R v Nankivell - [2024] SADC 22

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NANKIVELL
Criminal Trial by Judge Alone
[2024] SADC 22
Reasons for the Verdicts of his Honour Auxiliary Judge Barrett
8 March 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
The accused is charged with Maintaining an Unlawful Sexual Relationship with his twin stepdaughters during their primary school years. He is also charged with Aggravated Assault against one of them. Their evidence is cross-admissible.
The accused gave evidence denying the charges. He called a character witness.
Held: The accused is guilty of all three charges.
Evidence Act 1929 (SA), referred to.
R v O'B [2014] SADC 12; De Sa v The Queen [2021] SASCFC 22; R v Jones [2018] SASCFC 80; R v Trimboli (1979) 21 SASR 577; R v Palazoff (1986) 43 SASR 99; R v C, CA [2013] SASCFC 137; R v Bonython-Wright (2013) 117 SASR 410; R v W, RG [2019] SADC 180; R v M, BJ (2011) 110 SASR 1; R v Bauer [2018] HCA 40 ; R v R, PA [2019] SASCFC 19; MDM v R [2020] SASCFC 80; R v P, S [2016] SASCFC 97; R v Schlaefer (1984) 37 SASR 207; R v S, DD (2010) 109 SASR 46; R v Maiolo (No 2) [2013] SASCFC 36; R v Manunta (1989) 54 SASR 17; Douglass v R [2012] HCA 15; R v Calides (1983) 34 SASR 355; R v Lavery (2013) 116 SASR 242; R v Liberato v R (1985) 159 CLR 507, applied.

R v NANKIVELL
[2024] SADC 22

The accused is charged with two counts of Maintaining an Unlawful Sexual Relationship with a Child and one count of Aggravated Assault. It is alleged that he maintained a sexual relationship with his twin stepdaughters for about seven years while they were attending primary school, broadly between the ages of six and 12. It is further alleged that he assaulted one of the girls in the year she turned 15.
I reproduce the Information:
Count 1
Offence Details:
Maintaining an Unlawful Sexual Relationship With a Child (Section 50(1) of the Criminal Law Consolidation Act, 1935)
Particulars
Neil Graham Nankivell between the 1^st day of January 2003 and the 31^st day of December 2009 at Mount Gambier and other places, maintained an unlawful sexual relationship with MK, 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 vagina with his fingers on more than one occasion;
b)penetrating her labia majora with his fingers on more than one occasion;
c)touching her vagina with his penis on more than one occasion;
d)masturbating his penis in her presence on more than one occasion; and
e)communicating with her with the intention of making her amenable to sexual activity on more than one occasion.
This offence may be a ‘prescribed offence’ within the meaning of sections 5 and 38 of the Child Safety (Prohibited Persons) Act, 2016.
This may be a ‘disqualification offence’ within the meaning of sections 18A and 18U of the Disability Inclusion Act 2018.
Count 2
Offence Details:
Aggravated Assault (Section 20(1) of the Criminal Law Consolidation Act, 1935)
Particulars
Neil Graham Nankivell between the 1^st day of January 2003 and the 31^st day of December 2009 at Mount Gambier assaulted MK.
Circumstances of Aggravation
It is further alleged that Neil Graham Nankivell committed the offence knowing that the victim of the offence was a child who normally or regularly resides with him.
This may be a ‘presumptive disqualification offence’ within the meaning of sections 26A and 38 of the Child Safety (Prohibited Persons) Act, 2016.
Count 3
Offence Details:
Maintaining an Unlawful Sexual Relationship With a Child (Section 50(1) of the Criminal Law Consolidation Act, 1935)
Particulars
Neil Graham Nankivell between the 1^st day of January 2003 and the 31^st day of December 2009 at Mount Gambier and other places, maintained an unlawful sexual relationship with AK, 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 vagina with his penis on more than one occasion;
b)penetrating her labia majora with his penis on more than one occasion; and
c)rubbing his penis against her vagina on more than one occasion.
This offence may be a ‘prescribed offence’ within the meaning of sections 5 and 38 of the Child Safety (Prohibited Persons) Act, 2016.
This may be a ‘disqualification offence’ within the meaning of sections 18A and 18U of the Disability Inclusion Act 2018.
Course of the trial
The prosecution called as witnesses the two complainants, who are now aged 26, their mother and the person to whom each made an initial complaint. Exhibits were tendered and there were agreed facts.
The accused gave brief evidence denying the offences and he called a character witness.
Background
At all relevant times the parties lived in a country town. The complainants’ mother separated from their father when the girls were aged two. When they were aged about six their mother met the accused. The couple purchased a house together in July 2003. The girls started primary school in that year.
The accused has five children by two previous marriages, two who were grown up at the time he lived with the girls’ mother, and three who were around the same age as the twins. There was a boy who was two years older than they were, a boy who was one year younger and a girl who was two years younger. The older two children appear to have had little to no contact with the twins. The younger three children lived with their mother in a town some 200 kilometres away. They would stay with their father on weekends once or more each month. Sometimes they would stay for part of the school holidays.
The older boy moved in with the accused when he was about 15, by which time the twins had started high school. The younger boy moved in later. The younger girl did not move in at all.
The twins would stay with their father on Wednesday nights and alternate weekends.
The accused turned 44 in 2003. He and the girls’ mother married in January 2007 but separated in 2014.
In 2014, the accused left the matrimonial home. There were no children of the marriage.
The accused was a police officer. He worked three shifts, a morning shift from 7.00 am to 3.00 pm, an afternoon shift from 3.00 pm to 11.00 pm and a night shift from 11.00 pm to 7.00 am.
The girls’ mother worked part time for the first year or so after the couple moved in together, but thereafter, she worked full time.
The complainants did not report their allegations until they were adults. They first told their partners separately. It is not entirely clear when each told their partners.
They complained together to their mother on 22 June 2019.[1]
[1] T148.
They reported online to Bravehearts on 27 January 2021. They did so on separate devices while they were in the same house.[2]
[2] Agreed Fact 10, P7.
On 15 March 2021, they drove together to Adelaide and made reports to SAPOL.[3]
[3] T119.
The accused was arrested on 22 January 2022.[4]
[4] Agreed Fact 11, P7.
Evidence of MK
MK said that the first recollection she had of the accused sexually abusing her occurred in the bedroom she shared with her sister. She was aged six or seven. She was alone in the room at the time, eating Jatz biscuits. The accused held her down on the bed with his arm across her chest. He moved his fingers around, then inside, the lips of her vagina. She said ‘no’ but physically froze. The accused did that to her many times over the years.[5] She was too scared to tell anyone.
[5] T20-T23.
MK said that the accused would also touch her on the vagina in the parents’ bed. She would go in there to say good night to him and might be under the covers watching TV. The touching would sometimes be over her clothing and sometimes under.[6]
[6] T24-T25.
MK remembers two specific occasions. The first was when she sustained a sore groin from playing netball. It is agreed that the twins played local netball between 2007 and 2012.[7] They turned 10 in 2007. MK says that on the night of the injury she was sitting on the parents’ bed with the accused and her mother. Her mother left the bedroom and took a shower in the family bathroom which could be reached from the master bedroom through a walk-in wardrobe. There was also access to that bathroom via another door from the hallway. While her mother was audibly in the shower, the accused said that he would give her a massage to relieve her soreness. As he did that, he rubbed her vagina, starting on the outside of her underwear but moving underneath so that he was touching inside the lips of her vagina. The touching lasted about 30 seconds.[8]
[7] Agreed Fact 9, P7.
[8] T25-T26.
MK said that there was an occasion when she took part in a cross country run in a neighbouring town. It was a hot day. When she got home, she took a bath. As she got out of the bath, the accused came into the bathroom. She had a towel around her but, despite her protest, the accused proceeded to dry her. While doing so, he rubbed her vagina with his fingers, both outside and inside the lips of her vagina. That touching also lasted about 30 seconds.[9]
[9] T26-T27.
The complainant’s family had a shack at a nearby town. They would sometimes go to and from the shack in different cars with different occupants, depending on the work commitments of the adults and other circumstances. MK said that on an occasion when she was alone with the accused in his car coming back from the shack, he touched her sexually. To protect herself from what she feared he might do, she was holding a pillow or pillows on her lap as she sat in the front passenger seat. While driving along, the accused removed the pillows with his left hand and rubbed her vagina for about 30 seconds both over and under her clothing. She was eight or nine at the time.[10]
[10] T28-T29.
It is common ground among the parties that the accused and the complainant’s mother would host poker nights in their garage. Anywhere between 10 and 40 people might attend. MK said that on a poker night when she was in year six at school, the accused came home before the guests started arriving. He was really drunk. He was staggering and slurring his words. He went upstairs to sleep it off.
Later, but still before the guests arrived, MK went upstairs to prepare for bed. The accused called her into his bedroom. She went in. The accused took up a position with his back to the closed door. He was aggressive. He told her to take her clothes off and get into bed. She was scared, but instead of getting into the bed, she jumped across it and got out of the room through the door to the walk-in wardrobe. She then went through the bathroom into the upstairs hallway. She was crying. She went downstairs to where her mother was preparing for the poker night.
MK said that she told her mother that the accused had told her to take her clothes off and get into bed. Her mother tried to calm her down but brushed off what she had said. Her mother said, ‘He’s not like that … he would have just wanted a bedtime cuddle’.[11]
[11] T32.
MK said that when she went into the kitchen the next morning, her mother and the accused appeared to be having a serious conversation. Her mother appeared to have told the accused what MK had said the night before. She made MK apologise to the accused.[12]
[12] T33.
The family had a swimming pool in the back yard. MK said that the accused would engage her and other children in a game in the pool called ‘cannonball’. He would crouch down in the shallow end of the pool, pull the children onto his knees then rise up, throwing them into the deep end. MK said that on multiple occasions when the accused did that to her, he would touch her vagina with his fingers, sometimes over her bathers and sometimes under. Her vagina would be under the water when he did that. Other people might be about, sometimes in the pool.[13]
[13] T33-T35.
MK said that the accused stopped sexually touching her when she went to high school. She started high school in 2010. She turned 13 in that year. Towards the end of her time at primary school, the accused’s sexual behaviour escalated. On a couple of occasions, he masturbated in her presence, ejaculating into his fingers. He rubbed the ejaculate onto her vagina saying that she needed his ‘juices’ to make her wet. She only had a ‘rough idea’ of what he meant.[14]
[14] T35-T36.
More than once he would rub his penis on her vagina. It happened in her bedroom. After rubbing his penis, he would get on top of her on the bed and rub his penis on the inside of the lips of her vagina.[15]
[15] T37-T38.
The accused would sometimes say things when he was doing something sexual to her. She remembered him saying ‘it’s OK, I’m not going to hurt you’ and ‘good girl’. He did not say that every time.[16]
[16] T38.
MK remembered an occasion when the accused said something else to her. She was in the hallway upstairs. He was in his bedroom. He said something along the lines that if she told anyone about what he was doing, he would go to gaol. That would leave her mother alone and she would not want to be the reason for that. This incident happened towards the end of her being at primary school.
MK said that she suspected that the accused was abusing her sister, but nothing was said by either of them when they were children. MK said that she and her sister would barricade their bedroom door with a laundry basket or a bin. She barricaded the door to make herself feel safe.[17]
[17] T39-T40.
MK said that there was a discussion in the household about having their bedroom door removed. The discussion took place when the girls were just beginning high school. The discussion arose because in someone else’s house in the town the parents had discussed removing their son’s bedroom door to dissuade him from sexual behaviour with his girlfriend. In the event the girls’ door was never removed but MK felt that the idea was coming from the accused.
MK said that there was an occasion when the accused was violent towards her. She was at high school, possibly in years nine or 10. The whole family was in the family room. The accused was watching videos on a computer. The volume was very high. MK yelled across the room to get the accused to turn it down. Her mother told her not to do that but to go across to the accused and ask him to turn it down. She did that but the accused ignored her. She turned the volume down herself. The accused grabbed her by the throat and pushed her up against the wall. He held her there for 10-15 seconds. MK said that she does not remember who said what as a result of that but there was a lot of yelling from her mother and sister. MK said that although that was the only occasion the accused was violent to her, he ‘made a lot of threats’.[18]
[18] T40.
MK said that she never saw the accused being violent towards her sister but, more than once, she saw him threaten her. She remembered one particular occasion. Her sister had thrown something such as a fork at the accused while they were at the dinner table. The accused said, ‘you know I will push you through the window’.[19]
[19] T42.
Apart from the poker night conversation with her mother, to which I will return later, MK did not tell anyone about what she says the accused was doing to her until she was an adult. She said the first person she told was her partner. She said she would have been 19 at the time. She turned 19 in 2016. She and her partner were at a local hotel. She had had a lot to drink that night. She saw the accused watching her. She went to the toilet but made her partner go with her. They were house sitting at the time. When they got home, her partner asked her if she was alright. Perceiving that her state of mind might have something to do with the accused, he asked her if the accused had ever hit her. She replied ‘no’. He asked if the accused had ever touched her. She replied ‘yes’. She was crying. She vomited. In the conversation with her partner which followed, she said she gave him a ‘brief overview’ of what the accused had done to her. She thinks she said that the accused used his fingers a lot but there was no penetration.
MK said that a few months after their conversation, she texted her sister on the topic. The text was not tendered, nor were the contents disclosed during the trial, but the text was sent on 18 June 2019.[20] While little may turn on the point, the date of the text is at odds with MK’s recollection, either that a complaint to her partner was made when she was 19 in 2016, or that the text was sent a few months after the complaint.
[20] T44.
MK said that within a week of the text she sent to her sister, they both together told their mother about the abuse. They reported the matter to Bravehearts on 27 January 2021.[21] The content of those disclosures was not led by the prosecution but was the subject of cross-examination.
[21] T89.
In cross-examination, counsel for the accused elicited that, despite having good relations with her sister, her parents, and her grandparents, MK did not complaint to them about her allegations.[22] She had had sex education at primary school and had learnt about ‘stranger danger’.[23] She never liked the accused, but still made no complaint.[24] It was suggested to MK that if she disliked the accused as much as she said she did, she would have done anything she could to get out of that household. MK said that she did not know if she would say that she would do ‘anything’ because she felt scared what would happen to her mother, whom she loved, if they left to go to their father’s.[25]
[22] T61.
[23] T62-T63.
[24] T66.
[25] T91-T92.
Evidence of AK
AK said that her first memory of sexual abuse by the accused occurred in the main bedroom. She was about six at the time. The accused was holding her down on the bed with his forearm and rubbing his penis against her vagina. Neither of them had on underwear at the time. He said, ‘don’t worry, I’m not going to put it in’. He told her that if she was to tell anyone he would be put away and her mother would be left alone. He ejaculated on her below her belly button and rubbed the ejaculate in. He referred to the ejaculate as ‘juices’. She did not understand what had happened. AK said that this happened at least 10 times but went on to say that there was never a time that she could remember it not happening.[26] While the sexual acts were going on, the accused would say she was ‘a good girl’ or she was ‘being a good girl’.
[26] T108.
AK was scared to tell anyone about what was going on, bearing in mind that the accused was a police officer, and it would be her fault if anything happened to him, leaving her mother alone.[27]
[27] T105-T108.
AK said that any sexual activity inside the house occurred in the main bedroom but the accused also touched her in the swimming pool.
While playing the cannonball game with her in the pool, the accused would rub his penis on her vagina. If other people were around, he would leave her bathers on and touch her on the outside. If no one was around he would move her bathers aside or take them off altogether and touch her on the skin. The accused would keep his own bathers on. This happened 30 or 40 times.[28]
[28] T108-T110.
AK said that she saw the accused pick up her sister by the throat. She said he did that when MK turned down the volume on his computer. Their mother was present and crying but she did not intervene.[29]
[29] T111.

AK said that there was an occasion when the accused threatened her with violence. At dinner, she stood up, saying either that she had finished eating, or she did not want to eat the rest of her meal. The accused pushed the table against her and threatened to throw her through the window.[30]
[30] T111-T112.
AK said that she and her sister had the same interactions with the accused. They did not like him. To keep themselves separate from him, they would barricade their bedroom door.[31]
[31] T112.
AK said that there was an argument with the accused when he wanted to remove their bedroom door.[32]
[32] T113.
AK said that the first person she complained to was her then partner. Her doing so was prompted by her sister texting her on that topic. Shortly afterwards, they told their mother. They were together at the time. After that, they reported the matter to Bravehearts.[33]
[33] T113-T114.
AK said that there was an occasion when the accused locked her out of the house. He did so because she had used the wrong bucket to collect kindling. She was about seven at the time. She was locked out at about 4.30 pm before her mother came home from work. It was becoming stormy. She said that when her mother came home, her mother tried unsuccessfully to have her let back inside. She stayed outside until the accused went to bed around 9.00 pm.[34]
[34] T115-T116.
In cross-examination, AK said that although she had never been told by her sister that she too was being sexually abused by the accused, she thought that she was because her sister acted towards him in the same way that she did.[35]
[35] T118.
AK said that although they were together when they told their mother, and together when they made their way to Adelaide to report the matter to the police, they had not discussed together the details of the accused’s behaviour. AK did not want to know the details of her sister’s experiences.[36]
[36] T119-T120.
AK agreed that the first incident of sexual abuse was shocking, frightening and terrifying but, despite having sex education at school, and the good relationships she had with other family members, she did not feel safe telling anyone about it. Notwithstanding that police officers are people you are supposed to trust, the accused was himself a police officer.[37]
[37] T112-T123.
It was put to AK that the accused would play cannonball with lots of children. She agreed, but when it was put to her that she would have friends over she said that they would not have friends over if the accused was around.[38]
[38] T127.
AK agreed that she and her sister would talk about running away to live with their father. When it was put to her that telling the authorities about the abuse would be a good way of getting out the household, she said she did not feel safe in doing so.[39]
[39] T128.
Evidence of the complainant’s mother, DS
DS gave evidence on a number of what I might describe as household matters which were not challenged, and which clarify some uncertainties in the evidence of the complainants.
DS clarified the ages of the three younger children of the accused. The accused’s two sons did not come to live in the household until the complainants had started high school. The elder boy moved in when he was in year 10. At that time, the complainants would have been in year 8. The younger son moved in later still. The accused’s daughter did not move in at all.
There would be times when one or other of the girls might drive to or from the shack with the accused on their own.
DS worked full time from about 12 months after the couple moved in together in 2003. She worked from about 8.30 in the morning to 5.30 or 6.00 pm on weekdays.
The accused would throw children, including the complainants, into the deep end of the pool.
DS gave evidence on discrete topics which bear on the evidence of the complainants.
The first is the poker night incident. DS said that sometimes the accused would drink to excess. Sometimes, if he lost at poker, he would leave the group in the garage and go to bed. She remembered an occasion when the accused had ‘lost poker… had had a few to drink… he cracked the shits and… had gone upstairs to the bedroom.[40] He had clearly had too much to drink’.[41]
[40] T139.
[41] T140.
Later that evening, DS was doing something to a wood fire in the downstairs family room. MK came to her with an awful look on her face. She said the accused had pushed her and held her down on the bed. MK was really distressed. DS thought that MK was saying that the accused had held her down in her own bedroom, not the main bedroom. She sought to calm MK by telling her that the accused had just had a bit too much to drink and had gone into the wrong bedroom. While talking to MK, DS could see AK out of the corner of her eye at the bottom of the stairs watching them. AK appeared uncomfortable.[42] DS said she did not ever discuss the matter with the accused.[43]
[42] T140.
[43] T142.
DS was not cross-examined on that topic. However, when it was put to her that she had never had any concerns about the accused’s behaviour towards her daughters, she volunteered that she reflected on how odd it was that MK had said what she did on the poker night. She questioned herself about whether she should have raised the matter with the accused. She said she pushed the concern to the back of her mind, reasoning why would it be that he would do such a thing with ‘a garage full of coppers downstairs’.[44]
[44] T158.
DS said that it had been the accused’s suggestion that the girls’ bedroom door be removed. He gave the reason that the girls were being loud and obnoxious, slamming doors on his night shift days. DS was not cross‑examined on that topic.
DS said there was an occasion when she came home from work to find AK shut out of the house. She went inside to try to appease the accused. He said that he did not want AK in the house. DS said that after 15 or 20 minutes she went outside and took AK upstairs, telling her not to get in the accused’s way. She said she would bring AK her tea there. AK was aged eight or nine at the time.[45] DS was not cross-examined on this topic.
[45] T147-T148.
DS said that in their sexual relationship, the accused referred to his ejaculate as ‘juice’ or ‘love juice’. DS was not cross-examined on that topic.
In cross-examination, DS agreed that the children did well at school.
In respect of her daughters’ disclosures to her, she said that they blurted everything out in about 15 minutes, following which ‘there was a lot of tears’. DS tended to speak of what she heard in the plural. She tended to say ‘they’ told her something. When she was unsure whether one or other had said something, her attention was drawn to her witness statement in which she had used the plural.[46] DS agreed with what was in her statement. Her evidence then is that ‘they’ told her that the accused had molested them using his fingers and penis. He would molest them after school. He would molest them when they got out of the shower and when they went to their bedroom. They raised with her the removal of the bedroom door and barricading their door.
[46] T150-T152.
Evidence of AK’s former partner, RM
RM said that AK spoke to him about the accused around the end of 2019 or the beginning of 2020. They were staying at DS’s place at the time. AK was doing something at the fireplace when he noticed that she was sobbing. She told him that she had something to tell him about the accused. She told him that the accused had molested her and her sister when they were in primary school. He would undress them and rub his penis on their vaginas. He would tell them that they should not tell their mother because she would be no good if she was single. He would ejaculate on them and rub it in. RM was not cross-examined.
Evidence of MK’s partner, NS
NS said that in roughly 2019 MK spoke to him about the accused. The couple were at a local hotel. There MK spotted the accused. She became anxious and suggested they leave.
When they got home to where they were house sitting, NS tried to find out why MK was upset. In answer to his questions, she said that the accused had ‘touched’ her. She broke down. She did not give him any details that night.
Several months later, into the following year, she made further disclosures to him. She told him about being touched by the accused in the car coming back from the shack. She told him about the poker night. She said the accused had ejaculated onto her but had not penetrated her. NS said that MK told him that the accused had used some ‘immature terminology’ about his ejaculate.
In cross-examination, NS said that in the later disclosures, MK told him the accused had also sexually abused her sister. Presumably relying on NS’s witness statement, NS was asked whether MK had told him that she would try to get the accused to abuse her rather than her sister. This exchange took place:[47]
QDid she say to you in a bid to try to protect her sister that she would try to get Neil to abuse her rather than [AK] when she was present and he would turn his attention to her?
AShe would try to protect her sister, yes.
QAnd as [AK] was present during the alleged abuse?
AI believe so, yes.
[47] T163, line 16-22.
Evidence of the accused
The accused gave brief examination-in-chief. The accused was not obliged to give evidence, but having done so, I treat his evidence in the same way I do that of other witnesses, except that I must bear in mind the evidence of his good character. He is now 64. He gave evidence of his good character.[48] He denied the sexual allegations.[49]
[48] T166-T167, line 10.
[49] T167, lines 11-36.
In cross-examination, the accused said it was obvious to him that the complainants did not like him. They were very aggressive towards him. They were influenced by their father, who wanted to control them in such a way as to disrupt the marriage between him and their mother.
The accused denied AK’s evidence about his locking her out of the house. That was not put to AK or DS.
In respect of the bedroom door discussion, the accused said, first, that the topic was raised by the girls reporting a door removal in the house of one of their friends. That was told to their mother ‘and that was the end of the matter’.[50]
[50] T172.
When it was put to the accused that he had suggested the girls’ door be removed, he denied it.
When it was put to him that the girls were upset about the suggestion, he said that he had no idea what their feelings were.
He said he had no idea what the girls’ feelings were because the topic was only passed on to him by the mother and in the absence of the girls. The mother had suggested to him that it might be helpful because the door was being slammed by the girls.
When asked if it was the mother’s idea to remove the door, his first response was that there was no mention of anyone removing the door. Then he said that the removal was a thought that the mother had had. His response to her was that that would stop them slamming the door.
When reminded of the evidence of the complainants that it was his idea, he agreed that his evidence was that it was the mother’s suggestion to remove the door. That was never put to the complainants or their mother.
The accused was questioned about the poker night. He denied he ever drank to excess on the poker nights. He agreed that he might leave the group and go to bed, but only if he was tired. He denied MK’s allegation about that night.
The accused denied the suggestion that he sexually abused both girls but stopped short of penetration because, as a police officer, he would be aware that that form of sexual abuse was a more serious crime. He said he did not know that that form of abuse was a more serious crime.
The accused denied the allegations of offending in the swimming pool. He said he was unfamiliar with the term ‘cannonball’ for the game. He nevertheless agreed that he played that game with the complainants and other children. He said that the complainants approached him to play it.[51]
[51] T179.
He denied referring to his ejaculate as ‘juices’. He denied saying that to either of the complainants or to his wife, and went on to say that that was an expression his wife used but he did not.[52] That was not put to DS.
[52] T182.
Evidence of character witness, Mr Roberts
Mr Roberts is a retired police officer. He gave evidence of his acquaintance with the accused over 40 years, including many years together in the police force. He said that the accused was a very honest, loyal and hardworking person. He said that the accused was respected in the community. Mr Roberts was not cross‑examined.
Addresses
Ms Boord KC for the prosecution
Ms Boord cited R v M, DV[53] which sets out the elements of the offences of Maintaining an Unlawful Sexual Relationship with a Child.
[53] [2019] SASCFC 59 at [184].
She referred to the evidence of each of the complainants which made out each charge.
In respect of MK, Ms Boord referred to the specific acts MK mentioned and the frequency with which they are said to have occurred. She referred to the abuse and the escalation of the accused’s behaviour over time. She relied on NS’s evidence demonstrating consistency on MK’s part. She submitted that the poker night evidence was a type of complaint evidence.
MK’s complaint to her partner, NS, was followed by the text that she sent to her sister on 18 June 2019. That led to their joint decision to tell their mother on 22 June 2019.
Ms Boord then referred to the evidence of AK and the specific acts and frequency of such acts.
Ms Boord submitted that there was evidence of consistency in the complaint AK made to her then partner, RM.
Ms Boord handed up a schedule which sets out the similarities of account between the two complainants such that their evidence is cross-admissible.
There is no evidence of collusion which would deny cross-admissibility. The differences in their evidence tells against collusion. There is evidence of grooming of MK but none of AK. MK alleges abuse in the main bedroom and her own bedroom. She also alleges an act of abuse in the car. AK speaks of the abuse against her occurring only in the main bedroom.
It is understandable that both complainants would have seen as futile making any complaint to their mother when they were children. In MK’s case, her mother had brushed off her attempted complaint on the poker night and she had not intervened when the accused assaulted her.
In the case of AK, she saw no intervention by her mother when her sister was assaulted and there was no effective intervention when the accused shut her out of the house.
There is an absence of motive for the complainants to lie. They did not report the matter during their school days when they say the abuse was occurring and they agreed they did not like the accused. They did not report the matter to get away from him. They did not complain to anyone until they were adults. By then the accused and their mother had long since separated.
There is corroboration of several aspects of their evidence. In respect of MK, there is the mother’s evidence of the poker night. In respect of AK, there is the mother’s evidence of her being shut out of the house.
In respect of both of them, there is the removal of the door evidence and the evidence about the accused referring to his ejaculate as ‘juices’.
The cross-admissible evidence of the two complainants is evidence of discreditable conduct which demonstrates not only similarity of account or improbability reasoning, but also tendency reasoning, that is, that the accused had a sexual interest in each girl and acted on that interest when the opportunity arose. Ms Boord submitted that even if I were to reject her submission of cross‑admissibility, the two accounts were independently honest, reliable, and compelling. There is no motive for them to have lied and there is no evidence of collusion. When properly scrutinised, the evidence of the complainants demonstrates similar, opportunistic, brazen conduct on the part of the accused.
Mr Kane for the accused
Mr Kane submitted that the prosecution has not disproved that the complainants colluded. There is evidence suggesting that they did. They are twins. They are close. They complained together to their mother. They made their reports to Braveheart while in the same house. They travelled together to Adelaide to make their reports to the police. There is a very real prospect that they have colluded. There is prima facie evidence of what Mr Kane described as ‘cross pollination’.
Mr Kane cited the authority of R v O’B[54] as containing a discussion about what amounts to collusion and contamination. He submitted that collusion or contamination, whether innocent or sinister, deprives evidence of its probative weight so that there cannot be cross-admissibility. He submitted that the requirements of s 34P of the Evidence Act1929 will not have been fulfilled.
[54] [2014] SADC 12.
On the topic of complaint, Mr Kane submitted that the conversation between MK and her mother on the poker night is not admissible as evidence of complaint. To be admissible, the complaint must be referable to a charged act. The mother’s account of MK’s complaint is not referable to a charged count. She said MK told her that the accused pushed her onto the bed. MK said that she had told her mother that the accused told her to take off her clothes and get into bed. That account is referable to particular (e) of count 1, namely a communication on one occasion made with the intention of making MK amenable to sexual activity.
In relation to count 2, the charge of aggravated assault on MK, Mr Kane submitted that while MK’s sister, AK, claimed to have witnessed the incident, her mother, DS, did not, notwithstanding that both complainants said that the mother was present.
Mr Kane submitted that there was a lack of particularity in the sexual allegations made by both complainants. For example, MK’s allegation about being touched by the accused when she got out of the bath after the cross country run lacks evidence of bus timetables and the accused’s work shifts.
That submission illustrates the significant forensic disadvantage suffered by the accused as a result of the age of these allegations. They relate to events said to have occurred 20 years ago. The accused has to meet those allegations with no evidence of when they occurred; when in the day, when in the year. That information might identify people who might be expected to be in the house or in the pool. When, for example, MK says that the accused offended against her in his bed when she went to say good night to him, she could do no more than assume where her mother and sister were at the time.
Mr Kane submitted that there was an inconsistency between MK’s evidence and that of her partner, NS. MK, and her sister, both say that they were never present when the other was being sexually abused, but NS said that his understanding of MK’s complaint to him was that AK was present when MK was being abused. That inconsistency reflects adversely on MK’s credit.
Mr Kane submitted that while it is not contested that the accused had the opportunity to offend as the complainants allege, there are limits to that opportunity. He was working. His children would have been in the house on a regular basis. The complainants themselves were absent from the house on Wednesday nights and alternate weekends.
The complainants did well at school. They seemed happy and contented children.
The complainants never complained to anyone when they were young, despite them disliking the accused. Surely, they would have taken the opportunity to complain to family members they trusted against someone they so clearly disliked if they were being abused in the way that they say they were.
There are gaps in the prosecution case. For example, MK’s mother makes no reference to the groin injury MK said she suffered at netball, and which led to the accused massaging her in a sexual way.

The brazenness of the allegations in the swimming pool tells against them being true. The brazenness of the allegation on the poker night tells against it being true.
Returning to the topic of collusion, Mr Kane submitted that the similarity of AK’s first allegation with MK’s later allegations, suggests collusion. Whereas MK’s allegation is that the offending escalated to penile touching, AK alleges that was the first abuse of her. The lack of grooming in the case of AK is contrary to human experience and should give rise to misgivings.
Turning to the defence case, Mr Kane invited me to direct myself that the accused was not obliged to give evidence. I do so. Given the forensic disadvantage suffered by him, he could do no more than deny the allegations.
The accused gave evidence of his absence of criminal convictions and evidence which should be construed as evidence of good character. Mr Roberts gave unchallenged evidence of the accused’s good character.
Legal principles
Forensic disadvantage
Section 34CB of the Evidence Act requires a Judge to explain the nature of any forensic disadvantage suffered by an accused as a result of there being a delay in the reporting of the matter. The Judge must also direct the jury to take the forensic disadvantage into account when scrutinising the evidence of the prosecution witnesses.
In De Sa v The Queen[55] the court determined that the terms of the section did not require a judge sitting alone to give himself or herself such directions[56] but the case also decided that a judge sitting alone would bear those directions in mind.
[55] [2021] SASCFC 22.
[56] Supra [108]-[112].
In this case I accept that, given the twenty or so years delay in the matters being brought to the attention of the accused, he is at a significant forensic disadvantage. As his counsel points out, the delay, and the generality of some of the evidence of the complainants, causes the disadvantage. The legislation creating the charges in counts 1 and 3 anticipates that some evidence may be somewhat general in its nature but that nevertheless contributes to the disadvantage.
If a prompt complaint had been made, the accused might have been better placed to give evidence of who might or might not have been about the house at the time the offending is alleged to have taken place. He might have been able to call witnesses on those topics. His work records might have assisted him. I bear these matters in mind when scrutinising the evidence of the prosecution witnesses generally.
Complaint
There is no dispute that the evidence of each complainant and their partners is admissible as evidence of complaint. In each case their evidence is sufficiently referable to the offences charged in counts 1 and 3. That is notwithstanding that there are some differences between what each complainant and what each partner says was discussed. The extent to which the complaints demonstrate consistency, both in conduct and account, is a factual question to which I will shortly turn. However, I bear in mind the provisions of s 34M of the Evidence Act 1929 which bear on the permissible and impermissible uses of complaint evidence.
No suggestion is made that the delay in making the complaints is, of itself, probative in relation to the complainants’ credibility or consistency of conduct (ss 2).
Permissible criticisms have been made of the failure of both complainants to complain about the accused to family members whom they trusted. Any fact finder, judge or jury, is entitled to have regard to the circumstances of a complaint.[57] The evidence of complaint is admitted to demonstrate how the allegations first came to light (ss (4)(a)(i)) and it is capable of demonstrating consistency, or inconsistency, of conduct and account (ss (4)(a)(ii)). Complaint evidence is not to be considered as evidence of the truth of the allegations (ss (4)(b)). Consideration may be given to the varied reasons why an alleged victim of an offence may complain at a particular time and to a particular person (ss (4)(c)).
[57] R v Jones [2018] SASCFC 80 at [104]-[120].
With the exception of the poker night incident, to which I will return shortly, the order in which complaints where made is relatively clear. MK said that she became upset when she noticed the accused watching her in a local hotel. Her partner tried to find out why she was upset. I think the differences between the accounts of MK and her partner, NS, about the complaint are immaterial. MK conflates what NS says were two separate conversations. She says that on returning from the hotel she gave NS a ‘brief overview’ of what the accused had done to her including references to fingers being used and there being no penetration. NS says that on the first night MK merely acknowledged that the accused had touched her, by which it is plain she meant sexually. Several months later she told him about the incidents in the car and on the poker night. She mentioned the accused ejaculating and how he described the ejaculate.
So far, I would regard the complaint evidence as demonstrating consistency of conduct and consistency of account. By consistency of conduct I mean that there is a credible explanation for the timing of the complaint and the person to whom the complaint was made. MK had reason to think that her mother might not support her if she complained when she was a child. Her mother was married to the accused, and he was a policeman. Her mother had brushed off her complaint on the poker night and had not intervened when she said the accused assaulted her. She became upset, perhaps unexpectedly, upon seeing the accused at the hotel when she had been drinking. She responded to her partner’s solicitations.
So far, there is consistency between the accounts to NS and to the Court although, as might be expected, the rigor of the Court process sees a more complete account.
The defence points to an inconsistency. NS says that she believed MK was telling him that her sister was present during the abuse, and MK sought to deflect the accused’s sexual attention away from her sister on to her. MK agrees that, perhaps unconsciously, she did try to protect her sister from what she suspected was happening to her. She might try not to leave her alone with the accused.[58] There was about NS’s evidence in the witness box a degree of diffidence and uncertainty at times. I think he has misunderstood what MK was saying to him about her sister. Neither MK nor AK suggest the accused abused them together. It would be a surprising thing to do and something that neither would be likely to forget. If it had happened there would be no reason now not to say so.
[58] T86.
I turn to the poker night conversation. In my view, the evidence of MK and her mother is compelling that MK became upset by something the accused did to her, or in her presence, so that she ran downstairs to her mother. The question is whether she told her mother, as she said she did, that the accused told her to take her clothes off and get into bed. That is the singular allegation in particular (e) of count 1 on the Information. Alternatively, as DS says, did she tell her mother that the accused pushed her and held her on the bed? The former meets the requirement that the complaint be reasonably referable to a charged act. The latter does not.
I think that on both accounts the report to the mother was traumatic. MK was plainly upset and that is likely to have upset her mother. Whatever the disclosure it must have been disturbing to DS. It was never clarified whether there were guests in the house. No one had explored whether DS had been drinking at the poker night. MK might have been scared to disclose the real actions of the accused.
I am left in some uncertainty about MK’s account about what she told her mother. For that reason, I do not treat what she said as complaint evidence within the meaning of s 34M. However, I accept the evidence that she was upset after what the accused did to her upstairs. I will consider separately my finding about what that was.
I rule now, though, that the evidence of that incident may be used to demonstrate that DS took no action to intervene on her daughter’s part. In fact, despite her having no recollection of the matter, I find compelling MK’s account that the next morning her mother made her apologise to the accused.
The complaint evidence of AK is less complicated. Her then partner, RM, was not cross‑examined on his account of what AK told him. In fact, he was a very clear and forthright witness. I find that, despite some small inconsistencies between his account and AK’s in court, his evidence is generally consistent with hers. There is also consistency of conduct. The order of events in this respect is not in dispute, although the timing is a little uncertain. It is really the timing of MK’s complaint to NS that is unclear. What is not unclear is that MK sent her sister a text on 18 June 2019. That text prompted AK to tell her partner. AK and MK then went together to report to their mother on 22 June 2019. The prosecution did not lead the report to the mother as complaint evidence[59] but counsel for the accused elicited the conversation.[60] It is part of the defence case that that conversation demonstrations collusion or contamination. I will not treat the conversation with the mother as complaint evidence because it is not clear that it is an elaboration of what was said to each partner.
[59] T148.
[60] T150-152.
Vulnerable witnesses
MK and AK both gave their evidence with a screen between the dock and the witness box, and each was accompanied by a support person. I bear in mind the warnings set out in s 13(7) of the Evidence Act 1929. I draw no inference adverse to the accused. I do not allow the special arrangements to influence the weight given to the evidence given in those circumstances.
Good character
The accused gave and called evidence as to his good character. That evidence was not challenged. That factor may be used in two ways, first to affect the likelihood of the accused having committed the crimes and second, to assist in assessing his credibility as a witness.[61]
[61] R v Trimboli (1979) 21 SASR 577 at 578; R v Palazoff (1986) 43 SASR 99.
That said, people do commit crimes for the first time and evidence of good character cannot prevail against convincing evidence of guilt.
Separate consideration
Even where, as here, it is submitted that the evidence of the two complainants is cross‑admissible, the charges must be considered separately. The evidence which relates to each is slightly different. Different considerations may apply. A verdict on one count does not affect the verdict on the other.
Cross‑admissibility – s 34P of the Evidence Act 1929
The question of cross‑admissibility arises in respect of the evidence of the two complainants about the sexual abuse of them by the accused. The question arises in respect of counts 1 and 3. I will deal separately with count 2 and the allegations of threats. The evidence of each complainant is evidence of discreditable conduct by the accused towards the other.
To be admissible, the evidence of discreditable conduct must comply with the provisions of s 34P of the Evidence Act 1929. It is impermissible to use the evidence to suggest that the accused is more likely to have committed an offence because he has engaged in discreditable conduct (ss 1(a)). That has been described as ‘bad person reasoning’.[62] The evidence is only admissible if I am satisfied that the probative value of the evidence outweighs any prejudicial effect it may have on the accused (ss 2(a)). Where the evidence is sought to be admitted as circumstantial evidence of the accused having committed an offence suggesting he has a particular propensity or disposition, the evidence may not be admitted unless it has strong probative value in proving that he committed that offence (ss 2(b)).
[62] R v C, CA [2013] SASCFC 137 at [76].
In determining the probative weight of the discreditable conduct evidence, I must have regard to whether any permissible use can be kept separate and distinct from the impermissible use (ss 3).
Collusion
There is some logic in considering the question of whether the prosecution has excluded the possibility of collusion between the two complainants before I make a finding about cross‑admissibility. If the prosecution has failed to exclude collusion, there can be no cross‑admissibility. Collusion explains such similarity of account as there may be.
That really is the heart of the defence in this trial. The defence case is that the twins have colluded. To adopt the words of Kourakis CJ in R v Bonython‑Wright[63] ‘Collusion was the battleground at trial’.
[63] (2013) 117 SASR 410 at [58].
I say something about what may and what may not amount to collusion. I adapt some of my own reasoning on this topic in the case of R v W, RG[64] because Mr Kane referred to it and agreed with it.[65] I explain why that may not appear from the transcript to be so. Mr Kane submitted that he agreed with observations I had made on the topic of collusion in the case of R v O’B.[66] I remembered making observations on the topic but had forgotten the name of the case. After reserving my decision, I checked that authority and found that R v O’B was a decision of his Honour Judge Soulio. I had my associate write to both counsel seeking clarification of that point and, on a separate topic, asking if the prosecution had given notice pursuant to s 34P(5) of its intention to induce propensity evidence. As it was a judge alone trial, I had deliberately not read the papers and had overlooked raising the matter during the trial. On the latter point, it was agreed that such written notice was given.
[64] [2019] SADC 180.
[65] T209.
[66] [2014] SADC 12.
On the former point, Mr Kane clarified that the case he was referring to was R v W, RG,[67]. In that case, as in this, an essential part of the defence case was that such similarity as there may be between the accounts of the complainants, is the result of collusion. It is said in this case that there is evidence of the complainants speaking together, and there are circumstances from which collusion may reasonably be inferred. Collusion must be disproved by the prosecution as a reasonable possibility.[68]
[67] (Supra) at [67]-[71].
[68] R v M, BJ (2011) 110 SASR 1, [2011] SASCFC 50 at [65], R v Bauer [2018] HCA 40 at [70], R v R, PA [2019] SASCFC 19 at [50].
As observed by Vanstone J in R v M, BJ[69] and Kourakis CJ in R v C, CA[70] a fact finder might rationally begin by considering the question of collusion, at least where collusion is taken to mean two or more people colluding to make up a false story. If the prosecution cannot exclude collusion in that sense, then not only is cross‑admissibility irrelevant, the inevitable result would be a finding of not guilty.
[69] (Supra) at [65].
[70] (Supra) at [100].
However, collusion in that sense is not the only circumstance which negates cross‑admissibility. Here I adapt my discussion in R v W, RG.[71]
[71] (Supra).
Witness A might tell witness B a false story, whereupon B unilaterally decides to tell their own false story without discussion with witness A. There is no bi‑lateral agreement to tell a false story, but A’s story has contaminated that of B.
Another possibility is that witness A tells B a true story about being abused by the accused, whereupon B decides to tell a similar, but false, story.
Another is that A tells B a story about the accused, true or false, and B imagines, or comes to believe wrongly, that they have been abused in a similar way.
These scenarios may perhaps be better described as contamination.
Whatever nomenclature is applied, the effect of all these scenarios is that any similarity of account is the product of discussion between the witnesses, not the truth of their content. Whichever scenario not be disproved by the prosecution negates cross‑admissibility. In the case of the first scenario there would inevitably be a finding of not guilty.
In my view, there are scenarios which do not amount to collusion or contamination. It is not collusion or contamination if, as a result of discussions between witnesses, they feel confident enough to report abuse they have genuinely suffered, or where the account of one prompts the second to truthfully report abuse. It is not contamination if the account of one revives a genuine, but forgotten, memory about some aspect of abuse.
I appreciate that there is tension between similarities and dissimilarities of accounts. Unless there is sufficient similarity the criterion for cross‑admissibility or similarity of account is missing. In other words, there comes a point when dissimilarities of account negate cross‑admissibility. On the other hand, near exact similarity of account may suggest collusion or contamination.
Some dissimilarities may point away from collusion. The prosecution bears the burden of proving beyond reasonable doubt that there has not been collusion or contamination. Wherever the prosecution has been unable to disprove collusion, cross‑admissibility is not permissible.
In this case, I am satisfied beyond reasonable doubt that the complainants have not colluded to tell false stories and they have not had what they have heard from the other contaminate their own account. Both similarities and dissimilarities in their accounts tell against collusion or contamination. I explain what I mean.
Both complainants say that the accused began abusing them when they were about six and both say that there was no abuse when they started high school.
There are similarities and dissimilarities about the behaviour alleged. Both say that the accused used his fingers and penis to touch their vaginas. Both say that the touching was short of what they described as penetration, although both spoke of the touching being inside the lips of the vagina, something which would amount to penetration in law. Both say that the abuse occurred upstairs in the house and in the pool.
However, there are differences. MK says that the abuse commenced with digital touching but escalated to touching with the penis. AK says that the abuse began by touching with the penis. MK says that abuse in the house occurred in both her bedroom and the main bedroom. AK says that it happened only in the main bedroom.
Both say that the accused would say comforting or approving things to them when abusing them. The words were not exactly the same, but they were very similar.
Both say that the accused ejaculated on them, and he described his ejaculate as ‘juices’.
While both say that the accused abused them in the swimming pool, only AK said that, when no‑one was around, he would remove her bather bottoms.
Only MK said that the accused was ever aggressive in the course of the sexual abuse. She said that on the poker night, and only on that occasion, the accused was drunk and, having called her into the main bedroom, he stood with his back to the door and told her to take her clothes off and get into the bed. Not only does AK not suggest that the accused was aggressive in the course of the sexual abuse, but she never said that the accused told her to take off her clothes.
In my view, the combination of similarity and dissimilarity in the accounts of the two complainants tells against collusion and contamination. I am satisfied that despite the closeness of the two complainants, and despite their speaking together on the occasions already referred to, they have not put their heads together to tell false stories. If they had done so, there might be expected to be greater similarity and less nuanced dissimilarity.
For the same reasons I am satisfied that neither account has been contaminated by hearing the other, be that consciously or subconsciously.
I find that the evidence of each complainant is cross‑admissible. That leads to the purpose for which the evidence of each may be put.

The prosecution submits that the evidence is cross‑admissible for both propensity and non‑propensity purposes. The evidence indicates a sexual interest in each complainant and a tendency to act upon that tendency.
I hold the evidence is not cross‑admissible for propensity purposes. I so hold because, in my view, the use of propensity evidence in a case where there are only two complainants involves intractable circularity of reasoning.
Kourakis CJ articulated that difficulty in MDM v R.[72] His Honour said:
‘Moreover, the cross‑admissibility of the testimonies of the complainants for propensity purposes only arises if the evidence of each complainant is first accepted as credible and generally reliable. Only then could the testimony of each of them be used circumstantially as propensity evidence in the prosecution of the offending against the other. The allow the use of their evidence in that way, it is sufficient that it be accepted as credible. It is not necessary to go further and to find the offending against one or other of them is proved beyond reasonable doubt, when evidence of a relevant propensity is but one item of a body of circumstantial evidence because, as such, it is not an indispensable step in reaching a guilty verdict. Nonetheless, a two‑staged approach to the assessment of the complainants’ evidence, in which the evidence of one is relied on after an initially favourable, but not conclusive, assessment of her evidence, involves great subtlety of reasoning. It is difficult enough for a judge, to say nothing of the complexity of the direction which will need to be given to a jury. It is an exercise which might have utility when there is independent evidence strongly corroborating the testimony of only one of several complainants.
[72] [2020] SASCFC 80 at [4].
His Honour went on to describe the more appropriate approach in a case where there were only two complainants:[73]
Finally, the more important permissible use of the evidence in a case like this is improbability reasoning, that is to say, the evaluation of the improbability of RAM and KMA independently concocting a story of similar criminal offending by the same man. It is that reasoning, to which I will return below, which both enhances the credibility and reliability of each complainant, and ultimately may support a finding beyond reasonable doubt of the commission of the offences.
[73] [4].
Later in the judgment in MDM v R, Kourakis CJ described how that reasoning might be applied. The circumstances of that case have some similarities to this case. His Honour said:
15The issue on the appellant’s trial was whether the evidence of KMA and RAM was sufficiently reliable to prove the offences. An important aspect of that issue was whether it was a mere coincidence that two young, pre‑teenage girls in his care as a de facto parent at different times should independently concoct or image accounts that:
·   they were sexually abused in broadly similar ways when they were a similar age;
·   the perpetrator was the appellant; and
·   by-and-large the offending occurred during clandestine night-time visits to their beds.
16In the absence of any evidence of another reason for the close similarities in their evidence, it was highly improbable that KMA and RAM would happen independently to imagine or fabricate those accounts about the accused. Moreover, improbability reasoning is so markedly different from any form of bad person reasoning that the consideration mandated by s 34P(3) of the Evidence Act is more easily satisfied. The probative value of the evidence of each of them, in the case against the accused relating to the other, therefore substantially outweighed any prejudicial effect of their evidence.
I find that the evidence of each complainant is cross‑admissible for similarity of account or improbability reasoning.
Discreditable conduct of evidence of violence
Count 2 alleges that the accused assaulted MK. The aggravating factor was that MK was a child who lived with him. MK said that the accused would threaten her and her sister.[74] The evidence of threats generally is discreditable conduct and must comply with the requirements of s34P of the Evidence Act. MK’s evidence of witnessing the uncharged threat to AK is also discreditable conduct.[75]
[74] T40.
[75] T42.
AK was never asked whether the accused made threats generally. She was only asked about the assault on MK,[76] which she said she witnessed, and the singular threat to her.[77] The latter is discreditable conduct which must comply with s34P. Neither counsel addressed this question.
[76] T111.
[77] T112.
In my view, MK’s evidence of the accused making threats generally is admissible for the permissible purposes of rendering less improbable her evidence of the assault on her (count 2) and the accused’s aggressiveness towards her on the poker night (count 1 particular (e)). It also makes less improbable the threat towards AK. Threats generally provide some context for the charged acts and the uncharged threat towards AK.
I do not repeat my discussion of the requirements of s34P but in my view the evidence on these topics meets those requirements.
Motive to lie
While the defence did not suggest that the complainants had a motive to lie about the accused, the absence of a motive does not strengthen the case for the prosecution. It is, of course, not for the defence to demonstrate a motive to lie. There can be many reasons why a witness might lie. The absence of a motive to lie does not strengthen the prosecution case.[78]
[78] R v P, S [2016] SASCFC 97 at [94].
Consideration
I found both the complainants to be impressive witnesses. They both gave their evidence in a straightforward way without any apparent evasiveness or exaggeration. In fact, each gave evidence in moderate terms. For example, each said that the accused was never forceful, with the solitary exception of the poker night episode involving MK. The lack of forcefulness in the sexual context is to be compared with the aggressiveness in the family setting. There is the charged assault on MK and the alleged threat to AK. If the complainants were minded to lie about the sexual offending, it is notable that they did not suggest aggressiveness. On the contrary, each spoke of the accused being approving and, to a degree, comforting. Neither alleged penetration, at least not as they understood the term.
Each was frank about disliking the accused.
I have already canvassed the similarities and dissimilarities in the accounts each gives in relation to the offending itself. I will not repeat those observations but, together, they are cross‑admissible and bolster the credit of each.
I deal with one of the dissimilarities which defence counsel emphasised. Mr Kane submitted that there should be misgivings about the credit of one or both of the complainants in the light of MK’s evidence that the touching with the accused’s penis was an escalation of the offending, whereas AK says it happened on the first occasion. Counsel submitted that that is unlikely to happen as a matter of common sense.
I do not have a misgiving on that account. There may be reasonable explanations why that is so. The offending against MK may have started before that with AK, notwithstanding that both think it started when they were aged about six. AK may have forgotten some sexual behaviour before the touching with the penis. The accused might have simply felt more confident with AK than he did with MK. AK, unlike her sister, says for example that when no one was around, the accused would remove her bather bottoms. That allegation is not made by MK and is certainly brazen and somewhere unusual.
MK’s allegation of the accused touching her while driving from the shack is also brazen and unusual but different from her sister.
MK has the striking recollection of the first time the accused touched her. She was sitting on the side of her bed eating Jatz biscuits.
Each complainant gained some support from the evidence of complaint. I have referred to the more complicated considerations involving MK. Her partner believes MK told him that she tried to protect her sister by deflecting the accused’s attention onto her and the two girls were present at the time. I think that NS was mistaken about what MK told him.
I find that in each case, the evidence of complaint is evidence of consistency of conduct and account. Further, I think that the evidence of distress on the part of each of them at the time of complaint offers some further support. Each of the partners spoke in compelling terms on that topic. Quite separately, in different circumstances and in different places, each complainant was distressed when speaking to her partner.
In the case of R v Schlaefer[79] King CJ, with whom Mohr J agreed, said that in that case the complainant’s distress should not have been regarded as corroborative evidence. At that time, corroboration of a child’s evidence was generally required. However, his Honour did not rule that distress which is observed by another witness cannot amount to corroboration. The judge in each case must rule whether, in the circumstances, distress can amount to corroboration, and if it can, it should be left to the jury to determine, with an appropriate warning.[80]
[79] (1984) 37 SASR 207 at 215 to 218.
[80] Page 217.
I think it unlikely on the facts of this case, that each complainant would exhibit the distress she did to her partner if she were making up a false story or imagining something that did not happen or, in the case of AK, adopting what her sister told her. I regard the evidence of the complainants’ distress as a piece of circumstantial evidence supporting the prosecution case.
There is another piece of evidence where distress is spoken of. MK was plainly distressed when she went to her mother on the poker night. I have not treated the evidence of the conversation with the mother as complaint evidence because of the uncertainty of exactly what MK told her mother. Complaint has to be referable to a charged act.[81] I am, however, not uncertain about it being the accused’s behaviour in the bedroom which distressed MK and caused her to run to her mother. I find compelling her evidence that the accused told her to take her clothes off and get into the bed, something that he had not ever done before. I find he was intoxicated at the time and, ignoring the risks he ran, he behaved aggressively in a context he had formerly not done. However aggressive he might be towards the complainants in the house generally, he had not been aggressive in the sexual context. DS might have been mistaken about what MK told her, or it may be that MK wanted protection from her mother at that moment rather than wanting to disclose the accused’s sexual behaviour. I also found compelling MK’s account of being made by her mother to apologise to the accused the next morning. That is despite DS having no recollection of speaking to the accused about the matter. The accused was not asked by anyone whether MK apologised. DS herself was not asked directly whether MK apologised.
[81] R v S, DD (2010) 109 SASR 46 at [4], approved by Peek J in R v Maiolo (No 2) [2013] SASCFC 36 at [23]-[25].
Both the complainants were frank about misbehaving on the occasions when they say they were either assaulted or threatened by the accused. MK had yelled at the accused to turn down the volume on the computer before being reproved by her mother. When the accused did not turn the volume down, MK did it herself.
AK said that she stood up at the table and threw a fork at the accused.
Both accounts seem credible, notwithstanding that DS has no memory of them.
AK gets some support from her mother when she says that the accused locked her out of the house. That is despite their giving slightly different accounts.
Both complainants get support from their mother when they say that the accused floated the idea of taking off the door of their bedroom. DS said that it was the accused’s idea and she opposed it. It is credible that she would oppose it.
I think there is force in defence counsel’s submission that removing the door would be inconsistent with the accused wanting to surreptitiously molest either of the complainants. In any event, the complainants say that the bedroom door incident occurred when they were at high school and they both say that the offending had stopped by then. In the circumstances, the idea of removing the door is more consistent with controlling behaviour on the part of the accused rather than sexual behaviour. The accused’s ultimate contention that it was DS’s idea is not credible. That was never put to DS.
Several topics upon which the accused gave evidence were not put to the relevant prosecution witnesses. I do not conclude that those failures are evidence of recent invention on the accused’s part. That conclusion should be drawn only sparingly. In R v Manunta[82] King CJ referred to that process of reasoning as ‘fraught with peril and should therefore be used only with much caution and circumspection’.[83] In each instance I simply have no evidence on the point from the relevant witness.
[82] (1989) 54 SASR 17.
[83] At page 23.
There was evidence from both complainants on a topic which potentially discloses esoteric knowledge. Both complainants say that at times when the accused ejaculated on them, he would describe his ejaculate as ‘juices’. MK’s partner, NS, said that MK told him that the accused had used some ‘immature’ or ‘childish’ terminology to her when referring to his ejaculate. AK’s partner, RM, was not asked any questions on that topic.
DS said that in their marriage the accused would use that expression. The accused was not asked about that topic in examination‑in‑chief, but in cross‑examination, he denied ever using the expression.[84] He postulated that the complainants might have heard the expression around the school. When asked how that might explain DS’s evidence, he said that the expression was one she used but he did not.[85] That was not put to DS.
[84] T181.
[85] T182.
In my view, the accused was not an impressive witness. Although his examination-in-chief on the substance of the allegations was extremely brief[86] there were unsatisfactory aspects to his answers in cross‑examination. I will return to those matters in a moment.
[86] T168, lines 11-36.
In this regard, I bear in mind the forensic disadvantage suffered by the accused by reason of the late report of these allegations. The delay is of the order of 20 years. That does make it more difficult for an accused to constructively respond to allegations.
I turn to the cross‑examination of the accused.
In respect of the bedroom door discussion, he was evasive. His first answer on that topic was that the suggestion of the door being removed was never conveyed to him. When pressed, he said that he remembered a conversation which was started by the complainants and which was then conveyed to their mother. He said ‘that was the end of it’. He denied that it was his idea when it was put to him that it was. He said that he had no idea what the complainants’ feelings were about the suggestion. He said that he had a discussion about it with DS who told him what had been done in someone else’s house. He then said that DS thought it might be a helpful idea to stop the girls shutting the door. When asked if it was DS’s idea to remove the door, he first said that there was no mention of removing the door. Finally, when pressed about whether he was saying it was DS’s idea, he agreed it was.[87]
[87] T171-173.
The accused was overly defensive when questioned about the poker night. He denied ever drinking to excess on poker nights. He and his wife had been hosting those events for 10-13 years. He claimed that poker was a game that you cannot play if you were over intoxicated.
In relation to the game that the accused played with the children in the pool, he said that the description ‘cannonball’ was unfamiliar to him and it was the children who approached him to play.
I have already referred to the accused’s evidence on his alleged reference to his ejaculate as ‘juices’. In my view, his evidence on that topic was not credible. It is, of course, not incumbent upon the accused to explain how the complainants might have heard of that expression but their evidence gained support from their mother.
I make these observations about the accused’s evidence notwithstanding the regard I have to his evidence of good character. Mr Roberts’s evidence is to the same effect, and it was not challenged. I bear in mind that evidence of good character may make it less likely that an accused has committed the alleged crimes and it may enhance his credit. Nevertheless, evidence of good character cannot prevail over convincing evidence of guilt.
I find that there is convincing evidence of the accused’s guilt in respect to each charge. MK’s evidence was compelling, nuanced and moderate, both as to the sexual offending in count 1 and the assault in count 2. Her evidence gains support from her sister’s similar evidence about the sexual offending. Her evidence of count 1 is bolstered by the consistency of her complaint to her partner. In the respects I have mentioned there is some support from her mother.
In respect of count 2 her evidence gains support from her sister who said she saw it, although their mother has no recollection of it. Her account is credible. She is frank about misbehaving before the accused held her up against the wall.
AK’s evidence was also compelling, nuanced and moderate. She has support from the same quarters as does her sister. There is MK’s similar evidence, there is the complaint evidence and there is some support from her mother.
To find the accused guilty of any charge, it would not be sufficient to simply say that there is convincing evidence from the prosecution witnesses. If the accused’s evidence, including the good character evidence, is reasonably possible, then there must be acquittals.[88] If, in the face of two competing bodies of opposing evidence I am unable to determine where the truth lies, I will not be satisfied beyond reasonable doubt of the prosecution case.[89]
[88] Douglass v R [2012] HCA 15.
[89] R v Calides (1983) 34 SASR 355, R v Lavery (2013) 116 SASR 242, [2013] SASCFC 46.
The rejection of the defence evidence as reasonably possible does not assist the prosecution case. The accused is to be acquitted unless the prosecution proves its case beyond reasonable doubt.[90]
[90] Liberato v R (1985) 159 CLR 507, [1985] HCA 66.
For the reasons I have given, I reject the accused’s evidence. I am satisfied beyond reasonable doubt of the evidence of each of the complainants in material respects.
Elements of charges
In respect of counts 1 and 3, I find that, while the accused was an adult and each of MK and AK was a child, the accused committed each of the particularised sexual acts with the frequency that is alleged. In respect of MK particulars (a) and (c) allege indecent assault, particular (b) alleges unlawful sexual intercourse, particular (d) alleges gross indecency and particular (e) alleges the offence of communicating with a child with the intention of making her amenable to sexual activity. In respect of AK particulars (a) and (c) allege indecent assault and particular (b) alleges unlawful sexual intercourse.
There is no dispute in this trial that if the evidence of MK and AK is proved beyond reasonable doubt, counts 1 and 3 are proved beyond reasonable doubt.
I find in respect of count 2 that the accused assaulted MK by grabbing her by the throat and holding her up against the wall. She was a child who normally resided with him. There is no dispute that if the evidence of MK and AK is proved reasonable doubt then count 2 is proved beyond reasonable doubt.
Verdicts
Count 1 – Maintaining an Unlawful Sexual Relationship with a Child (MK) – Guilty.
Count 2 – Aggravated Assault (MK) – Guilty.
Count 3 - Maintaining an Unlawful Sexual Relationship with a Child (AK) – Guilty.