R v N P
[2025] SADC 115
•19 September 2025
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v N P
Criminal Trial by Judge Alone
[2025] SADC 115
Reasons for the Verdict of her Honour Judge Fuller
19 September 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL ABUSE OF A CHILD
Accused charged with one count of sexual abuse of a child – complainant was his biological daughter – offending alleged to have spanned 1997-2008 and occurred in a cabin in a caravan park in which the accused was staying after he separated from the complainant’s mother, the family home when he babysat, and a house he lived in at Price – complainant described sexual abuse occurring from the age of three until she was around 12 years old including the accused showing her adult pornography on computers and other devices – initial complaint to best friend when teenager – prosecution relied upon conversations between accused and complainant’s mother when she confronted him with the allegations as implied admissions, together with accused’s financial contribution to the fees for the complainant’s psychological counselling - accused participated in record of interview in 2018 in which he denied the alleged offending but admitted he gave money to his ex-wife for the complainant’s counselling fees and had conversations in which she accused him of sexually abusing her daughter – accused’s father gave evidence in the defence case regarding the timeline of renovations at the house in Price together with documentary evidence refuting the complainant’s account of the location and timing of the offending in that house.
Held: Number and nature of proved prior inconsistent statements, internal inconsistencies and inconsistencies with other evidence accepted as accurate and reliable left LM’s evidence alone as an unsatisfactory foundation for a finding of guilt beyond reasonable doubt – evidence of conversations with complainant’s mother and financial contribution to counselling fees not capable of amounting to implied admissions – accused’s denials in record of interview reasonably possibly true – evidence of accused’s father compelling and preferred – complainant’s account of alleged offending at house in Price unreliable.
Verdict: Not guilty.
Juries Act 1927 (SA) s 7; Criminal Law Consolidation Act 1935 (SA) s 50; Evidence Act 1929 (SA) ss 34CB, 34M, 34P, 34R, referred to.
R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; R v Cassebohm (2011) 109 SASR 465; Kendall v The Queen [2024] SASCA 54; De Silva v The Queen (2001) 127 A Crim R 116; R v Salahattin [1983] 1 VR 521; R v Christie [1914] AC 545; R v Maiolo (No 2) (2013) 117 SASR 1; R v W, PK [2016] SASCFC 5; R v R, PA [2019] SASCFC 19, applied.
R v N P
[2025] SADC 115The charge
The accused was charged on Information with the following offence:
Statement of Offence
Sexual Abuse of a Child (Section 50 (1) of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
[The accused] between the 16th day of October 1997 and the 16th day of October 2008 at Virginia, Williamstown and Price, maintained an unlawful sexual relationship with [LM], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
a) Touching her breasts on more than one occasion,
b) Touching her vagina on more than one occasion,
c) Kissing her on the mouth on more than one occasion,
d) Inserting a finger into her vagina,
e) Performing and act of cunnilingus upon her on more than one occasion,
f) Causing her to touch [the accused’s] penis on more than one occasion,
g) Rubbing his penis on her on more than one occasion,
h) Causing her to watch pornography on more than one occasion.
The plea
The accused pleaded not guilty and elected for trial by Judge alone. I heard the trial without a jury. I now publish my reasons for the verdict I am about to deliver.
Voir dire
By interlocutory application dated 10 August 2025, the accused sought the following orders:
1. An order excluding any evidence of the accused ‘walking out on his family’ or the circumstances of the breakup of the marriage generally.
2. An order excluding any evidence of the accused allegedly threatening to commit suicide.
3. An order excluding evidence of a telephone conversation or text messages between the accused and the complainant’s mother in which the allegations were put to the accused, and he said he could not remember and also as to the transfer of $1000 into the complainant’s bank account for mental health treatment.
4. An order excluding the evidence of the complainant’s mother locating pornography in the form of VHS tapes and magazines in the accused’s home in Price and their family home at Williamstown.
By agreement with counsel, consideration of paragraph (1) was deferred. It was agreed that the fact of the breakdown of the marriage was relevant as part of the factual matrix and the general circumstances and dynamics of the family unit. Whether the evidence had any additional relevance to the likelihood of the accused engaging in the conduct alleged (that is, whether his alleged lack of care and concern for the children generally and his, at times abusive behaviour towards them, rebutted any inference that he would not have sexually abused his daughter) would be a matter counsel would address in closing submissions once the evidence had been adduced.
I granted the application for an order excluding any evidence of the accused allegedly threatening to commit suicide. The accused admitted in his record of interview that he had mental health problems and had sought treatment for them. He denied attempting to commit suicide. The prosecution sought to lead evidence from the complainant’s mother that during a telephone conversation with the accused in which she accused him of sexually abusing the complainant he threatened to commit ‘another’ suicide. The complainant’s mother said that the accused had threatened suicide on multiple occasions. In my view, the probative value of this evidence was negligible. A threat to commit suicide when confronted with an allegation of sexual abuse could not, in the circumstances of this case amount to an implied admission of the offending. The accused had admitted mental health problems and had threatened suicide for unrelated reasons on prior occasions. Threatening to commit suicide in the face of an allegation of sexual abuse is just as consistent with innocence as it is with guilt.
I granted the application to exclude evidence of pornographic magazines and VHS tapes. The pornography in question was adult pornography but was in a medium that was different from the medium on which the complainant alleged she was shown pornography by the accused. The prosecution case was that the accused showed the complainant adult pornographic images or films on his phone or a computer. The prosecutor argued that the fact that the accused had previously been in possession of adult pornography depicting a man and woman having sexual intercourse, made it slightly more likely that the accused showed the complainant adult pornography of the same type. In my view, the probative value of this evidence was slight. The possession of adult pornography by a heterosexual adult male is not necessarily unusual or unique. The possession of a form of adult pornography in magazines or on VHS tapes does not have any probative value with respect to the issue in dispute regarding particular (h) of the charge.
I refused the application with respect to the telephone conversations and text messages between the accused and the complainant’s mother. In doing so I had regard to R v Salahattin [1983] 1 VR 521 for the principle that an allegation is not admissible in evidence against an accused person unless the circumstances are such as to leave it open to the jury to conclude that the accused, ‘having heard the statement and having had the opportunity of explaining or denying it, and the occasion being one upon which he might reasonably be expected to make some observation, explanation or denial, has by his silence, his conduct or demeanour or by the character of any observations of explanations he thought fit to make, substantially admitted the truth of the whole or some part of the allegation made in his presence’ or that he has so conducted himself as to show a consciousness of guilt.[1]
[1] (Ibid) 527, 35-45 (McInerny and Murray JJ).
Whether that inference can be drawn depends on the coalition of a number of facts:
1. Whether the statement was heard by the accused.
2. Whether the accused understood the statement.
3. Whether the facts stated were within the personal knowledge of the accused.
4. If the matters set out above are established, whether the circumstances were such that a dissent by the accused would in ordinary experience have been expressed by the accused if the statement put to him was not correct.[2]
[2] 527-528.
It is not what is said to an accused person that is admissible, but rather it is an accused person’s response, by way of silence or conduct, from which an inference might be drawn that he or she has acknowledged the truth of the statement or shown a consciousness of guilt.[3]
[3] R v Christie [1914] AC 545 at 554 (Lord Atkinson); R v Salahattin [1983] 1 VR 521 at 528 (McInerney and Murray JJ).
In my view, having been confronted with the allegation that he had been sexually abusing his own daughter, the response ‘I can’t remember’ without any rejection of the allegation is evidence from which an inference might be drawn that the accused has substantially admitted the truth of the allegation put to him. Further, the agreement to pay and the payment of fees for counselling said to be required to address the effects of the sexual abuse is evidence from which the same inference might be drawn.
Overview of the prosecution case as opened on
The prosecution case was that the accused maintained an unlawful sexual relationship with the complainant, his daughter, LM. LM was born on 17 October 1993. Her mother was AM, and she had a brother TM who was born in 1990. The family initially lived in Tasmania although the accused left the family home for a period of time. The relationship between AM and the accused was rekindled, and the family then moved to South Australia, settling initially at Williamstown in a rental property and then purchasing a house. Shortly after the purchase of the house, the relationship ended. The accused moved into a caravan park in Virginia. LM and her brother TM visited the accused at his cabin in the caravan park, and it was there that the first unlawful sexual act occurred. LM alleged that during one visit on a warm day, the accused shut the curtains in his bedroom and started touching her chest saying, ‘what’s this?’ He then touched her vagina and performed cunnilingus on her. When he finished, he told LM not to tell anyone about what had happened.
After this, the unlawful sexual acts took place in the family home in Williamstown when the accused would occasionally look after the children when their mother was working as a registered nurse. The first unlawful sexual act in the family home occurred in the living room after the accused had sent TM outside. He then sat next to LM on the couch, touched her on the chest area and kissed her on the mouth. He then started rubbing her vagina on the outside of her clothing and underwear. He then moved LM to the floor and kissed her again on the mouth and continued rubbing her vagina.
There was another occasion in the living room when LM was playing a video game on a Sony PlayStation. The accused again sent TM outside. He then sat on a chair in the living room and lifted LM up on top of him with her legs straddling his legs and he rubbed her against his erect penis and kissed her on the mouth. He said ‘You like it. You keep coming back for more’. He then lifted her up so that she was standing with her crotch at the same level as his face and he moved her basketball shorts aside and performed an act of cunnilingus.
There were also other times when LM was made to straddle the accused, and he rubbed his penis against her. There was also an unlawful sexual act that took place in her mother’s bedroom. The accused massaged LM’s back and then asked her to massage his. He then rubbed her breast area and vagina over her clothing and then underneath her clothing. He exposed his penis and guided LM’s hands onto it and made her hand go up and down. Around this time the accused started becoming verbally abusive towards LM and called her names and blamed her for things.
LM also alleged that in the computer room in the family home at Williamstown the accused showed her pornographic videos of a man and woman having sexual intercourse. She was around 10 years of age at the time. The accused also showed LM pornography in his home at Price. That house was purchased by the accused’s father on 17 May 2002. The accused continued to offend against LM at this home.
LM said that on one occasion when she was at the house in Price, the accused came into her bedroom and tried to touch her. She said ‘no’ and he left the room upset. She followed him into his bedroom and apologised. He asked her to get onto his bed and when she did, he rubbed her vagina and said, ‘you like this, don’t you’.
The first person to whom LM disclosed the offending was her childhood best friend, AR. This was when she was 13 or 14 years old. AR had noticed what appeared to be self-inflicted lacerations on LM and asked her why she had been doing this. LM told her that the accused had been sexually abusing her.
LM’s mother, AM, spoke with the accused by telephone around the time of LM’s twenty first birthday and asked him if he had ever sexually abused LM. His response was that he could not remember. On the prosecution case this was a lie told out of a consciousness of guilt and an implied admission. AM had a later conversation with the accused in which she told him that LM was obtaining counselling as a result of the sexual abuse to which he had subjected her and asked him to make a financial contribution. He did not make any admissions in this conversation, but he subsequently made a financial contribution, and the prosecution relied upon that evidence as an implied admission.
Elements of the offence
To prove the charge of sexual abuse of a child, the prosecution must prove beyond reasonable doubt that:
·The accused knowingly maintained a relationship with the complainant. This element requires more than proof alone of the commission of two or more unlawful sexual acts.
·Whilst that relationship was in existence, the accused intentionally committed two or more unlawful sexual acts with, or toward, the complainant.
·At the time the accused committed two or more unlawful sexual acts, she was an adult.
·At the time the accused committed two or more unlawful sexual acts, the complainant was a child.
An unlawful sexual relationship is a relationship in which an adult engages in two or more unlawful sexual acts with a child over any period.
Child is defined in s 50 CLCA to include a person who is under 17 years of age.
An unlawful sexual act is any act that constitutes or would constitute, (if particulars of the time and place at which the act took place were sufficiently particularised) a sexual offence.
In this case, the unlawful sexual acts alleged in the particulars of the charge are as follows:
·Particulars (a) – (c), (g): Indecent assault.
·Particulars (d) and (e): Unlawful sexual intercourse.
·Particulars (f) and (h): Procuring an act of gross indecency.
To prove the offence of unlawful sexual intercourse the prosecution must prove beyond reasonable doubt:
·The accused had sexual intercourse with the complainant.
·The complainant was a child.
Sexual intercourse is defined as including the penetration of a person’s vagina, labia majora or anus by any part of the body of another person and includes an act of cunnilingus.
An indecent assault is an assault accompanied by, or committed in, circumstances of indecency. The prosecution must prove an assault. An assault is the intentional and unlawful application of force to another. The prosecution must prove the assault was accompanied by, or committed in, circumstances of indecency. There must be a sexual connotation. Whether an assault is indecent is for me to determine by reference to prevailing community standards of what is considered indecent. A child cannot consent to an indecent assault.
To prove the charge of procuring an act of gross indecency, the prosecution must prove beyond reasonable doubt that the accused procured the complainant to perform an act in circumstances which make it grossly indecent. It must be proved that the complainant was under 16 years of age at the relevant time. It must be something more than minor or trivial indecency. The conduct must be such as to be characterised not only as indecent, but as grossly indecent. Consent is no defence.
It must be proved that the accused procured the complainant to perform an act (in this case causing the complainant to masturbate his penis and causing her to watch pornography in his presence) and that he procured the act intentionally.
It must be proved that causing a child to touch an adult’s penis and causing a child to watch pornography in the circumstances is not only indecent, but grossly indecent.
Indecency carries with it a sexual connotation. ‘Indecency’ means some form of sexual conduct which is indecent having regard to the complainant’s age, the accused’s age, the circumstances of the alleged conduct and the contemporary standards of morality and decency of right-thinking members of the community. It must be proved that the proved act was not only an indecent act but was a grossly indecent act. In this context, the word gross means something that is more than minor. It must be grossly indecent by reasonable, contemporary standards.
Issues in dispute
The only issue in dispute was whether the unlawful sexual acts were perpetrated by the accused.
General directions
The accused elected for trial by Judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v G [2015] SASC 186, whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in a number of authorities: see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; and AK v The State of Western Australia (2008) 232 CLR 438 per Heydon J.
The general directions were summarised by Lovell J in R v G. They are as follows:
As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.
I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent, and I must find a verdict of not guilty.
The accused did not give evidence. I will draw no adverse inference against the accused for exercising his right to remain silent. The accused called his father to give evidence and tendered various documents. I will treat his father’s evidence in the same way as any other witness in this trial.
The evidence
I now turn to consider the evidence in detail.
Agreed facts
The following facts were agreed in Exhibit P1:
Dates of Birth
1. [The complainant] was born on 17 October 1993.
2. [The accused] was born on 15 May 1963.
Housing Records
3. [AM] and the accused purchased 45 Eva Street WILLIAMSTOWN on 14 March 1997.
4. The accused’s father purchased 7 Clemintina Street Price on 17 May 2002.
Schooling Records
5. [The complainant] attended Williamstown Preschool in 1998.
6. She attended Williamstown Primary School from 1999 - 2003.
7. In 2004, [the complainant] moved to St Jackobi Lutheran School in Lyndoch.
Divorce and Family Court Order
8. A Family Court order in relation to division of property and the custody of the children was made on 22 September 1999.
9. The certificate of divorce was issued on 16 May 2003.
Bank Account Transfer
10. On 31 January 2018 the accused transferred $1000 electronically from his bank account to the bank account of [AM].
LM
LM gave her evidence accompanied by a court companion and, for some, but not all of her evidence, with a one-way screen erected between her and the accused. I will not allow those special arrangements to influence the weight I give to her evidence and nor will I draw any adverse inference against the accused.
LM said her parents were AM and the accused. She had one sibling, her brother TM who was three years older than her.[4] Her grandparents were BP and EP. LM said the family moved from Tasmania to South Australia when she was about three years old. They first lived in a rental property on Yettie Road, Williamstown for about a year. They then moved to Eva Street, Williamstown. She went to Williamstown Primary School and then in year five to St Jackobi School. She then went to Faith Lutheran High School in Tanunda and completed year 11 and 12 at Birdwood High School.[5]
[4] T 33.
[5] T 34.
A floor plan and photographs of the home at Eva Street tendered: Exhibit P2. LM said she was in bedroom 1 and TM in bedroom 2. The photographs were not taken at the time she was living there but were produced for the purposes of selling the house.[6]
[6] T 36.
After the family moved into Eva Street, LM’s parents separated.[7] The accused moved into a cabin in the Virginia Caravan Park. At this time, AM was working and when she was at work, LM’s grandmother MM would look after them. If she was not available, she and TM would go to day care. There were a few occasions when the accused would look after them. The majority of the time they were in daycare.[8]
Sexual acts in the cabin at Virginia caravan park
[7] T 38.
[8] T 39.
LM said that she visited the accused’s cabin in the Virginia caravan park. It was a two-bedroom cabin. Upon entry there was a kitchen area with a lounge area and at the back was the accused’s room and another room on the right-hand side. LM said there were ‘army green coloured curtains’ in the bedroom at the back, together with a double bed.[9]
[9] T 40.
LM said that when she was ‘roughly about three, four, five years old’ she and TM visited the cabin. Her mother was not there as she was working. The accused told TM to go outside, and she then described what happened next:
…I remember my dad leading me to the back room where the double bed is, closing the door and I remember him shutting the curtains, that’s why I can remember the colour.[10]
[10] T 40, 29-32.
LM said that he placed her onto the double bed and began touching her chest over her clothing while standing up. He then touched her underneath her clothing and said, ‘what’s this?’.[11]
[11] T 40.
When the accused touched her on the chest, she was lying flat on the bed, and he was standing up around the side of her. Her feet were towards the bottom of the bed. LM then said that when the accused remarked ‘what’s this’ he was touching her over the top of her clothing. He then went round the bottom of the bed and removed her pants and underwear. He then rubbed her vagina using his hands in a circular motion and put a finger inside her vagina. She remembered that because it was sore. She did not know what was happening at that time. When the accused was at the bottom of the bed, he used his tongue inside the labia and also on her clitoris, but she did not know for how long.[12] Afterwards he said, ‘don’t tell anyone, this is our little secret’.[13]
[12] T 41-42.
[13] T 43.
LM said this happened in the afternoon and she could recall ‘the sunlight was coming through the army green curtains’ which were closed. She said she was definitely pre-school age. She started pre-school when she was four years old.[14]
[14] T 43.
LM said she visited the cabin more than ten times and possibly less than twenty times. The accused also visited at Eva Street after he moved into the cabin. His visits were sporadic.
Sexual activity at Eva Street in the lounge room
The first time something of a sexual nature happened at Eva Street was one day when LM was sitting on the three-seater couch in the lounge room. The accused sent TM outside. The couch and the carpet were blue. LM was wearing pyjamas and the accused came and sat next to her and started to rub her chest on the outside of her clothing and was kissing her on her mouth. He used his hands to rub the inside of her chest and rubbed the outside of her pants on her vagina. LM just sat there as she was not sure what was happening. The accused then moved her from the couch onto the carpet and lay next to her. LM marked P2 with an ‘x’ to indicate where she was put on the carpet and also the furniture in the room.[15] The marked-up copy of P2 became Exhibit P2A.
[15] T 45-46.
When she was lying on the floor the accused began to rub the outside of her pants where her vagina was. He was lying on his side on her left-hand side and was pressing up against her.[16] The accused was closest to her left arm as she was lying on her back. It came to an end when TM came back inside through the back laundry door. She did not hear him come in but saw him after the touching had stopped.[17] LM explained:
He just came back through the house. So, I remember dad getting dressed, he was already dressed but I got dressed and came back through. I don’t quite remember where he was but I remember seeing him.[18]
[16] T 47.
[17] T 48.
[18] T 48, 21-24.
There was another occasion when she was on the single seater marked on P2 and she and TM were playing FIFA on PlayStation 1. The accused told TM to go outside, and he did not want to go. LM said ‘just let us play’ but the accused threatened TM that he would throw out the PlayStation if he did not go outside and collect some firewood. The accused then followed TM outside and she heard him lock the back door. TM tried to run around to the pergola where there was a sliding door in the dining/family room, but she could hear the accused lock that also. The accused then returned and ‘got’ her to come over with him to the single seater and he sat down on it and lifted her on top of him with her legs either side. He then moved her up and down on top of him. The blinds were closed in the lounge room because they had been playing PlayStation.[19]
[19] T 49-50.
LM said he had an erection, but she did not know what that was at the time. She said it was hard on his penis, and she could feel it around her genital area. He was moving her up and down on his penis. He said to her, ‘you like this, you keep coming back for more’. LM said that was exactly what he said. LM said she was wearing her blue basketball shorts made of mesh material. He then moved her up, so her genital area was in front of his face. She could not recall having underwear on. He moved her basketball shorts to expose her vagina and used his mouth again to perform oral sex on the outside and inside of her vagina.[20]
[20] T 51-52.
LM did not know for how long this took place but after it finished the accused said, ‘Do not tell anyone. It’s our secret’. There were other occasions when the straddling and rubbing occurred, but she could not recall the specifics of them. There were probably less than ten occasions, both at Eva Street and at the accused’s house in Price.[21]
Sexual activity at Eva Street in her mother’s bedroom
[21] T 53.
LM said that there was an occasion when the accused took her to her mother’s bedroom and wanted to give her a massage on the bed. She did not know where TM was. The accused led her to the bedroom holding her hand or wrist. He made her go around the right-hand side of the bed. She marked this on P2. He went around the right-hand side of the bed and ‘got’ her to give him a back massage without his shirt on and then he gave her a back massage. He then moved onto the other side of the bed, and she was still lying on the side. She then explained that after the massage:
…he got to the other side of the bed and then he, we were underneath the sheets and he rubbed against my chest on top of my clothing and then rubbed again on the outside of my pants around my genital region and then he touched my vagina without – on the inside of my pants and then he was originally wearing jeans and I remember him taking them off and he had – I remember specifically he had black underwear on and he removed his black underwear to expose himself…he, whilst still touching me, he grabbed my hand and put it on his penis and kept it there and made me move up and down while – with his hand.[22]
[22] T 56, 11-24.
LM said that the accused had his hand on her hand and moved it up and down on his penis. His penis was erect. He was still touching her on her vagina under her clothes in circular motions. She did not recall him inserting a finger into her vagina. He was wearing jocks not boxer shorts or briefs. She could not say if he ejaculated and she did not know how it came to an end or for how long it took place.[23] After it finished, the accused acted as if nothing had happened and put on his underwear and jeans then started to become verbally abusive and called her names like ‘bitch’.[24]
[23] T 57.
[24] T 58.
LM said that she had basketball shorts for playing basketball. She thought she started playing basketball around age 10 but she could not be one hundred percent sure. She thought this incident happened around the same time as the one that took place when she was wearing her basketball shorts.[25]
[25] T 58.
There were at least two other times when the accused put her hand on his penis, but she could not recall the specific details. The other times occurred at Eva Street and the house in Price. The accused had been verbally abusive to her previously but on occasions not linked to sexual abuse. She said he seemed to be blaming her for the sexual abuse. He was aggressive.[26] There was a lot of yelling and swearing by the accused towards her and her mother and brother. He would call TM ‘fucking stupid’ and ‘fucking dumb’.[27]
[26] T 59-60.
[27] T 61-62.
When asked about how she felt when the sexual abuse was occurring, she said ‘just unusual and weird because I don’t – again I didn’t know what it was. I didn’t know if it was normal, like I thought it was a normal thing, so’.[28]
Pornographic videos and images
[28] T 61, 8-10.
LM said that bedroom 2 marked on P2 was TM’s bedroom until he moved into the retreat in the shed. His bedroom was then turned into a computer room. TM moved out of bedroom 2 when he was in his teenage years. After TM moved out, LM said there was an occasion when the accused made her go into the computer room. She could not recall who was home. He was watching pornography. LM could recall seeing pornography for the first time but not knowing what it was. It was a man and woman having intercourse and she asked ‘what is this’ but the accused told her she could not leave until it was finished. He was sitting in an office chair watching the screen and then looking at her and then watching the screen. She did not know what intercourse was at that time and she thought it was a weird thing to be shown because there were naked bodies. She thought she was around 10 years of age. She said she did not have sexual education in primary school, but she did in high school. There were more than five other occasions when she was shown pornography, but it was on different devices, on phones and computers.[29]
[29] T 62-64.
LM was shown pornography at Eva Street and Price. At Price it was on the accused’s phone and computer. She could recall seeing ‘boobs and pictures of women’s vaginas’ on ‘phones’ at Price. They were photographs.[30]
Sexual abuse at Price
[30] T 65.
When the accused first moved to Price he lived with his parents. LM visited him there, but no sexual abuse occurred in that home. The accused then moved into his own home not far away. LM drew a floor plan of that house on 9 September 2021: Exhibit P3.[31]
[31] T 66.
LM said she would normally stay in bedroom 3 and TM would stay in bedroom 2. The accused’s bedroom was the next one down.[32] The floor plan she drew was from what she could recall on the last occasion she visited which was when she was around 16 or 17 years old.[33]
[32] T 67.
[33] T 68.
On one occasion when she was visiting, she was in bedroom 3 and TM was in bedroom 2 asleep. The accused came into her room and lay down on the right-hand side of the bed. He was behind her, and she could feel an erection as he pushed against her backside. She said ‘no’, but he persisted and was trying to touch her and she again said ‘no’. After the second or third time she said no, he got up out of bed and was crying and went back to his bedroom. It was night time so she assumed TM was asleep. It was dark in her room, but the hallway was illuminated, and she could see light coming in from the hallway when he opened the door.[34]
[34] T 68-69.
LM said the accused was making sobbing noises and covering his face. This made her feel like she had done something wrong, and she felt so guilty. The accused then went to his bedroom. She then went to his bedroom to apologise because she thought she had done something wrong. She said, ‘I’m sorry’. He told her to get into his bed. She was in primary school at this time. After she got into his bed, he turned her onto her right side, and he rubbed up against her backside. He also rubbed the outside of her pants and genital area.[35] LM could not recall how this stopped or what she did next.
[35] T 69-70.
This was the last occasion of sexual abuse that LM could recall occurring at Price. She said she had a very vivid memory of it and could recall very specific details. She thought there were further occasions of abuse, but they were not as clear. They involved similar touching of her breasts and vagina.[36] They did not happen every time she saw the accused but were mostly when TM and the accused were alone. It never happened when her mother was present. LM said cunnilingus occurred more than twice and the accused rubbing his erect penis against her happened more than twice. LM said that the accused made her masturbate his penis more than twice.[37]
Cessation of alleged offending
[36] T 71.
[37] T 72.
The touching stopped when she was around 12 years old. She got her period when she was around 12 years old. There was definitely no sexual touching after that. She last saw the accused in person at her 18th birthday party.[38]
Initial complaint
[38] T 73.
The first person she talked to about the sexual abuse was her best friend AR. They had known each other since kindergarten. She was sure that she was 16 years old when she told AR.[39] AR lived down the road from Eva Street. One day LM was outside the driveway sitting on the kerb. AR walked up to see her and LM had just self-harmed and had cuts on her arms and legs and was crying. AR asked her what was wrong, and she told her that she had been sexually abused by her father. She was sure she used the words ‘sexually abused’.[40]
[39] T 73.
[40] T 73-74.
LM said she did not tell anyone prior to telling AR because she had been told by the accused not to and when she was growing up, she was scared of him. She also said that she did not know that what was happening was wrong. She then gave this evidence:
HER HONOUR
QAt some point did you come to learn that what had happened to you was wrong.
AYes.
QHow old were you when you learnt that.
A[AR] told me it wasn’t right but I didn’t tell anyone until I moved out of home at around 18, 19 with my ex-partner, [BR]. I specifically told him what had occurred and he told me to go get, you know, support for that one and to report it.
QSo just going back to my question. You said [AR] told you it wasn’t right. Before [AR] told you that, was that something that you realised before that.
ANo. To be – I know that sounds weird but I just didn’t know it was a normal thing.
XN
QSo how old were you when you had the conversation with [AR].
A16.[41]
Cross-examination
[41] T 75, 9-27.
LM agreed that she estimated she lived in the house at Yettie Road, Williamstown for a year because that was a common rental tenancy period. LM said she was three years old and remembered that it was a rental because they were only there for a short period of time and her mother bought the house at Eva Street.[42]
[42] T 78-79.
LM said she ‘specifically’ remembered that the caravan park was in Virginia because there was a go-cart place near Port Wakefield Road and the St Kilda playground they used to visit.[43]
[43] T 80.
LM said more often than not she and her brother would be at daycare when their mother was working; otherwise, her maternal grandmother, who lived in Evanston Gardens with her grandfather, would often pick up her and her brother from school and take them home and wait with them. There were no regular days when her father would pick them up from school.[44]
[44] T 81-82.
LM said that her mother would usually drive her and TM to see their father at his cabin in Virginia Caravan Park. There were only a few occasions when she slept over; there were other times they would just visit for the day.[45] On some of the occasions she stayed overnight, her mother would stay as well. Her mother would share a bed with the accused when she stayed overnight. The overnight and day visits were not scheduled but were sporadic.[46]
[45] T 82.
[46] T 83, 86.
LM said that the accused’s bedroom in the cabin had ‘army green curtains ‘kind of like a mesh material’ and there was a second bedroom next to the kitchen area which had a bi-fold dark brown door. The walls were ‘like a creamy asbestos material’.[47]
[47] T 83-84.
LM could remember another identical cabin right next to her father’s cabin.[48] A plan of the Virginia Residential Park was tendered on the basis that LM identified cabins 97-99 as being in the vicinity of the location of the accused’s cabin: Exhibit D4.[49]
[48] T 86.
[49] T 89.
LM agreed that in her first statement to police on 6 April 2018 she said that she was three or four years old when something of a sexual nature first happened between her and the accused in the cabin.[50] In her statement dated 24 September 2018, she said it happened when she was three, four or five years old. In evidence that first trial she said she was three or four years old. LM agreed that she turned three years of age on 17 October 1996.[51]
[50] T 90-91.
[51] T 91.
LM agreed that in evidence she said that the accused led her to the bedroom in the cabin. In her statement, 24 September 2018, LM said ‘I can’t remember how I got there, but dad came over to me on the bed’. LM agreed that at the time she made her statement on 24 September 2018 she did not have a memory of how she got into the bedroom. She could not recall when she ‘got’ that memory, but it was the result of going through ‘court stuff’ and having to ‘go over it quite a few times’.[52] LM agreed that in her statement dated 17 September 2020 she said, ‘Dad told me to go to the bedroom and then followed me to the room’. When asked to explain the different versions, LM said that the first time she reported it was to another police officer, and she was under a bit of stress telling her story for the first time but having to repeat it quite a number of times over the last six or seven years her memory had become quite sharp.[53]
[52] T 92-93.
[53] T 93.
LM agreed that she said in examination in chief that her father placed her on the bed. At the first trial she said that her father lifted her on the bed. She said those two descriptions were of the same thing. LM agreed that she said in her first statement to police that she could not remember how she got onto the bed. This was another example of how her memory had become more vivid over time and repetition so that she could now say how she got onto the bed.[54]
[54] T 94
LM agreed that when she described the accused touching her chest underneath her top and said ‘what’s this’ she did not have any breast development. He made that comment when his hand was under her top and she was lying flat on the bed, and he was to her side and standing up.[55] LM agreed that in examination in chief, she described the accused saying ‘what’s this’ at the time he was rubbing her chest over her top and later when describing the same event, said he was rubbing her chest under her top when he said ‘what’s this’. She agreed that they were different versions.[56]
[55] T 94.
[56] T 96.
LM said she could not recall her evidence in examination in chief that when she was describing the accused rubbing and then putting his finger inside her vagina, she was lying with her legs over the end of the bed.[57] She agreed that this would suggest that she was at the end of the bed with her legs hanging over it. She agreed that it was when she was in that position that the accused knelt at the foot of the bed and licked her vagina. LM agreed that in her statement dated 17 September 2022, when describing this aspect of the incident she said, ‘he stayed standing until he started to rub my vagina. Once he started to do this he moved onto the bed and was kneeling on my feet’.[58] LM agreed that this was different from her evidence. She explained that this was because the repetition of coming to court and having to tell her story for the last six or seven years.[59]
[57] T 97-98.
[58] T 98.
[59] T 99.
LM agreed that at the first trial she said in evidence that the accused went around to the front of the bed, took off her pants and underwear and got on top of the bed near her feet, kneeling on her feet. LM agreed that she had not previously said she was on the end of the bed with her legs hanging over it until she gave evidence in this trial.[60]
[60] T 100.
LM said that she had a distinct memory of the army-green curtains because she saw sunlight coming through them. She also had a strong memory of the accused closing those curtains. She agreed that in her evidence at the last trial she said there were cream curtains in the bedroom. When asked to explain why she described the curtains as cream at the last trial but army green in her evidence in this trial she said, ‘that came about because I had to keep going over it, but I do remember that the walls were cream-coloured asbestos material’. LM also agreed that the first time she said anything to the police about the curtains being army green was in her statement dated 6 August 2025, the week before the trial commenced. LM agreed she had given seven statements to police in addition to the first statement.[61]
[61] T 100-101.
However, LM said she had recalled the curtains being green before she was due to attend court to give evidence a second time, but the hearing did not go ahead. As a result, she did not have a chance to have a ‘proper briefing’, and she did not think the curtain colour was that important.[62]
[62] T 101-102.
LM agreed that in examination in chief she had said she specifically remembered the accused closing the curtains. In her statement dated 24 September 2018 she said, ‘I remember looking around the room and noticing that the curtains were drawn.’ LM explained that this was a memory she had developed over time.[63]
[63] T 103.
LM said that she was scared of her father but not of her mother. She did not tell her mother what the accused was doing because he was supposed to be her carer and protector. She said she did not know what was happening at the time and she thought she had to keep it a secret because he had told her that as a parent.[64]
[64] T 105.
LM was shown a photograph of a brown velvet curtain and said she had seen something very similar at the accused’s house in Price: Exhibit D6.[65]
[65] T 107.
LM said that the sexual touching at Eva Street was possibly around the same time as the incident in the cabin. She agreed that in her statement dated 24 September 2018 she said she believed it was a couple of months after the first incident.[66] LM confirmed that on this first occasion of sexual abuse at Eva Street she was on the three seater couch and the accused came and sat next to her and started rubbing her chest over her clothing, kissed her mouth and then used his hands to rub the inside of her chest and the outside of her clothing on her pants and vagina. He then moved her from the three-seater lounge onto the carpet. She was unsure if he was lifting or carrying her. LM agreed that at the first trial she said that the accused told her to go on the floor. She explained the difference was because her memory sharpened or differed after the first time she gave evidence.[67]
[66] T 108.
[67] T 110-112.
LM agreed that in her evidence in examination in chief she had said the accused had rubbed the outside of her clothing on her pants. She agreed that in the first trial she had said that he rubbed her vagina inside her clothing.[68] Her explanation for the difference was ‘having to re-tell it’.[69]
[68] T 112.
[69] T 112-113.
LM agreed that her evidence that she ‘got dressed’ when TM returned to the house was something she had never said before.[70] She remembered it as she was giving evidence the day before.[71]
[70] T 116.
[71] T 117.
LM said that the second incident of sexual abuse at Eva Street was when she was around 10 years old and that was based on the fact that she was wearing basketball shorts and playing basketball at the time. She then said she was ‘basing it off’ the fact that she and TM were playing FIFA on PlayStation at the time.[72] LM agreed that in her statement dated 24 September 2018 she told police that she believed the ‘FIFA’ incident occurred in the same year as the first occasion of sexual abuse at Eva Street.[73] Her explanation was that this was before she remembered the specifics about the game they were playing at the time. At a later time, she came to recall that it was FIFA, and she was 10 years old.[74] LM agreed that she had said in evidence in this trial that the accused came over to her and got her to come to the single seater and made her sit on top of him with her legs either side. She agreed that in the first trial she said that he had come over to where she was sitting and sat next to her and lifted her on top of him.[75]
[72] T 117.
[73] T 117.
[74] T 118.
[75] T 118-119.
LM also agreed that she had never previously said that the accused had told TM to go out and collect firewood or threatened to throw out TM’s PlayStation.[76] She also agreed that in her statement of 24 September 2018 she said that the accused was on the couch and had lifted her up and put her on top of him. She agreed that was different from her evidence that she was moved onto a single seater.[77] LM agreed she had given different versions of where she was sitting and how she came to be in that position.[78]
[76] Subsequently, defence counsel advised LM that she had told police on 6 August 2025 that the accused had threatened to throw out TM’s PlayStation.
[77] T 120.
[78] T 120-121.
LM explained the different versions:
…Specifically in our briefing we mentioned it, that I remember specifically, because we were playing PlayStation 1 at the time with FIFA there’s remote controls with the PlayStation 1 with cords so I couldn’t have been sitting on that chair at that time. Well, I would have had to have been sitting on the ground with [TM] to reach the PlayStation console.
…and I remember specifically I always played FIFA against my brother. So we would have been sitting on the ground playing against each other.[79]
[79] T 122, 6-18.
LM said that she remembered that because of the briefing and going over and over it again. She said she was not sitting on either the single seater or the three-seater lounge but was sitting on the floor.[80]
[80] T 122.
LM agreed that in her statement dated 24 September 2018 she did not mention wearing blue basketball shorts and possibly not any underwear, that the accused had his mouth on her vagina or that the accused said, ‘you keep coming back for more’. The first time LM mentioned these things was on 5 August 2022.[81]
[81] T 124.
LM said she started having therapy for depression and anxiety when she was 19. She was going to Adelaide Road Psychology and originally saw Sharon but then moved to Susan Bubner.[82] LM said she saw the psychologist whenever she needed to; it might be once every couple of months or once a month, but she could not give specifics. She agreed that in her statement dated 5 August 2022 she told police that in the twelve months before 5 August 2022 she had been attending therapy sessions once a month.[83]
[82] T 125.
[83] T 126.
LM said in that statement that since having therapy sessions she had unblocked memories of what the accused did to her.[84] The things she mentioned for the first time in her statement 5 August 2022 were memories recovered through the therapy process. LM described this as her memory becoming sharper from talking about it in therapy or in court.[85]
[84] T 127.
[85] T 134.
LM agreed that at the first trial she was asked how the therapy unblocked memories, and she said that ‘the type of memory that actually happened was actually through a nightmare to begin with and it was reoccurring and that was just joining on from the past memory that was already – I already spoke about so I guess through talking’. At the first trial she explained the memory to which she was referring was the ‘FIFA’ incident.[86]
[86] T 133-134.
LM agreed that in her statement dated 5 August 2022 she did not tell police that that it was talking through it over and over again that improved her memory.[87] Rather, she told police that the memories about the FIFA incident came back as a result of being unblocked through therapy.[88] LM said that this occurred over a long period of time, involving talking about the memories in therapy sessions but also outside of therapy. She underwent cognitive behavioural therapy.[89]
[87] T 135.
[88] T 147.
[89] T 148.
LM said the sexual abuse that occurred in her mother’s bedroom at Eva Street was when she was around 10 years of age and possibly around the same time as the FIFA incident. She agreed that in her statement dated 17 September 2020 she said that it happened about a year after the third offence and when she was in primary school.[90]
[90] T 149-150.
LM said that bedroom 3 in P3 was the room she stayed in at Price when she visited from around 2003. She could specifically recall the beds and some pieces of furniture in the house. She did not know how long her father had been living there before she visited for the first time.[91]
[91] T 153.
LM said there was a period of time when her father lived on a chicken farm near Freeling. She said she visited him there more than once and stayed over. He was living in a house with a triangle roof.[92]
[92] T 154.
LM agreed that in her first statement dated 24 September 2018 when describing the last occasion of sexual abuse which occurred at the accused’s house in Price the accused said, ‘you like this don’t you’. When it was put to LM that she had not mentioned this in evidence, she said she could not recall if she did. She denied she was confusing this incident with the ‘FIFA’ incident at Eva Street.[93]
[93] T 156.
LM said she specifically remembered that when the accused first moved into the house at Price, he had a lot of repairs done. The back room was ‘half-ruined’ until she was aged 17. LM agreed that until she gave evidence in the first trial, she had not previously mentioned repairs to the house.[94]
[94] T 157.
LM said that from the time she started visiting the Price house in 2003 she and TM had their own bedrooms and the accused’s room was up the front. There were furnishings in the house and a plastic white table in the hallway with a computer on it. LM always occupied bedroom 3 when she stayed in the house at Price.[95] When she visited, there was a working bathroom, and she was pretty sure there was a toilet outside. There was also a functioning kitchen and a front lounge room. During the occasion of sexual abuse, she described as being the last occasion she could recall, the lounge had blue leather couches, a TV and a fireplace.[96]
[95] T 157.
[96] T 158.
When LM was about 17, she visited the Price house with a friend and stayed one night. The accused had let them have the house for the weekend and visited them when they were there.[97]
[97] T 158-159.
Photographs of the interior and exterior of the house at Price were tendered: D7. LM said she recognised almost all of the photographs as being taken of the house at Price.[98]
[98] T 162.
LM said she was not sure of the timeline of her first visit to the Price house, but it was around 2003. The photographs in D7 showed the bedrooms with very similar furnishings to those present when she visited. She agreed that the photographs depicted the house in a very similar way to when she visited (with the exception of page 10).[99]
[99] T 164.
A further bundle of photographs of the Price house was tendered: Exhibit D8. LM said she remembered the house without the shed as depicted in the first photograph in D8. LM said she could recall repairs to the gyprock. She agreed that she had not mentioned this prior to giving evidence at the first trial. She also agreed she was shown very similar photographs of the house at the last trial. LM accepted that until she gave evidence at the first trial she had not said anything about the house being renovated but said, ‘I did write in my plan that some of it was half ruined as well’ but then conceded that she recorded on the plan that one of the rooms was half ruined.[100]
[100] T 166.
LM agreed that when she was 16 years old and used the term ‘sexually abused’ to describe to AR what the accused had done, she intended to convey that something improper, wrong or harmful in a sexual context had happened to her. LM agreed that she must have known that the behaviour was wrong. She then gave this evidence:
QSo would you agree with me that you couldn’t have been right that the reason you hadn’t said anything was because you didn’t know it was wrong, do you agree with that.
ANo because at that stage I was in high school so prior to that I hadn’t known any about – had education around that but also, yeah, I was older and I had best friends to rely on at that point of time. I still didn’t tell anyone else other than [AR] at that stage because I was frightened.
QDid you need to have an education to know that parents sexually touching their children was wrong.
AYeah, well, I just assumed it was normal from my growing up. I know that sounds odd but that was my normal.
QUp until the age of 16 did you think it was normal.
AI didn’t think anything other than I guess not the word ‘normal’ but I just didn’t know anything different.[101]
[101] T 168, 31-38; T 169, 1-10.
LM said she had a clear recollection of the conversation with AR on that day. She agreed that in a statement dated 17 September 2021, she told police, ‘I recently found out that I mentioned him, my father, abusing me to my friend [AR] when I was a teenager. She recently reminded me of this but said that I had only mentioned my father had sexually abused me and no further detail. I don’t really remember much about this conversation’.[102]
[102] T 169.
LM then said that the second time she had spoken to AR about the abuse was when she was 16 and it was at AR’s father’s house. LM explained that AR reminded LM that LM had already disclosed this to her when she was on the kerb at Eva Street. LM then said she was 13 years old when she was on the kerb and first disclosed the abuse to AR.[103] She then gave this evidence:
HER HONOUR
QSo yesterday when you were describing that you said you were 16.
AI did, I think.
QBut your evidence is that that was in fact when you were 13.
AYes because I remember speaking to [AR] when I was 16 but that must have been the second time I spoke to her.[104]
[103] T 170.
[104] T 171, 25-32.
All that AR said was ‘you’ve already told me this’ and LM then remembered the earlier conversation. LM agreed that when she first spoke to police on 6 April 2018, she said the first person she told about the sexual abuse was her boyfriend and around six years earlier. She did not mention the conversation with AR. When asked whether that was because she did not recall it, LM said, ‘I was with [B] at the time so that was my first person that I thought of that I had told in person, yeah’.[105] LM then gave this evidence:
[105] T 173.
HER HONOUR
Q[LM] at the time that you told the police that, did you recall that you had already told [AR].
ANot that – my first report, I didn’t. I just based off me telling [B], my ex-partner, because I was living with him at the time. So yeah.
QSo, just so I’m clear, at the time the police officer asked you that question, did you remember that [AR] was the first person you’d told.
ANot the first time I reported it to the police officer, no –
QOkay.
A– I didn’t remember [AR].
QSo does it – do I take it from your answer that, at that time, when you were asked that question by the police officer, you didn’t, at that point, have a recollection of having two conversations with [AR] on the topic.
ANot – no, not at that time.[106]
[106] T 175, 6-23.
LM agreed that in her statement dated 17 September 2021 she said she was not sure what she had said to AR in the first conversation.[107]
[107] T 214.
LM said that she learnt about sexual intercourse around the time she hit puberty, which was 12 years of age. When she was made to look at pornography by the accused, she was 10 years old.[108]
[108] T 177.
LM could not recall when TM moved into the retreat and his old bedroom was converted into a room with a desk and computer. He moved in there in his teenage years. She could not be sure if it was 2009.[109] LM identified herself in a photograph of the room that was being converted into the retreat for TM: Exhibit D 9.
[109] T 177.
LM said the accused showed her pornography on the computer and photographs on the older phones he had. LM said the accused showed her pornographic images on different phones over different years. It was put to LM that this was the first time she had said this. She said she was not sure.[110] LM agreed that at the first trial she said that the phone upon which she was shown pornography was a black Nokia.[111] A photograph of a Nokia phone was tendered: Exhibit D11. LM agreed that it was similar to the phone on which the accused showed her pornography.[112]
[110] T 179.
[111] T 180.
[112] T 211.
LM agreed that before giving evidence in this trial she had not said that the accused showed her pornography anywhere other than at the house in Eva Street and the house in Price. She said she was not sure whether it was not until 6 August 2025 that she told police that she had been shown pornography on different devices over the years. She agreed that in the first trial she did not mention the use of multiple devices.[113]
[113] T 196-197
A schedule of psychological appointments was tendered: Exhibit D 10. LM agreed that the schedule showed 29 psychological appointments with one psychologist between 5 February 2016 and 17 August 2017 and 77 appointments with another psychologist between 23 January 2018 and 30 August 2022. There were also 68 appointments for ‘neurofeedback’ between 25 January 2018 and 22 August 2020. The neurofeedback appointments were on different days from the 77 therapy appointments but with the same psychologist. LM agreed that she had around 150 appointments between January 2018 and August 2020 which was significantly more than once a month.[114] LM said she had not forgotten about the neurofeedback sessions when she said in evidence that the therapy was cognitive behavioural therapy. She said the neurofeedback sessions had nothing to do with unlocking memories. When asked if she had a psychology degree, she said she had a psychological science degree in social sciences and social work and she applied that in determining which particular therapy had assisted her to unlock her memories.[115]
[114] T 198-202.
[115] T 202.
LM explained that the cognitive behavioural therapy enabled her to change her thoughts and behaviours and cognitive thinking with her nightmares. She said that neurofeedback involved having wires attached to her head in certain regions which connected to a screen. The purpose of the neurofeedback sessions was to keep her thoughts engaged.[116]
[116] T 203-204.
LM disagreed that the house in Price was in the condition shown in D8 in 2003. She said she did not remember it like that.[117] LM rejected the suggestion that the condition of the house as depicted in the photographs in D7 was not the condition it was in when she visited between 2003 and when she turned 10. She also rejected the suggestion that the bedroom furniture in the photographs was not there before 2007 or that there was no computer in the house until 2007. She said the first computer the accused had was not connected to the internet. At a later time, there was a computer at Price that was connected to the internet. The accused did not show LM pornography on any computer at the Price house. At the time the accused showed her pornography on a phone at Price she could not say if there was a computer connected to the internet.[118]
[117] T 205.
[118] T 206-209.
LM said there was no abuse after the age of 12 when she hit puberty. LM agreed that on 6 April 2018 she told police that the abuse occurred between the ages of three to four years through to 13 to 14 years but then stopped because of puberty.[119]
Re-examination
[119] T 212.
LM said that her last memory of the accused abusing her at Price was at a time when she remembered carpet and furnishings being there.[120]
[120] T 215.
AR
AR had known LM since she was about four years old. For a time, they were at primary and high school together.[121] They were best friends growing up and are still pretty close friends.[122]
[121] T 216.
[122] T 217.
AR said when she was 14 years old, she and LM were standing out the front of LM’s house and AR noticed she had some self-harm marks on her leg. AR asked about them and why she was self-harming. LM said she was self-harming because her father touched her. AR understood that to mean touching of a sexual nature. LM was hesitant, she was looking down and was not ‘enthusiastic’ to tell her.[123]
Cross-examination
[123] T 217-218.
The conversation AR had with LM was outside her house on Eva Street. AR said she was also self-harming by cutting herself.[124] AR was aware that LM was self-harming for a few months before this occasion. AR had also discussed with LM the trauma AR was going through prior to this occasion.[125]
[124] T 218.
[125] T 219-220.
LM did not use the word ‘sexual abuse’ in that conversation.[126] She had a subsequent conversation with LM on the same topic. It was around 2017. She and LM were around 22 or 23. LM brought it up in a way that made AR think she did not recall their previous conversation.[127] LM told AR in the second conversation the abuse was of a sexual and sometimes verbal nature.[128]
[126] T 220.
[127] T 221.
[128] T 222.
TM
TM gave his evidence in a closed court. Those arrangements were made because TM was a vulnerable witness. I have not used those special arrangements to influence the weight I attributed to the evidence of TM and nor have I drawn any inference adverse to the accused.
TM is LM’s brother, and he was born on 29 December 1990.[129] After his father moved out of the Eva Street home, he lived in the Virginia Caravan Park. He and LM visited the accused in the caravan park on some weekends, now and then.[130] Their mother dropped them off. There were times when he went on his own; sometimes he and the accused had a day at the racetrack.[131]
[129] T 223.
[130] T 223.
[131] T 224.
The accused visited them at Eva Street now and then, around twenty times.[132] Now and then his mother was not home during those visits.[133]
[132] T 224.
[133] T 225.
The accused eventually bought a house in Price. It was an old run-down stone house. He visited there once or twice a month, sometimes with his sister. His mother would drop them off and sometimes stay for a couple of hours. There were times when he visited on his own.[134]
[134] T 225.
TM said he and LM slept in bedroom three in two single beds. He identified that on P3 as bedroom 3. After the master bedroom was renovated, he and LM slept in the bedrooms marked two and three. He was around 15 or 16 when the master bedroom was renovated. He was diagnosed with diabetes when he was 11 and at that time, they were in their grandparent’s house in Price which was being renovated. Their grandparents went to Queensland for six months and the accused bought his house in Price after that. TM later said, ‘so, with the renovating going on it was just a slow development of getting the house built. So that’s why I can remember it being 14-15 years old’.[135]
Cross-examination
[135] T 225-228.
TM said he remembered the renovation of the Price house because he helped the accused with it. This was when he was 15 or 16 and continued until he was about 21 years old.[136]
[136] T 229.
TM was shown photographs of a caravan park cabin and said the cabin looked like the accused’s cabin in the Virginia Caravan Park. It had the same wood panelled walls and cream vertical blinds. TM was shown a plan of the cabin and said it appeared to show the same layout as the accused’s cabin: Exhibit D5.[137]
[137] T 229-230.
TM could not recall the accused making any payments into a bank account in his name when he was 16.[138] A bank statement from Community CPS in the name of the accused was tendered: Exhibit D12.
[138] T 231-233.
AM
AM married the accused in September 1989 in Adelaide. They then moved to Tasmania, where TM was born in 1990. AM said that there were occasions of coercive control in her relationship with the accused when they were in Tasmania. That included things about her appearance and what she was doing.[139]
[139] T 235.
LM was born in Tasmania in 1993. The accused left the family home when LM was three years old, in 1996. She kept in phone contact with the accused, and he returned to Tasmania and they resumed their relationship and decided to move to Williamstown, South Australia. They rented a house on Yettie Road for approximately 12 months. AM was working part-time as a registered nurse/midwife. The accused had a casual position, but she could not recall where that was.[140]
[140] T 236.
They bought a house on Eva Street in 1997. She and the accused separated between 12 and 18 months later. AM had had enough of the emotional abuse, some of which occurred in front of LM. When asked to describe that emotional abuse she said:
Put downs, you know, those kinds of things, you know, for instance, when I was late home from work, I was accused of doing other things than being at work…Just about my appearance mostly and who I was seeing, my family and things like that…Just that I looked – he often said that I looked like a man with the way I dressed.[141]
[141] T 237, 18-28.
After she separated from the accused and he moved out of Eva Street, she was working as a registered nurse midwife at the local hospital. She did three or four shifts in a fortnight which included day (7.00am – 3.30pm), afternoon (1.00pm – 9.30pm) and night (9.00pm – 7.30am) shifts. Those shifts were on weekdays and weekends.[142]
[142] T 238.
When AM was working, the children would be looked after by her mother, sometimes family daycare and the accused. The accused looked after the children infrequently; two or three times a month. When he looked after them at Eva Street it would always be overnight. He slept in AM’s bedroom with her. That arrangement was in place until the children were able to look after themselves, when LM was around 16 years old.[143]
[143] T 239, 241.
The children visited the accused in the Virginia Caravan Park between two and ten times.[144] AM could not say on how many occasions the children stayed overnight in the accused’s cabin. AM stayed there once or twice with the children.[145]
[144] T 239.
[145] T 240.
The accused bought a house in Price, after renting a transportable home near his parents.[146] She visited his house with the children, and on other occasions she would drop them off and they would stay. AM could not say how often the children stayed there without her. AM stayed overnight when it was the accused’s 40th birthday in 2003.[147] She slept in the accused’s bedroom with him, and she thought the children slept in the same room.[148]
[146] T 241.
[147] T 242.
[148] T 243.
There were renovations to the house at Price. When those renovations started there was a room that was liveable: ‘the lounge room and the kitchen were being used, and the bedrooms were done one at a time’.[149]
[149] T 243, 26-28.
Around the time of LM’s 21st birthday, AM learnt that LM had made allegations that the accused had sexually abused her. As a result, AM telephoned the accused to ask him about it directly. She rang him and said, ‘[LM] has said that you sexually abused her, and I believe her’. AM said the accused told her he could not remember that since the car accident. AM was sure that she used the words ‘sexually abused’. She was speaking in a soft voice because she was shaking. The accused did not ask her to clarify what she was talking about.[150]
[150] T 243-245.
AM said the accused was in a car accident in which he was injured and taken to the Lyell McEwin Hospital. AM could not remember the exact date of the accident, but it was about 11 years ago.[151]
[151] T 244.
In 2018, AM rang the accused to tell him that LM was having counselling for the sexual abuse. She was certain she used the words ‘sexual abuse’ in that conversation. She asked him if he could contribute to some of her counselling fees. She told him the sessions cost $250 each. She did not ask him to cover the entire cost. She wanted him to contribute whatever he thought was appropriate. He said that he had a new bride, and she was applying for an Australian Visa which was going to cost $10,000 so he did not have much money. He sent her $1000. He did not say anything else during that conversation.[152]
[152] T 245-246.
A bank statement in AM’s name for the period 1 November 2017 – 31 January 2018 was tendered: Exhibit P13. The credit for $1000 on 31 January 2018 was money deposited by the accused. By this time there had been a property settlement which involved the division of property. She retained custody of the children.[153]
[153] T 247-248.
Text messages between AM and the accused between 24 January 2018 and 31 January 2018 were tendered: Exhibit P14. AM said that she and the accused had already agreed that he would send her some money. She forwarded the BSB and account number. She rang him to ask him if he was having trouble transferring the money. The reference in the messages to ‘[LM]’s choice’ was because LM did not want to receive any money from the accused; she did not want anything to do with it. LM was aware that the accused was contributing to the counselling, but she did not want the money going into her account.[154]
Cross-examination
[154] T 249.
AM agreed that in 2008-2009 there were renovations at the back of the Eva Street house. The shed was converted into a retreat for TM. Before this he had occupied a bedroom inside the house. AM was shown D9 and agreed that the photographs showed LM inside the shed during the renovation period.[155]
[155] T 249-250.
AM agreed that in a statement she made to police on 30 January 2019 she said, ‘The children were only babysat once by [the accused] at the Virginia caravan park for an overnight stay. They actually stayed for a couple of nights, and this was when I had family over for my father’s 70th birthday’.[156] AM said this did not make her think that the children stayed overnight on substantially fewer than ten occasions.[157]
[156] T 251 6-9.
[157] T 252.
AM said that she was working 24 hours a week when she was living in Eva Street with the accused. After he left the family home, she changed contract a few times but continued to work mostly part-time. When she needed childcare, her first port of call was her mother who lived nearby. The children were looked after by her mother at Eva Street or went to family daycare when she was at work.[158] When asked whether the accused would come and babysit when neither of those two options was available, she said:
No, so [the accused] came to the house quite spasmodically, he’d just show up at the house on occasion without any prior arrangements.[159]
[158] T 252-253.
[159] T 253, 17-19.
The accused would not always visit unannounced. There were times when she had arranged for him to look after the children but that was less frequent. Sometimes when the accused attended unannounced and her mother was there to look after the children, she would tell her mother she should go home. However, AM then said she could not recall an occasion when he attended unannounced and her mother was there looking after the children.[160]
[160] T 253-254.
A property settlement order of the Family Court was tendered: Exhibit D15. AM agreed that D15 recorded the orders of the Family Court on 22 September 1999 regarding the distribution of property between herself and the accused. The accused agreed to transfer his entitlement to half of the Eva Street property in return for AM agreeing not to seek child support for three years. The parties bore their own costs and AM kept possession of all the furnishings at the property and her car.[161] AM and the accused kept their respective superannuation entitlements.[162]
[161] T 256.
[162] T 257.
The application for divorce was tendered: Exhibit D16. AM agreed that she and the accused separated on 15 November 1999. AM agreed that when she wrote in the divorce application ‘infrequent visits by father (not planned)’ that was an accurate representation of the situation. When she ticked ‘no’ next to ‘do you propose any changes to these arrangements’ she said that was her state of mind at the time.[163]
[163] T 259.
AM agreed that there would have been one occasion when she took the children to Roseworthy to visit the accused when he was the full-time manager of a chicken farm. She could not say if there was only the one occasion. She said they definitely visited at Christmas when his parents and extended family were there.[164]
[164] T 261.
AM said she was not sure whether the accused was living in his home at Price on the occasion of his 40th birthday on 15 May 2003. It was at the golf club in the community sports centre with about 40 people. AM stayed overnight but she could not remember where. AM had been to the accused’s house in Price by that time. Some of the rooms were in liveable condition but she could not remember which ones were. AM was shown D7, and she said she recognised the beds in the rooms on page 4 and 5 but she could not remember when those beds were placed in those rooms.[165]
[165] T 263-264.
TM helped with the renovations to the retreat at Eva Street. He also helped with the renovations at the house in Price. She could not recall how old he was when he was doing that.[166]
[166] T 264.
AM agreed that the accused came to her house to lay pavers there after the divorce.[167] She thought it was generally an amicable separation; they were still talking and did things as a family unit such as Christmas and birthdays.[168]
[167] T 264.
[168] T 265.
A bank statement dated 31 October 2009 was tendered: Exhibit D17. It recorded a transfer to A Plane of $3000 on 5 October 2009. She could not recall receiving that money into her bank account. Without evidence of the money going into her bank account she could not say if the accused sent her money for something. He had never transferred money into her account before.[169]
[169] T 265-266.
AM said she could not recall if the car accident in which the accused was involved was in June 2011, but she was at the accident site and went with him to the Lyell McEwin hospital. His vehicle was a write off.[170] He was in the hospital for four hours and following his discharge he stayed with her. She said he did not have any physical injuries, and the scan of his head was clear. He stayed with her because he did not have transport to get home.[171]
[170] T 266.
[171] T 267.
In the second conversation with the accused regarding LM’s counselling fees, AM could not recall him referring to his poor memory as a result of the car accident. AM accepted that the accused at no time agreed with the allegation that she put to him but agreed that LM did not tell lies.[172]
[172] T 267.
AM said that the accused was emotionally abusive to his children, and he was often in an out of work. His income was very limited, and AM felt like a single parent, even in the marriage. AM absolutely rejected the suggestion that in the first phone call when she told the accused LM alleged he sexually abused her, he said that he did not.[173]
[173] T 268.
The accused’s record of interview
The accused was interviewed by audio-visual means on 1 October 2018. His wife, LP, was present. He was told that he was being interviewed about allegations made by LM. The accused said he had not seen his children for a while and that his ex-wife told him a few years ago that he was not welcome and not to come up there anymore.
The accused said he lived in a cabin in the Virginia caravan park for about two years, but he did not know when that was as it was a long time ago. When the accused was told that LM alleged that her mother was working full time and would sometimes drop off LM and TM to see him, he said ‘Right. Not very often’.[174] When asked how often she visited he said, ‘Not very, oh I can’t remember her visiting much at all’.[175]
[174] MFI P18A, 166.
[175] MFI P18A, 170.
The specific allegations were then put to the accused:
QUm she tells us that sometime between ’96 and ’97 she visited, um she was alone with you um and that ah she was on your bed and then she says that you’ve come over and you’ve started touching her chest area.
ANo, that’s that’s…
QOk.
ASorry.
QI have to go through this yep
ASorry yeah but this, yeah I find that, no
QOk.
AUntrue.
QUm she says she doesn’t remember much but that you were touching her, um massaging her across her chest and then you put your hand under her top
ANo
QNo? She then says that you pulled down her lower clothing, including her underwear
ANo
QThat you then got off the bed and walked around to the edge of the bed, um opened her legs and began rubbing her vagina with your hand.
ANo, that’s,
QNo.
AThat’s ridiculous. Why would I do that?
QOk. Um she says you touched her clitoris and put your finger inside of her vagina, um and she says that it felt sore, um and that you’ve licked her vagina and stuck your tongue inside her vagina
ANo, this is ridiculous.
QOk
AIt is ridiculous, sorry, I can’t
QBut this is the allegation
AI know but, yeah
QI never had her there like
AYou never what sorry?
QI never had her on my own like[176] [Emphasis added]
[176] MFI P18A, 181-295.
The accused denied sexually assaulting LM and said, ‘I wouldn’t even touch a child like that’.[177] He said, ‘never even wanted to touch children’.[178] The accused then said that after his wife divorced him, he had a girlfriend at Salisbury so ‘no, it’s ridiculous’.[179] He said that he hardly ever saw his children.[180] The interview continued:
[177] MFI P18A, 215.
[178] MFI P18A, 219.
[179] MFI P18A, 221-225.
[180] MFI P18A, 281.
QOk. So you’re saying you don’t really remember [LM] and [TM] coming to the caravan park.
ANo.
QAt all?
ANo, not at all.
QOk. Um but [LM]’s obviously saying that her and [TM] had come when mum was at work and then she’s saying that this happened.
ANo.
QOk. Have you got anything you want to ask about that?
QUm yes, so at the, you said you had a girlfriend, was that while you were still living at the caravan park?
AYeah, yeah.
QOk, so how long after you separated from ah [AM] and you moved into the caravan park, did you find this girlfriend?
AOh probably six months or something like that?
…
QDid she come to the cabin where you were staying?
ANo, no, I went to her house.
QOk, alright.
AAnd I was hardly ever at, at the park once I was going out with her so
QRight. So you don’t remember the kids ever coming to you or your
ANo
QYour cabin?
ANo.
A…
QNow does that mean it didn’t happen or does that mean that you don’t remember, just don’t remember it happening?
AIt’s just, it never happened.
…
QSo how is it then?
AHey?
QHow is it then that she can describe the unit
ALike when they visit maybe, but I never had them there alone, like the two of them, or one of them on their own so
QSo who else would have been with you then? Are you saying that [AM] was with you when they were there?
AShe, she might have brought them there, I don’t, because I still don’t remember them even being there that much at all.[181] [Emphasis added]
[181] MFI P18A, 232-285.
In this case, the evidence of AR and LM regarding the initial complaint diverged. AR said the conversation took place when they were both 14 years old. AR said that LM told her she was self-harming because her father touched her. AR said LM did not use the words ‘sexual abuse’. In a subsequent conversation eight to nine years later AR was left with the impression that LM had no recall of the initial complaint. It was only in that second conversation that LM said the abuse was of a sexual and verbal nature. The second conversation was elicited in cross-examination and is not an initial complaint. It cannot be used for consistency purposes.
I prefer the account of AR regarding the timing and content of the initial complaint and that LM later could not recall making it. I detected no bias when AR gave evidence, and she appeared to be a forthright and frank witness.
I reject LM’s evidence that she now recalls that conversation and that she told AR the accused sexually abused her. In evidence, she asserted confidently that she had a clear recollection of the initial complaint being made to AR when she was sixteen years old. The next day when cross-examined she said the conversation occurred when she was thirteen years old. However, LM could not recall this conversation or what she said to AR when she spoke to police on 17 September 2021 and when she first spoke to police in 2018, she said the first person to whom she complained was her boyfriend around 6 years before, in 2012. She agreed in evidence that when she told police this, she did not remember either of her conversations with AR.
LM’s evidence regarding the timing of the initial complaint was internally inconsistent. Her evidence on the timing of the subsequent conversation with AR was inconsistent with the evidence of AR, which I prefer.
I found implausible LM’s evidence that at 16 years of age she did not know that what the accused was doing to her was wrong. It was inconsistent with her account of the terms of her complaint, namely that the accused had sexually abused her, which she accepted conveyed something improper and wrong had happened. She gave evidence that she learnt about sexual intercourse when she was twelve years of age.
The initial complaint as described by AR demonstrates consistency of conduct, in so far as it was reasonable for a person in LM’s position to complain to her best friend. However, the terms of the complaint were so general as to render it incapable of demonstrating consistency of account to a degree that could bolster LM’s credibility. Further, LM’s internally inconsistent evidence on this topic and unconvincing assertion of recalling the timing and content of the initial complaint, are matters I have taken into account in assessing her credibility and reliability more broadly. This was yet another example of how the confidence and certainty with which she expressed in evidence a memory of an event was undermined.
TM
TM gave his evidence in a straightforward manner. I did not detect any guile or bias towards or against the accused or LM. I accept his evidence that the photographs in D5 showed a cabin with the same layout and appearance as the one occupied by the accused. Notably, he said it had the same wood panelled walls and cream vertical blinds.
Given the concerns I have regarding LM’s evidence of the appearance of the cabin, together with her prior inconsistent account regarding the curtains, I prefer TM’s evidence on this topic. I am satisfied and find that the accused’s cabin had the same layout and appearance of the cabin depicted in D5.
TM could recall the renovations of the Price house, and I accept his evidence that he helped the accused with the renovations. How often he helped and what he did was not further explored by either counsel. However, his evidence regarding the timing of the renovations was vague and I cannot use that evidence as a reliable foundation for a finding as to the timing of the completion of renovation of each of the three bedrooms. However, I accept his evidence that the process took a number of years.
Surprisingly TM was not asked about the timing of the completion of the retreat at Eva Street into which he moved.
TM did not give any evidence to corroborate LM’s account of being sent out of the cabin or the house at Eva Street on any occasion. TM did not give any evidence to corroborate LM’s account that the accused was verbally abusive towards him, LM or AM.
AM
AM’s antipathy towards the accused was obvious when she gave evidence. I make no criticism of her for this, given her belief in the truth of her daughter’s allegations and her own view of the accused’s treatment of her and their children during the marriage. In essence, AM felt as if she was a single parent and the principal breadwinner and was often belittled or put down by the accused.
Curiously she and the accused maintained relations to the extent that AM would sometimes stay overnight with the children at the accused’s cabin and would sleep in his bed; when he stayed overnight at Eva Street after the separation he slept in her bed. She also said she slept in the same bed with him on the night of his fortieth birthday party.
AM’s evidence about the renovations at the house in Price was relatively general and did not corroborate AM’s account that she was staying overnight in a furnished and renovated bedroom separately from TM between 2003-2005.
AM said that when the renovations started there was a room that was liveable and then said the lounge and the kitchen were being used and the bedrooms redone one at a time. In this regard, her evidence was broadly consistent with the evidence given by EP in the defence case. In examination in chief, she suggested that on the occasion of the accused’s 40th birthday (May 2003) she slept in a bedroom with the accused, and she thought the children slept in the same room, but she could not be certain.
However, in cross-examination she said that she could not be sure whether the accused was living in the house at Price on his birthday on 15 May 2003. She stayed overnight but could not recall where. She said his birthday party was held in the golf club in the community sports centre. This evidence was consistent with the evidence given by EP in the defence case. She then said that some of the rooms were in liveable condition, but she could not remember which. She agreed that she and the children stayed in the transportable home the accused lived in before he moved into Clemintina Street. She was shown D7 and recognised the rooms on pages 4 and 5 but could not recall when they were in that state. She said TM helped with the renovations but did not know how old he was then.
Given the state of her recollection about the renovations, where AM’s evidence about the state and timing of the renovations conflicts with that of EP, I prefer EP’s evidence for reasons I set out later in this judgment.
AM agreed that in 2008/2009 the shed at the back of Eva Street was converted into a retreat which was then occupied by TM. TM was still a teenager then. I note that LM could not recall when TM moved into the retreat and his former bedroom was converted into a room with a desk and computer. However, she said the accused showed her pornography after the room had been converted into a computer room and she thought she was ten years old. I accept AM’s unchallenged evidence regarding the timing of the conversion of TM’s bedroom into a computer room. I reject LM’s evidence that the occasion upon which she was shown pornography in that room occurred when she was ten years old. It could not have occurred until she was at least 14 years old. She said the abuse stopped when she was around 12 years old.
AM said that the children visited the accused in the cabin at the caravan park more than two but less than ten times. She said she could not remember how many times they stayed overnight. She stayed there once or twice overnight. A prior inconsistent statement regarding the number of occasions the children stayed overnight in the cabin at the caravan park was proved. AM said in a statement dated 30 January 2019 that the accused only babysat the children once for an overnight stay. That was when it was her father’s 70th birthday and she had family over. The children stayed with the accused for two nights. In these circumstances, I am not prepared to accept AM’s evidence that the children stayed overnight on any other occasions when she was not present. I note that in examination in chief she was unable to say how many times the children stayed overnight in the cabin. I accept AM’s evidence regarding the timing of the accused moving out of Eva Street. She said he moved out 12-18 months after they moved into Eva Street. It is an agreed fact that the house at Eva Street was purchased on 14 March 1997. I am satisfied and find that the accused did not move out until mid to late 1998. It follows that he did not move into the Virginia Caravan Park until mid to late 1998. Any offending alleged to have occurred in his cabin could not have occurred until LM was approaching 5 years of age or was 5 years of age.
I accept AM’s evidence that the accused visited the Eva Street house spasmodically and often unannounced. It is clear from AM’s evidence that her preferred babysitting option was her mother (or daycare) and that the accused was the last resort. In her divorce application, she recorded ‘infrequent visits by father (not planned)’ and recorded that she did not intend to change that arrangement.
I accept AM’s evidence that she was unhappy in the marriage and that this was because the accused was not always gainfully employed, did not earn a lot of money and belittled her or accused her of doing things other than work. I do not consider that what AM described rose to the level of emotional abuse but acknowledge that her experience is subjective and accept that AM found the accused’s behaviour confronting and unpleasant.
AM used the descriptor ‘emotional abuse’ when describing the accused’s behaviour towards the children. I infer and find that she was describing similar behavioural patterns towards the children. Nevertheless, she maintained a relationship with him for many years, and they continued to attend functions as a family, and she permitted the accused to visit or be visited by the children.
In the circumstances, the probative value of this evidence in assessing the likelihood of the accused sexually abusing LM is negligible and I have put it to one side.
Telephone conversations and payment of counselling fees – implied admissions?
In evaluating AM’s evidence on this topic, I have considered the accused’s responses in his record of interview about the conversations and the payment of counselling fees.
AM was not challenged in cross-examination about the fact of the first conversation with the accused around the time of LM’s twenty-first birthday in which she told the accused that LM alleged he had sexually abused her. She rejected outright the suggestion that he had denied the allegation. However, she said his response was that he could not remember since the car accident. In the record of interview, the accused agreed AM rang him and accused him. When it was put to him that she asked him what happened and he said he could not remember, his response was ‘I don’t even, I didn’t touch her’.
I am satisfied that AM had a telephone conversation with the accused at some point in late 2014 in which she accused him of sexually abusing LM. I am satisfied and find that during that conversation, the accused said that since the car accident he could not remember. I am not prepared to find that this was an implied admission. There is no evidence to refute the accused’s assertion of memory difficulties since the accident. I place no weight on AM’s hearsay assertion that his head scan was clear. I have found that he was admitted to the Lyell McEwin hospital following the accident. I cannot discount the reasonable possibility that in saying he could not remember since the accident, the accused was being truthful and thereby signalling an inability to challenge the allegations rather than an acceptance of them. I am not prepared to draw the inference that his failure to deny the allegations outright and instead assert a defective memory amounted to an implied admission.
AM was not challenged about the fact of the second conversation in 2018 when she asked the accused to contribute to the cost of counselling for the sexual abuse. She did not ask him to cover the entire cost but to contribute whatever he thought appropriate. She told him the sessions cost $250 each. I am satisfied and find that this conversation occurred before 24 January 2018 (the date of the text messages in P14). I am satisfied and find that the accused transferred $1000 to AM on 31 January 2018 in response to that request. According to D10, by the time of this phone call, the total of the counselling fees was far in excess of $1000 as LM had had more than thirty sessions.
In his record of interview, the accused said that AM asked for money for treatment for LM to help her for the ‘allegation’. He said he never touched her, ‘not in that way’ but paid the money because LM had mental problems and he knew what that was like.
AM accepted that in this conversation the accused did not at any time agree with the allegation that he had sexually abused LM. I note that AM said she told the accused that LM did not tell lies. She volunteered this aspect of the conversation in cross-examination when it was put to her that the accused at no time agreed with the allegation of sexual abuse. AM explained that she introduced that topic into the conversation. There would be no need to say this to the accused unless the accused had in some way signalled his dissent to the proposition that he had sexually abused LM. I infer and find that the accused said something to AM in this conversation that suggested to her that he did not agree with the allegation. In those circumstances, I am not prepared to find that his assent to the proposition that LM did not tell lies was an implied admission. I am not prepared to draw an inference that in accepting the proposition that LM did not tell lies, the accused was admitting to having sexually abused LM (because, if she said he did that must be true because she did not tell lies). An acknowledgment that LM did not tell lies was a statement of historical fact but not necessarily an assent to the proposition that LM had not lied about the allegations and therefore they were true. I am not prepared to find that the payment of $1000 for counselling fees was an implied admission. I cannot discount the reasonable possibility that the accused made a contribution because LM was his daughter, and he knew what having mental health problems what was like.
The accused’s record of interview
I remind myself of the correct approach to the evaluation of the accused’s record of interview. The High Court in De Silva v The Queen (2001) 127 A Crim R 116 approved a form of Liberato direction which it extended to treatment of an accused’s account in a police interview:[256]
(i) if you believe the accused’s evidence (if you believe the accused’s account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused’s evidence (if you do not believe the accused’s account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?
[256] De Silva v The Queen (2019) 268 CLR 57 at [12].
I reject the submission that the accused lied in his record of interview regarding the children visiting the caravan park cabin. When viewed as a whole, the accused’s responses in the interview did not amount to an assertion that LM never visited him at the cabin. The interviewer put to the accused that LM visited him ‘alone’ when putting the allegations and the accused said he never had her on his own. It is clear that the accused was suggesting that he did not recall the children visiting after he started going out with his girlfriend, CC because he was hardly ever at the caravan park because he went to CC’s house. The accused accepted that they may have visited but he did not remember the children being there much at all.
The accused consistently denied the allegations in the interview. He did not suggest that there was no opportunity for the offending to have occurred. He accepted that he babysat the children at Eva Street but said it was not very often. He accepted that the children stayed overnight at Price, but his recollection was that AM was there. He suggested the possibility of the children coming to his house with his own mother.
I reject the submission that the accused deliberately refrained from volunteering the reason why AM did not want him around anymore. It is clear from his initial answers in the interview that AM had told him that he was not welcome to come around anymore and she did not want him there. It was not suggested by AM that she had excommunicated the accused after learning of the allegations. She said that any arrangements for the accused to assist in babysitting the children ended when they were 16 years old, which for LM was in October 2009.
The accused was on notice of the allegations before the interview was conducted. However, there is no evidence that he was ever told any further detail of the alleged sexual abuse, its frequency, duration and nature. Accordingly, when the specific allegations were put to him in the interview, I am satisfied and find that this was the first time he learnt of them. The accused appeared genuinely shocked, surprised and disgusted when the specific allegations were put to him. I am satisfied that his reaction was not feigned.
I note that the allegation that the accused showed LM pornography was not put to the accused in the interview and thus he was not given an opportunity to deny or refute that aspect of the offending.
In my overall evaluation of the denials in the record of interview, I have taken into account my conclusion that the accused has not made any implied admissions in the conversations with AM or by making a contribution to the counselling fees. I am left in a position where I cannot reject the accused’s denials as not reasonably possibly true.
EP
I found EP to be an impressive witness. I believed him when he said he did not tell lies and he did not lie for himself or anyone else. EP’s evidence was supported by contemporaneous documentary evidence in the form of receipts and invoices and photographs.
I accept EP’s evidence that the accused was living with BP and EP between April and June 2003. This timeline accords with the date that the accused finished working on the chicken farm. I also accept EP’s evidence that the accused’s birthday party was held at the clubrooms in Price. I note that AM’s evidence was to the same effect.
I accept EP’s evidence that D20 showed the room marked bedroom 3 on P3 before the accused moved in at the end of 2003. I accept EP’s evidence that the second photograph in D8 showed the house in 2003 before the accused moved in.
There was no challenge to EP’s evidence of the work that he and the accused did to renovate and rebuild the house. The amount of work that was done was significant and time consuming. His evidence that bedroom 3 was rebuilt and the wall on the passage side was finished so the accused had somewhere to put his table and chairs and do some cooking made perfect sense. In other words, his evidence that enough of the house was renovated to make it liveable for the accused was entirely plausible. This was not a professional renovation or one that had a deadline. The accused was separated from AM and divorced by 16 May 2003. His contact with the children was infrequent and AM did not rely upon him to babysit the children. She had sole custody of the children. I infer and find that there was no urgency in completing the renovation of the remaining bedrooms in so far as the children coming to stay was concerned. I accept EP’s evidence that he never saw the children at this house.
EP’s explanation of the reasons why the renovation took so long also accorded with commonsense. EP was challenged as to the order in which the renovations took place.
I accept EP’s evidence that the wall between bedroom two and three was knocked down in 2006. The receipts and invoices generally support EP’s evidence regarding the timeline of the renovations.
In evaluating EP’s evidence that the bedroom closest to the front of the house on P3 was the last bedroom renovated and his concession that he may have been wrong when he said that photograph 6 was taken in late 2006 and photograph 7 in 2005/2006 I have taken into account the forensic disadvantage occasioned by the delay in prosecuting this charge.
I found the following aspect of EP’s evidence particularly compelling:
…I know what I did. I rebuilt that house. I know every single bit of the house and how it was done and that bedroom was definitely the last room we finished.[257]
[257] T 329.
I accept EP’s evidence that that state of the renovations was such that the children could not have slept in the house between 2002 and 2005 unless they all slept in the same bed with the accused. I accept EP’s evidence that the two single beds in the bedroom marked bedroom 2 on P3 were not in that room until at the earliest late 2006 and prior to that there was nothing in that room. I am unable to accept as reliable LM’s evidence that bedroom 3 was the room she always stayed in from 2003 and TM slept in bedroom 2 and the accused’s room was up the front. I cannot be satisfied that LM stayed overnight at the accused’s house in bedroom 3 between 2003 and 2005. LM said there was definitely no sexual touching after she got her period when she was around 12 years old. LM turned 12 on 17 October 2005 and 13 on 17 October 2006. These matters fortify the reasonable doubt I have regarding the reliability of LM’s evidence about the alleged offending at Price.
Finally, I accept EP’s evidence regarding the type of mobile telephone the accused had between 2004 and 2007. EP identified the Nokia mobile phone depicted in D11 as the type of mobile phone the accused had during that time. I have significant reservations regarding the likelihood of that mobile phone displaying images of the kind described by LM.
Conclusion
It is my task to determine whether the prosecution has proved the accused’s guilt beyond a reasonable doubt based on the whole of the evidence. The whole of the evidence includes the accused’s record of interview and EP’s evidence, together with the exhibits tendered through EP.
The findings I have made regarding the evidence of LM and the acceptance of other evidence where it conflicts with her evidence, has left me in a position where I have a reasonable doubt regarding reliability and also, to a degree, the credibility of material aspects of her evidence. The compelling nature of EP’s evidence and my conclusion that the accused’s denials in his record of interview are reasonably possibly true, have fortified that reasonable doubt.
It follows that I am not satisfied beyond a reasonable doubt that the accused committed the offence charged.
Verdict
I find the accused not guilty of sexual abuse of a child.
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