and Mr N were laying on her bed together. Mr N was laying behind KB propped up on his arm. Mr N’s hand was resting on KB’s leg. SB left the room and went and told Ms T about what he had seen. Ms T simply nodded ‘yes’ and took no other action. In cross examination SB conceded it was possible he thought he said something to Ms T but in fact he had not.[121]
[121] TS 451.
SB agreed in cross examination that there were times he went into KB’s room and joined her and Mr N watching a movie or playing a game. He agreed that there was no pattern to when he would go to KB’s room, and as far as Mr N was concerned, it could be at any time.[122]
[122] TS 441.
A fact was agreed that 4 of the children, apart from SB and KB that were living in the house at relevant times were interviewed by a prescribed interviewer. None of them described having witnessed any sexual misconduct.[123]
[123] Agreed Fact 4, P25.
Conclusions about Opportunity
Defence counsel argued that the allegations made by KB of regular and protracted sexual abuse was inherently unlikely given the fact that there were so many children living in the house, and they could come into either KB’s bedroom, or the bedroom shared by the accused at any time. It was argued that the fact that there was never any near misses or interrupted encounters makes KB’s account unbelievable. Defence further submitted that Mr N’s evidence about his significant work commitments outside the home made the frequency of offending alleged unlikely.
I reject Mr N’s evidence that the door to KB’s room was always open when he was inside with her. I similarly reject his evidence that the door to his bedroom was closed only when he and Ms T were being intimate with one another. His evidence is inconsistent with the evidence of SB who was plausible and credible on this topic.
The evidence of SB established that there was nothing unusual about Mr N being in KB’s room with the door closed. The evidence of SB was that there were occasions when the door to Mr N and Ms T’s bedroom was closed, and he would be asked to go away or come back later.
I place little weight on the accused’s evidence that doors would always be open. This is because it is inconsistent with the evidence of KB and SB. Further, for reasons that are explained throughout these reasons, I find that Mr N told deliberate lies in his evidence, and I am cautious about accepting his evidence except where it is corroborated by other credible evidence. For that reason, I do not consider his evidence about his work commitments limiting his opportunity to offend convincing against other evidence I find convincing and plausible.
The sexualised environment
The prosecution relied on a number of pieces of evidence to support the conclusion that the home environment was sexualised, and that was relevant to how KB may or may not have responded to the acts of sexual abuse. The evidence included that Mr N, with the knowledge of Ms T, showed children pornography (the evidence of SB), that Ms T walked around the house naked and urinated off the balcony (evidence of SB and Melissa T) and evidence of Mr N flipping up Ms T’s skirt in the presence of the children to reveal she was not wearing underwear (evidence of SB).
I consider this evidence is discreditable conduct evidence and must meet the conditions for admissibility set out in section 34P(2)(a). I am satisfied that the probative force of the evidence outweighs its prejudicial effect, and that its permissible use can be kept separate and distinct from the impermissible use.
The permissible use is that the behaviour contributes to the picture painted by the evidence that KB was living in a highly unusual family environment. The family frequently moved houses and towns, never staying long in one regional town. KB shouldered the domestic burden of cooking for and attending to her mother Ms T who on occasion texted her when she was in the same house to summons her. Text messages shows Ms T making requests of her daughter KB for money and asking KB to buy the family take away for dinner.[124] The sexualised behaviour is also relevant to that overall picture, against which I must assess the plausibility of KB’s evidence about her response to the abuse alleged. I have only used it in that way.
[124] D28.
I identify the impermissible use. I may not use that evidence of sexualised behaviour as evidence that either accused is of bad character and therefore more likely to have offended in the way alleged. I have not reasoned in that way.
The prescription of the Oral Contraceptive Pill
As set out above, evidence of three doctor’s appointments at which KB was prescribed the contraceptive pill was led. KB said that during the time she lived with Ms T she did not have a boyfriend. The first prescription was obtained when KB had just turned twelve years old. She was taken to the Doctor by her mother Ms T, who sought the oral contraceptive pill, saying that KB was sexually active. The pill was prescribed to twelve-year-old KB. KB told the Court she was only sexually active to the extent of being a victim of abuse within the family. The second appointment was in October 2017 when KB was 13 years of age when she was taken to the appointment by the accused Mr N. The statement of Dr Yaing records that he telephoned Ms T during the consultation and was told that the pill was to control heavy periods.[125] Dr Yaing provided a prescription for one month only. The third appointment was just a month after the second and was attended by Ms T and KB. The medical notes record that the Doctor was told at that appointment that the purpose of the prescription was a “combination of cycle control and contraception”.[126]
[125] P22.
[126] P22.
KB’s evidence was that a condom was never used by Mr N during acts of penetrative intercourse.
Mr N told the Court that he took KB to the Doctor’s appointment not knowing what its purpose was. I consider his evidence unlikely in the extreme, and coupled with my conclusion that he told lies during his evidence, I am not prepared to give any weight to his evidence on this topic.
There was a further inconsistency identified by defence counsel on the topic of anal penetration. KB said in evidence that the first and only time that an act of that kind occurred was at the Monash property. KB agreed however that in her statement she told police that anal penetration began while she was living at the Taplan address. She agreed that in describing the matter in that way she was indicating that the act occurred more than once.
KB said she now only had a specific recollection of one incident of anal touching, which occurred at Monash. She said that the contents of her police statements reflects a clearer head that she now has. In answer to a question about the truthfulness of her evidence she said “no, what I put in my statements are all true. The fact that I can’t remember every specific thing today is under a lot of stress [sic] and with these questions getting thrown my way confuses me and doesn’t make me have a clear head of what I am saying”.[148]
[148] TS 221.
Defence counsel submitted that KB’s delivery of this answer smacked of a practiced response and exposed her as having pre-rehearsed a remark to rebut criticisms of her evidence. I did not consider that the witnesses delivery supported that conclusion. The witness was frustrated and had exhibited a level of confusion about the references to prior inconsistent statements and the complexity of going back and forth between statements and evidence. I do not accept that characterisation of her evidence in that moment.
KB also mentioned for the first time in the statement in February 2022 the incident she described at Whyalla involving her wearing a blue silk nightie. She explained that her disclosure resulted from questions she was asked about specific incidents she could recall occurring at Whyalla. I accept her explanation and, in light of the nature and extent of the allegations overall, I do not consider that the failure to earlier describe that specific incident undermines the credibility or reliability of her evidence.
Finally, KB agreed that she failed to mention that Mr N had shown her pornography, or that she had witnessed Mr N touch Ms T indecently in the car, and saw Ms T performing fellatio on Mr N. These matters were first disclosed in a statement in February 2022. KB explained that those things simply did not come up in her mind at the time she gave her other statements.
For the reasons outlined above, I do not accept that these matters undermine KB’s credibility and reliability as to the elements of the offences. I do not consider that a capacity to provide each and every detail in the first statement necessarily reflects a more credible or reliable report. I would expect a child recounting her experiences over a lengthy period to recall greater detail over time once those matters are disclosed and discussed. The inconsistencies are not so significant in the context of the evidence overall that they cause me to doubt her evidence.
Plausibility of the Narrative
KB’s account of the first episode of sexual abuse was that she was recruited by Ms T to submit to full sexual intercourse when she was in her pre-teen years. Defence counsel suggested that this narrative, with no evidence of grooming or introductory activities to make her amenable lacked plausibility and undermined the acceptability of her evidence. The knowledge and involvement of KB’s mother Ms T in the activities over time, it was argued, was so incredible as to be incapable of belief.
There is no usual established pattern or trajectory for sexual abuse of a child. Many adults who abuse children will groom a child to first become accustomed to more minor sexual acts before they move to more serious conduct. That is not always the case. Where the first act is committed with the knowledge and co-operation of the child’s mother, grooming to secure co-operation and silence may not be necessary.
In considering KB’s reaction to the first act of abuse, her acquiescence in what she was asked to do, and her continued co-operation, it is important to consider that she was a child who had previously been abused by others, including her biological father. Her response must be assessed in that light.
I do not find anything inherently surprising or implausible about the way the sexual abuse was alleged to begin or continue, or the lack of grooming conduct that was included in the narrative she provided in evidence.
KB’s Telephone Records
Records downloaded from KB’s telephone were tendered as Exhibit D20. The downloaded text messages contained very few messages, and no messages containing any narrative (they were restricted to auto notifications of missed calls and other automated notifications). The date and time range was restricted from 18 June 2021 to 12 July 2021, a period after KB left the family home.
By reference to the data from mobile phones seized from Ms T and Mr N, defence counsel argued that relevant data was missing from KB’s phone (messages to and from KB recovered on each of those phones were not recovered from KB’s phone). Defence counsel argued that this absence of records suggested that her telephone had been tampered with, by KB or someone else, to delete data recording her relationship with Mr N and Ms T. The mobile telephone was handed to Detective Kennedy by KB’s uncle on 11 October 2021, months after this matter was first reported to the police.[149]
[149] TS 469.
The suggestion of tampering was put to KB in cross examination. She said she was unaware that only 12 messages were recovered from her mobile phone. She denied that she had deleted any messages.[150] Detective Kennedy gave evidence that the chart P20 contained all the messages stored on the mobile phone that was provided to the police.[151]
[150] TS 239.
[151] TS 469-470.
I do not draw the inference that someone deleted data from KB’s mobile phone with an intent to hinder the police investigation. In respect to messages between Mr N and KB, and Ms T and KB, the contents of each of their phones was downloaded by police investigators.[152] Messages between KB and each accused were tendered in the trial. Those messages support KB’s account of the nature of each accused’s behaviour. It defies logic that she, or someone else, would delete those messages from her mobile phone as part of a scheme to hinder the investigation. It is not possible for me to determine why the phone provided to police did not contain a more extensive record of messages.
[152] TS 476.
Forensic Disadvantage
Defence counsel argued that the passage of time between the alleged offending and the trial has resulted in a forensic disadvantage. It was submitted therefore that I should direct myself in accordance with the requirements of section 34CA of the Evidence Act. Three specific matters were relied upon in this respect.
The first is that Ms Saxby, Mr N’s previous partner could not be located. Mr N gave evidence that he attempted to message her on Facebook messenger (a electronic message service), but received no response, and that his sister knocked on the door of her house and received no response.[153] I do not consider that the evidence establishes that Ms Saxby could not be located. There was no request for the assistance of the police to locate her, or the use of formal methods such as a search of the electoral roll. The evidence was that her home address was known, but there was no attempt to serve a subpoena. I do not consider that it has been demonstrated that Ms Saxby’s absence is due to the passage of time rather than insufficient effort being applied to locating her. I do not draw any inference from the fact that Ms Saxby was not called.
[153] TS 826.
Secondly, and to a lesser extent, defence counsel relied on the submission that text messages may have been deleted from KB’s mobile telephone. Such messages he argued, may have shown the relationship between KB and each accused in a different light. I am not satisfied that this loss has been occasioned by the passage of time or that it has resulted in a significant forensic disadvantage. Text messages between KB and the two accused would have been available on their phones. No evidence was called to suggest that electronic records of that mobile phone data was unavailable or corrupted in some way. In those circumstances I am unable to conclude that either accused suffered a significant forensic disadvantage.
Finally, a statement from Dr Strachan was tendered pursuant to section 34KA of the Evidence Act. By the date of trial, she had passed away. Defence counsel argued that a significant forensic disadvantage arose from their inability to cross-examine her. I note that Dr Strachan’s evidence was in the form of a police declaration with attached notes made proximate to the time of the consultation. In her police statement she says “unfortunately, as this was 2016, and I have seen probably thousands of patients since then, I can’t pretend to have any useful recall of the appointment”.[154]
[154] P 21.
I do consider that the absence of Dr Strachan has the potential to give rise to a significant forensic disadvantage. I have taken into account that neither defence counsel were able to cross examine her. Her notes were available however, and her statement was comprehensive. The disadvantage was of a restricted scope, and related to one piece of circumstantial evidence, the use of which I have discussed elsewhere. I have taken into account the disadvantage involved in the fact that that counsel were not able to test the case by cross examining her on the specific details of the consultation attended by KB and Ms T when the contraceptive pill was first prescribed.
Motive to Lie
Counsel for Mr N argued that there was a motive for KB to have lied about the allegations. He pointed to evidence that there are a number of people in KB’s world who positively disliked Mr N, including Melissa T who had care of KB immediately after she left the family through until shortly before the trial. Counsel for Ms T argued that ill-will held by Melissa T provided a motive to tell deliberate untruths. It was argued that Melissa T had a great deal of influence over KB, and against that background, KB may have been influenced to fabricate allegations.
Melissa T, in her evidence, admitted that during a period of time when she lived with the accused at Bullwinkle Road, Loxton she had a sexual relationship with Mr N. Mr N and Melissa T both gave evidence that the sexual relationship began and continued with the knowledge and consent of Ms T.[155] Melissa T said it was over a limited time and she ended it. She was separated from her husband at the time, and when she reconciled with her husband, she did not tell him about her relations with Mr N.[156]
[155] TS 388-389.
[156] TS 380.
On 2 April 2021 a family gathering was held which was attended by both accused and Ms T’s sisters Melissa T and Kayla. A dispute arose and Kayla assaulted Mr N by punching him to the face. The evidence was that Kayla had never liked Mr N. Melissa T denied that she held any ill will towards Mr N regarding the end of their sexual relationship.
Counsel for both accused argued that Melissa T’s failure to disclose the fact of her relationship with Mr N in any of her police statements or in her examination in chief can be characterised as withholding relevant information and reflects poorly on her credit.[157] Counsel for Ms T proffered a potential motive to lie on behalf of Melissa T as to help the complainant and take heat off herself in light of the family issues caused by her sexual relationship with Mr N.
[157] TS 951.
I do not consider that the motive submitted by either counsel was plausible. Melissa T did not strike me as having vindictive motives or actively attempting to conceal the truth. Her failure to disclose her relationship with Mr N is explicable in the circumstance and to my mind does not reflect poorly on her credibility.
Having rejected a potential motive to lie I remind myself that the absence of a motive to lie is neutral and adds nothing to the standard or quality of the evidence called on the prosecution case. The absence of a plausible motive to lie is irrelevant. People lie for all kinds of reasons, and I do not treat the evidence of KB as more plausible because I have rejected the posited motive to lie.
The Evidence of Mr N
Mr N gave sworn evidence in his own defence. I have assessed his evidence in the same way that I have the evidence of every other witness. Mr N’s evidence was unsatisfactory in several respects. I find that he told deliberate lies in the course of his evidence, and I have used those lies when I have assessed what weight I am prepared to give his evidence overall. I have not used the conclusion that he told lies in any other way.
As outlined earlier, I conclude that Mr N gave false evidence in respect to the text messages P6, claiming that he had intended to send them to Ms T during a period that she was using KB’s mobile telephone.
I further conclude that he told a deliberate lie about the time at which his relationship with Ms Saxby ended, and the relationship with Ms T began. That topic is analysed earlier. I do not consider that his evidence, when viewed against the objective records, reflects the truth. I do not consider his evidence is the result of a genuine error. He maintained his version of events even in the face of the objective evidence including the letter from the Port Fairy School D27.[158] The lie relates to an important issue – when the relationship with Ms T started and whether he even knew KB at the time she alleged the sexual abuse began (including the date she was first taken to the Doctor and prescribed the contraceptive pill).
[158] TS 664-665.
Mr N gave evidence that he suffered a hernia at the end of 2020 which was surgically repaired at the start of 2021. He claimed that he was unable to engage in sexual intercourse as a result.[159] He said his hernia meant that he “couldn’t really do it, to be honest”.[160] In cross examination, the fact of his sexual affair with Melissa T during this period was put to him. [161] He then accepted that before his hernia surgery, he could have sex, although it was very difficult.[162] He maintained that the sexual act was difficult because of pain in his groin. This was different to his claim in examination in chief that he was unable to engage in intercourse at all. I consider this to be a lie told on an important issue, that is, his capacity at a particular time to engage in acts of sexual intercourse.
[159] TS 626.
[160] TS 650.
[161] TS 650.
[162] TS 701.
Mr N gave evidence that every time that he was in KB’s bedroom her door would remain open. He was adamant about that proposition, denying the door would be closed even to keep out noise while they watched a movie.[163] Mr N was equally adamant that the door to the bedroom that he shared with Ms T was never closed if KB was inside. He claimed that except for occasions when they were being intimate or the children had friends over, their bedroom door would never be closed at all.[164]
[163] TS 787.
[164] TS 789.
That account was in contrast to the evidence of SB, KB’s brother. He said, and I accept, that the door to the accused’s bedroom was sometimes closed when KB was also inside, and the door to KB’s bedroom when Mr N was inside was often closed.[165] SB told the Court of a specific occasion when the door to KB’s room was closed, and when he opened it he found Mr N and KB lying on the bed together.[166]
[165] TS 408, 409.
[166] TS 411-412.
I reject Mr N’s evidence on the topic of doors being open at all times. It is inconsistent with the evidence of SB who was able to give both general and specific evidence of the topic. I consider that Mr N told a deliberate lie on this topic and I have used that conclusion to reflect generally on his credit.
I found Mr N’s evidence generally unimpressive. He denied he had, at any time, teased or taunted KB, called her names or laid his hands on her in an act of discipline. When asked if there was any negative side to the relationship he said “maybe a verbal argument but other than that nothing”.[167] He agreed with the proposition put in cross examination that he was “pretty much the all round perfect dad towards her”.[168] His refusal to acknowledge any negative aspect of his relationship with KB lacked believability when viewed against the evidence of KB and SB.
[167] TS 749.
[168] TS 749.
I have been cautious about relying on the evidence of Mr N except where it was specifically supported by evidence that I found plausible and acceptable.
Having rejected much of his evidence, I record that I have not used that rejection as enhancing or adding to the evidence called on the prosecution case.
Separate Consideration
I have considered the evidence relevant to each count separately. Some of the acts alleged against the accused were committed by them jointly, and some by inciting or procuring behaviour involving the other.
Evidence was given by KB that she believed Ms T referred Mr N to her for acts of intercourse when she was not interested.[169] KB said she had heard those statements being made on more than one occasion. I have not had regard to that evidence as proving incitement or the procuring of a specific sexual act which followed. This general evidence of ‘referral’, along with the presence of Ms T during some sexual acts, is relevant to why Mr N was able to act so brazenly with his sexual abuse of KB. If KB’s mother, the only other adult in the house was aware of, and complicit in, the abuse then as a matter of common sense, less caution and less discretion would have been required. I have not used that evidence in any other way.
[169] TS 49-50.
As I have noted earlier, I have used the text message evidence only against the accused said to be responsible for those messages.
The secret relationship
Counsel for Ms T argued that there was a conflict of logic in the evidence of KB. KB said that sometimes she heard Ms T sending Mr N to her for sexual acts, and other times Mr N appeared to be abusing her in secret, asking KB not to tell Ms T about what they were doing. KB was asked the following in cross examination:
Q: I’m suggesting to you that there was never any sexual activity with mum.
A: I disagree, there was.
Q: And that you were very secretive about your activities with [Mr N], because he asked you to be.
A: Yes.
Q: And that mum would have been furious if she had known what was happening.
A: I wouldn’t know how she would react, considering she encouraged it when it all started.
Q: If mum was so encouraging, why didn’t you tell her what [Mr N] was doing.
A: Because as a young girl when you’re told not to tell anyone that, you do as you’re told.
Q: Did you ever try to tell mum.
A: I can’t remember sorry. I remember there were times that I wanted to tell her, but I can’t remember if I ever did.[170]
[170] TS 295.
Counsel for Ms T argued that the evidence supported the conclusion that Mr N was abusing KB without Ms T’s knowledge.
I acknowledge that the evidence of KB does disclose her being the victim of two quite different approaches within the family. The first category involved Ms T being physically present, sometimes verbally encouraging and sometimes physically participating. The second category involves activities with Mr N alone. These acts were presented by Mr N as a secret to be kept from Ms T and other family members. These acts occurred in KB’s bedroom, and in outdoor locations away from the house.
It is not possible to understand the precise logic for the dual approach. It is necessary though to consider whether that aspect renders the evidence illogical and defying common sense. I have not reached that conclusion. The absence of a rational reason for Mr N to adopt that dual approach does not undermine the conclusions I have reached about the credibility and reliability of KB’s evidence, when looked at overall.
Conclusion: acts found proved
The Lochiel House
For reasons that I have earlier outlined relating to KB’s errors in the sequence of houses, I am unable to find proved the incident described as the first time she was abused sexually, an incident she recalled occurring at the Lochiel house.[171] This is because I cannot be satisfied that the Lochiel house was the first location where abuse occurred and I have a doubt about where the abuse in fact began. For that reason, I cannot find the specific ‘first occasion’ at Lochiel proved.
[171] TS 34-40.
For the same reasons I am unable to find proved the next incident, described as the second incident, alleged to have involved both accused.[172]
[172] TS 41-44.
I find it proved however that while living at the Lochiel house, Mr N had sexual intercourse more than once with KB, including in an outdoor location near the water tank, and on a mattress inside the shed. These acts were not in the presence of Ms T. I do find that at the Lochiel house there was sexual intercourse occurring on an ongoing basis in various locations as described by KB.
I do not find proved any acts of sexual abuse committed by Ms T at the Lochiel house.
Uncharged Acts in Victoria
KB gave evidence of a general nature only as to what occurred in Victoria. KB said that the first time that she was sexually abused she was living at Lochiel. Objective evidence establishes that she lived at Lochiel after the family returned from Victoria. I am satisfied that the sexual abuse did occur in the caravan in Victoria, in a general sense. This conclusion has a limited purpose, that I have outlined elsewhere.
The Renmark House
I am satisfied that for a period of time Ms T, KB and other children moved to Renmark and lived separately to Mr N. I find the isolated incident described by KB as occurring at Renmark proved against Mr N.
I further find that act proved against Ms T. I find it proved that she procured Mr N to have sexual intercourse with KB on that occasion.
The Taldra House
I am satisfied that Mr N engaged in acts of sexual abuse against KB while living at this house, including vaginal intercourse, causing her to perform fellatio on him, touching her breasts and touching inside and outside her genitals with his hands.[173]
[173] TS 62.
KB described a specific occasion which occurred at the Taldra house where, for the first time, Ms T participated in sexual acts rather than simply being present or offering verbal encouragement.[174] I am satisfied that Mr N and Ms T caused KB to perform an act of cunnilingus on Ms T, as well and kissing and sucking Ms T’s nipple or nipples and penetrating Ms T’s vagina with her finger. I am satisfied that both accused had sexual intercourse with one another in the presence of KB. I am satisfied that Mr N performed an act of cunnilingus on KB and KB performed an act of fellatio on him. KB said that this incident was the only time that both accused participated in sexual abuse of her at the Taplan house.[175]
[174] TS 63.
[175] TS 67.
I find it proved that at this house Mr N engaged in vaginal sexual intercourse with KB in the bathroom, in KB’s room and outside the house. KB gave evidence of a specific occasion in the bathroom that I find proved.[176]
[176] TS 69-70.
I find it proved that Mr N caused KB to view pornography on more than one occasion. I do not find it proved that Ms T caused KB to view pornography. Although I accept that Ms T was present, KB does not describe her saying or doing anything in support of Mr N’s actions.[177]
[177] TS 73-75.
I am satisfied that at the Taldra house Mr N assaulted KB in the circumstances that she described.[178] I am satisfied that at the relevant time KB was a child that regularly resided with him.
[178] TS 76-77.
The Whyalla House
KB described one specific incident which occurred at this house, identified by reference to a blue silk nighty she was wearing. I find it proved that Mr N had sexual intercourse with KB and that Ms T caused or procured that act.[179]
[179] TS 81.
I am satisfied that other acts of sexual abuse were committed by Mr N against KB at this address, including unlawful sexual intercourse and indecent assaults in the bedroom when Ms T was physically present.
The Monash House
I do not consider that the evidence given by Mr N and Mrs SN about the absence of a white Utility from the Monash property undermines my satisfaction that Mr N engaged in acts of sexual abuse against KB at this property.
I find proved the incident alleged to have occurred in a tent pitched on that property where Mr N engaged in sexual intercourse with KB and Ms T attempted to penetrate KB’s anus with her finger.[180]
[180] TS 86-87.
I am further satisfied that Mr N engaged in acts of sexual intercourse with KB in outdoor locations in the absence of Ms T. Mrs SN’s evidence (the accused’s mother) about the dog’s reaction to people walking around at night was unconvincing. Mr N’s own evidence was that he regularly arrived home from work late at night. He gave no evidence about the dog barking and alerting others to his presence.
The Hilltop Road Loxton House
I am satisfied that the acts of sexual abuse, including sexual intercourse continued at this address, with Mr N on his own, and with Ms T present. I do consider that evidence of Ms T merely being present establishes that she procured or incited the conduct of Mr N.
The Bullwinkle Avenue Loxton House
KB described a second act where both accused participated in sexual abuse of her which took place at the Bullwinkle house at Loxton.[181] I am satisfied that on that occasion Mr N caused KB to perform an act of cunnilingus on Ms T. I find that act proved against each accused.
[181] TS 78.
KB described a second specific incident when Mr N took KB outside of the house at night-time and had her kneel on her hands and knees so he could have vaginal sexual intercourse from behind her. She recalled having prickles in her hands after the incident from the veranda.[182] I find that act proved against Mr N only.
[182] TS 95.
KB described the final incident of sexual abuse committed by Mr N against her in her bedroom.[183] I am satisfied that Mr N committed those acts of abuse on that occasion.
[183] TS 96-98.
Findings
The offence of Maintaining an Unlawful Sexual Relationship with a Child requires proof of the following elements:
1.The accused knowingly maintained a relationship with the complainant KB.
2.In the course of that relationship, the accused engaged in two or more unlawful sexual acts with the complainant KB.
3.The complainant KB was a child during the period of the relationship.
4.The accused was an adult during the period of the relationship.
Mr N was KB’s stepfather and acted in a parental role during the period over which the unlawful sexual acts are alleged. I find that he knowingly maintained a relationship with KB. I find that KB, during the relevant period, was under the age of 17 years. KB was born on 12 September 2004. She was under the age of 17 until 11 September 2021, by which time she had left the family home and made the initial complaint about the abuse. Mr N gave evidence that he was 35 years of age as at the date of his evidence. He therefore was an adult over the course of the period that the sexual abuse is alleged.
I am satisfied beyond reasonable doubt that during the period alleged Mr N engaged in two or more unlawful sexual acts with the complainant KB.
I make the following findings in respect to the particulars of count one:
Particular
Finding
Unlawful sexual act
a.
Kissing KB on more than one occasion.
Proved
Section 56(1) CLCA
b.
Touching KB’s breasts on more than one occasion.
Proved
Section 56(1) CLCA
c.
Touching KB’s vagina on more than one occasion.
Proved
Section 56(1) CLCA
d.
Licking and sucking KB’s nipples on more than one occasion.
Proved[184]
Section 56(1) CLCA
e.
Inserting his penis into KB’s vagina on more than one occasion.
Proved
Section 49(3) CLCA
f.
Inserting a finger into KB’s anus.
Not proved[185]
g.
Inserting a finger into KB’s vagina on more than one occasion.
Proved
Section 49(3) CLCA
h.
Performing an act of cunnilingus upon KB on more than one occasion.
Proved (limited to one occasion)[186]
Section 49(3) CLCA
i.
Causing KB to touch his penis on more than one occasion.
Not proved
j.
Causing KB to perform an act of fellatio upon him on more than one occasion.
Proved[187]
Section 49(3) CLCA
k.
Engaging in sexual intercourse with [Ms T] in KB’s presence, namely by inserting his penis into [Ms T’s] vagina on more than one occasion.
Proved
Section 58(1)(a) CLCA
l.
Engaging in an act of fellatio with [Ms T] in KB’s presence on more than one occasion.
Proved
Section 58(1)(a) CLCA
m.
Deleted.
n.
Inciting or procuring KB to kiss [Ms T].
Proved
Section 56(1) CLCA
o.
Inciting or procuring KB to perform an act of cunnilingus upon [Ms T] on more than one occasion.
Proved
Section 49(3) CLCA
p.
Inciting or procuring KB to insert a finger into [Ms T’s] vagina.
Proved (limited to one occasion)
Section 49(3) CLCA
q.
Causing KB to watch pornography on more than one occasion.
Proved
Section 58(1)(c) CLCA
[184] TS 62, 69, 80.
[185] TS 85, 85. The evidence of Mr N’s attempt does not satisfy me to the requisite standard of this particular.
[186] TS 65-66.
[187] TS 56-57, 62, 66, 93-94.
I find the evidence of KB as to the assault committed against her by Mr N honest and reliable as to the elements of that offence. I find the following elements proved:
1. Mr N applied force to KB.
2. The application of force was the result of a deliberate and voluntary act.
3. The physical contact was unlawful.
4. KB did not consent to the assault, and Mr N knew her not to be consenting.
I find the circumstance of aggravation, that Mr N knew that KB was a child who normally or regularly resided with him proved beyond a reasonable doubt.
Ms T was the mother of KB and KB resided with her. I am satisfied that she maintained a relationship with her over the relevant period. No evidence was called about Ms T’s date of birth. KB gave evidence that she was born in 2004. I am prepared to infer from the fact that she gave birth to KB in 2004 that by 2015 Ms T must have been over the age of 18 years.
I am satisfied beyond reasonable doubt that during the period alleged Ms T engaged in two or more unlawful sexual acts with the complainant KB.
I make the following findings in respect to the particulars of count three that I find proved against Ms T:
Particular
Finding
Unlawful sexual act
a.
Kissing KB on more than one occasion.
Proved
Section 56(1) CLCA
b.
Touching KB’s breasts on more than one occasion.
Proved[188]
c.
Touching KB’s vagina on more than one occasion.
Not proved[189]
Section 56(1) CLCA
d.
Licking and sucking upon KB’s nipples on more than one occasion.
Not proved[190]
Section 56(1) CLCA
e.
Inserting her finger into KB’s anus.
Proved[191]
Section 49(3) CLCA
f.
Inserting a finger into KB’s vagina on more than one occasion.
Not proved
g.
Deleted.
h.
Causing KB to lick and suck upon [Ms T’s] nipples on more than one occasion.
Not proved[192]
i.
Causing KB to perform an act of cunnilingus upon [Ms T] on more than one occasion.
Proved[193]
Section 49(3) CLCA
j.
Causing her to insert a finger into [Ms T’s] vagina.
Proved (limited to one occasion)[194]
Section 49(3) CLCA
k.
Causing her to view pornography.
Not proved[195]
l.
Engaging in an act of fellatio with [Mr N] in KB’s presence on more than one occasion.
Proved[196]
Section 58(1)(a) CLCA
m.
Deleted.
n.
Engaging in sexual intercourse with [Mr N] in KB’s presence, namely by [Mr N] inserting his penis into Ms T’s vagina on more than one occasion.
Proved[197]
Section 58(1)(a) CLCA
o.
Inciting or procuring KB to have sexual intercourse with [Mr N] by him inserting his penis into KB’s vagina.
Proved (limited to one occasion)[198]
Section 49(3) CLCA
p.
Inciting or procuring KB to perform an act of fellatio upon [Mr N] on more than one occasion.
Proved (limited to one occasion)[199]
Section 49(3) CLCA
q.
Inciting or procuring KB to touch [Mr N’s] penis.
Proved (limited to one occasion)[200]
Section 56(1) CLCA
[188] TS 66, 125.
[189] TS 125. Generalised evidence was called that Ms T performed this act on more than one occasion, but insufficient detail was available for me to be satisfied to the requisite standard.
[190] TS 125. Generalised evidence was called that Ms T performed this act on more than one occasion, but insufficient detail was available for me to be satisfied to the requisite standard.
[191] TS 86.
[192] TS 125. Generalised evidence was called that Ms T performed this act on more than one occasion, but insufficient detail was available for me to be satisfied to the requisite standard.
[193] TS 65, 78, 125
[194] TS 65.
[195] Evidence was led of the presence of Ms T on these occasions, but no other encouragement or causative actions.
[196] TS 57, 66.
[197] TS 65, 126.
[198] TS 81.
[199] TS 66.
[200] TS 66.
The accused Mr N is found guilty on Counts 1 and 2. The accused Ms T is found guilty on Count 3.
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