R v O'NEIL

[2022] SADC 29

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v O'NEIL

Criminal Trial by Judge Alone

[2022] SADC 29

Reasons for the Verdict of his Honour Judge Heffernan 

11 March 2022

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES

The accused is charged with one count of maintaining an unlawful sexual relationship with a child. The complainant, C, alleged that the accused, her uncle by marriage, had touched her on the vagina, touched her on the stomach and kissed her on the lips on numerous occasions. The accused lived with the complainant's aunty in a house located just behind where C lived with her mother and siblings. C was accustomed to frequently visiting the accused's house with her siblings and sometimes alone. The visits included sleepovers. The accused denied that he had ever touched C inappropriately, but admitted giving her goodnight hugs and occasionally kissing her goodbye.

Verdict: Guilty.

Criminal Law Consolidation Act 1935 (SA) ss 49, 50(1), 50(12) and 56; Evidence Act 1929 (SA) ss 13BA(3)(b), 13BA(3)(c), 13BA(5)(b), 13BA(6)(b), 34M, 34P(1) and 34P(2)(b), referred to.
R v C, M [2014] SASCFC 116; Palmer v The Queen (1998) 193 CLR 1, considered.

R v O'NEIL
[2022] SADC 29

1. The accused is charged on Information dated 10 November 2020 with one count of maintaining an unlawful sexual relationship with a child between 1 January 2018 and 30 September 2019 at Port Lincoln, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (CLCA).

   Overview

2. The complainant in this matter is C, who was born on 23 December 2008. Her father, TJB and her mother MJW separated several years ago. At the time of the alleged offending, C lived with her mother in Port Lincoln and spent school holidays with her father who lives in Quorn. The house at which C, her siblings and her mother lived at the relevant time was situated immediately next door to the house occupied by the sister of MJW, AO, and her husband, the accused Richard O’Neil.

3. C and her siblings were in the habit of spending time at the O’Neil residence, sometimes sleeping over. The prosecution has alleged that on a number of occasions during 2018 and 2019 the accused performed a number of sexual acts on C. These acts are said to have included penetrating her labia majora with his fingers on more than one occasion, touching her on the stomach on more than one occasion and kissing her on the lips on more than one occasion. The allegations came to light in October 2019 when C made a complaint to her parents. The initial complaint, made to her father, occurred when she was staying with him in Quorn for the school holidays. The family went on a hike to Devil’s Peak just outside of Quorn (‘the walk’) and the disclosure was made as they were coming down from the Peak.

   Elements of the offence and directions

4. The elements of the offence of maintaining an unlawful sexual relationship with a child are as follows:

   1.That the accused knowingly maintained a relationship with the child, C. This element requires more to the relationship than the sexual acts alleged. The sexual acts can nonetheless be considered when determining whether the prosecution has proved this element.

   2.In the course of the relationship, the accused engaged in two or more sexual acts with C. An unlawful sexual act is a sexual offence, defined by s 50(12) of the CLCA as:

   "sexual offence" means—

   (a) an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or

   (b)     an attempt to commit, or assault with intent to commit, any of those offences; or

   (c)      a substantially similar offence against a previous enactment.

   3.That C was a child during the period of the relationship. There is no dispute that C was born on 23 December 2008. This element is established beyond reasonable doubt.

   4.That the accused was an adult during the period of the relationship. This element is established beyond reasonable doubt.

5. The primary issue at trial was whether the accused had ever touched C on her vagina or on her stomach under her top. Further, whether the accused had kissed C on the lips in a manner which could be regarded as a sexual offence in all the circumstances.  It was not disputed, and was abundantly clear on the evidence, that the accused had maintained a relationship with C during the relevant period.  The accused regarded her as his niece and felt close to her.

6. As this is a trial by judge alone, I am not required to give written directions to myself on the law which are as detailed as would be required for a jury. I have nonetheless applied the relevant directions in my consideration of this matter in the same way I would have directed a jury to apply them.

7. I have applied the following principles in reaching my verdict.

8. The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The burden of proving the charge lies wholly upon the prosecution. Before the accused is convicted of the offence, the prosecution is required to prove beyond reasonable doubt each element of the charge. In these reasons, if the words ‘proved’ or ‘established’ or ‘satisfied’ are used, this means to a standard of proof beyond reasonable doubt. If there is any explanation consistent with the innocence of the accused, or there is uncertainty as to where the truth lies, then the accused must not be found guilty.

9. The accused elected to give evidence. He was not obliged to do so. As the accused has given evidence in his defence, that does not relieve the prosecution of the burden of proving the case beyond reasonable doubt. It is for the prosecution to prove the accused’s guilt. He does not have to prove his innocence. Subject to that, I have assessed his evidence like the evidence of any other witness in this trial. I note that I am entitled to give him such credit as I think appropriate for adopting a course he was not obliged to take.

10. Without objection, special arrangements were put in place for C to give her evidence. She gave evidence by CCTV from a remote location within the court building. She also had a court companion. I have not drawn any adverse inference against the accused because of those arrangements and nor have they caused me to place any extra or undue weight on C’s evidence.

11. It became apparent during the course of the trial that the accused has in the past had a serious alcohol problem. I have not used that fact in any manner prejudicial to the accused.

12. I have reminded myself that in the assessment of the evidence, it is not a question of whether I prefer the evidence of one witness over that of another but rather, whether I find that evidence to be honest and reliable and whether the prosecution has proved each element of the offence beyond reasonable doubt.

13. C’s evidence in chief was in the form of an audio-visual record admitted pursuant to s 13BA of the Evidence Act. On the voir dire, I viewed part of one of the interviews conducted with the complainant by police. I was satisfied of C’s capacity to give sworn or unsworn evidence at the time the recording was made.[1] There was no doubt that the accused had been given a reasonable opportunity to view the recording and C was available for the purpose of giving evidence during the trial if required.[2] C gave brief oral evidence in chief at the trial and was cross examined. I was satisfied that it was in the interests of justice to permit this.[3] I have reminded myself that I am not to draw any inference adverse to the accused because her evidence was introduced in that form and not to allow the admission of evidence in that form to influence the weight I have given to it.[4] Prior to the complainant giving evidence in chief I satisfied myself that she was capable of giving sworn evidence and she did so.

    [1]     Evidence Act 1929 (SA) s 13BA (3)(b).

    [2]     Evidence Act1929 (SA) s 13BA (3)(c).

    [3]     Evidence Act1929 (SA) s 13BA (5)(b).

    [4]     Evidence Act1929 (SA) s 13BA (6)(b).

14. Evidence of initial complaint was given in this matter. That evidence included an elaboration which C made to her mother of the initial complaint which was made to her father. That evidence was admitted to inform me as to how the allegation first came to light and if I accepted it, as evidence of the degree of consistency of C’s conduct. I have not used that evidence as evidence of the truth of the allegations and I have reminded myself that there may be varied reasons why the alleged victim of a sexual offence has made a complaint at a particular time and to a particular person.[5] The initial complaint was made by C to her father whilst on the walk. AJC, her father’s partner, was also present and gave evidence of what she observed and what was said. The elaboration was made to her mother sometime after the initial complaint. Having said that, other witnesses gave evidence as to things they heard and saw on the day of C’s disclosure to her father.

    [5]     Evidence Act1929 (SA) s 34M.

15. There was evidence that C was distressed at the time of making the disclosure to her father. C’s distress was part of the disclosure and I have used that evidence only for the purpose of considering C’s consistency of conduct.

16. I have scrutinised the evidence of C and indeed, all of the witnesses carefully. I have re-read all of the evidence and given close consideration to it and all of the tendered materials.

17. Evidence was admitted of the fact that the accused was in the habit of lying down on the bed with C in the spare bedroom when he was saying goodnight to her and of him hugging her whilst lying alongside and to the rear of her. The witness Darren also gave evidence that he saw the accused lying in a similar position on a mattress one night in the lounge room. The prosecution indicated that the evidence was not led for a propensity purpose.[6] The evidence was relied on by the prosecution to demonstrate that the nature of the relationship between the accused and C involved physical contact. It was also led to demonstrate how the normalisation of physical contact might explain how it was that the accused was readily able to commit the charged acts. It also might tend to explain why C did not complain about the charged acts as and when they occurred. I was satisfied that the probative value of the evidence outweighed its prejudicial effect and I note also that defence counsel conceded that the evidence could be led for those purposes.  I have not used that evidence for impermissible purposes.[7] 

    [6]     Evidence Act1929 (SA) s 34P (2)(b).

    [7]     Evidence Act1929 (SA) s 34P (1).

18. I have not used the evidence that the accused was accustomed to smoking cannabis to draw any inference unfavourable to him.

19. Counsel for the accused asked that I give myself a forensic disadvantage warning. I acknowledge that delay can be a relative concept. However, in this matter the allegations came to light in 2019. The allegations cover the period of 2018 and 2019. The trial was held in 2021. That chronology does not demonstrate much, if any, delay in the progress of this matter and does not cause me to be of the opinion that the period of time which has elapsed between the alleged offending and the trial has, of itself, caused a significant forensic disadvantage to the accused. The request for the direction was made on the basis that when the allegations came to light, the accused was requested to leave his matrimonial home and had not returned. As a result he did not have access to his papers and was for that reason not able to give evidence with specificity as to the periods when he had worked, the hours he had worked and the particular days on which he had done so. To the extent that he was disadvantaged by that state of affairs, it was as a result of the breakdown of his marriage and the resulting inability he had to return to the property. It was not as a result of the delay between the conduct alleged and the trial. I have nonetheless taken that matter into account when scrutinising the evidence. As the evidence unfolded it was, to my mind, a matter of limited relevance because C did not allege that any particular conduct occurred on a particular day or at a particular time. The accused himself acknowledged that C was frequently present at the house and that there were occasions on which he was alone with her.

    Prosecution evidence

    Evidence of complainant

20. C took part in two recorded interviews with police. The first of these occurred at Port Lincoln Police Station on 12 October 2019 in the presence of C’s mother. The second was at Port Lincoln Police Station on 22 March 2020 in the presence of one of her aunties.

21. It was apparent from her evidence that C had difficulty in recalling distinct incidents of touching by the accused, but that he had touched her on several occasions over more than one day and that the touching had finally stopped after she told him not to do it. There were occasions when she was alone at her aunty’s house with the accused.[8]

    Touching in the lounge room

    [8]     MFI P3A p 15.

22. C’s evidence was that her Uncle Richard O’Neil had put his hand in her pants and touched her ‘parts’. She had been sitting in a beanbag playing a game when he asked her to come and sit on his lap. She did so and he put his hand in her pants.[9] She said she made excuses, like needing to go to the toilet or getting something to eat in order to get away from him. The incident of touching her under her pants had happened on the couch.[10] In describing what the accused had done C said:

    He might have, um, put his hand, like, down, in my bit but not in, not inside me, just in my bit… He didn’t make me touch him or anything I don’t think. And that is what happened.[11]

    [9]     Exhibit P1, interview with police 12/10/19 p 3.

    [10]   Op cit p 4.

    [11]   Ibid.

23. She said that this had happened at her aunty’s house next door to where she lived, and she thought that her aunty might have been asleep in her room at the time or at work.[12] She said that this had happened to her about five times or maybe more than five times, on different days.[13] She was not able to recall the first time it happened because it was a long time ago.[14] She did not know if it had started when she was at kindergarten or at school.[15] It was difficult to get a sense from this part of her evidence as to how many occasions on which the accused had placed his hand inside her pants. In that regard, C said it had happened:

    Maybe once a day, leave his hand in my knickers, for like a couple of minutes I think…for a couple of minutes he would leave his hand in my pants.[16]

    [12]   Ibid.

    [13]   Ibid; MFI P3A p 5.

    [14]   MFI P3A p 5.

    [15]   MFI P3A p 15.

    [16]   Ibid.

24. C was not certain of when the last occasion had occurred, saying that it might have been in 2019 ‘before they got the sheep’,[17] which was either in May or February but she could not be sure about that.[18] On the final occasion on which he had put his hand in her pants, she thought that she had told him to stop but on the other occasions she did not say anything because she was too scared and thought that he might hurt her. She thought that since having told the accused to stop he had not done it again.[19]

    [17]   MFI P1, p 5.

    [18]   Op cit p 5.

    [19]   Ibid.

25. When describing the last occasion, C spoke in general terms, firstly saying that she would be playing a game and he would tell her to come up and sit on his lap and then saying alternatively that he would come down to the beanbag:

    … or yeah I think he was in the beanbag as well and make me sit on his lap, and yeah I, and then he put his hand in my pants and my top.[20]

    [20]   MFI P3A, p5.

26. The beanbag referred to was located in the lounge room and was where C customarily sat when playing video games. The touching inside her pants was always when she was on the beanbag playing the game and her Uncle would ask her to come and sit on his lap. This was in the lounge room of her aunty’s house.[21]

    [21]   MFI P1A p 7.

27. C referred to her vagina as her ‘parts’ and her ‘bits’.[22] When asked what the accused was doing when he put his hand inside her pants on that last occasion, C said:

    Um, he just left it there and yeah. He might have opened and yeah, and he just left his hand there. ... He might have like, um, I don’t know. I don’t know how to explain it…. He might have opened my bits and put his hand, like in my bit, but not in, not inside me, like not where you, not the hole.[23]

    [22]   Ibid; MFI P3A, pp 4-5.

    [23]   MFI P1A p 5; described in almost identical terms at MFI P3A p 6, T132-136.

28. C said that after he took his hand out of her pants she remained sitting on his lap and then she thinks she might have gone home.[24] C said that on occasions, she would stand up from the beanbag when she had finished playing her game so that the accused could not have his hand in her pants anymore.[25] On one occasion she thought that she might have grabbed the accused’s hand and moved it away, but that later he put it back in her pants.[26]

    [24]   MFI P1A, p 6.

    [25]   MFI P3A p 7.

    [26]   MFI P3A p 7.

29. In cross examination, C denied that she could have been mistaken when she said that it was the accused who was the person who touched her and that it could have been someone else.[27] No other person ever touched her on the skin underneath her underpants in either Port Augusta or Quorn and she was never worried about going to stay with her father.[28]

    [27]   T129.l-7.

    [28]   T129.8-16.

30. C was also challenged in cross examination about passages in her first interview with police when she said, perhaps equivocally, ‘he might have, um, like put his hand like down in my bit but not in, not inside me just in my bit’ and later, ‘he might have opened my bits and put his hand like in my bit but not inside me ...’. She was asked whether she was unsure at the time she made those statements if the accused had put his hand in her ‘bits’ or not. Her answer was clear; ‘No. I was sure that he did, yep.’[29]

    Touching in the laundry

    [29]   T143.22-37.

31. It became apparent from the evidence that there was a laundry area in the accused’s house where he would sit smoking and watching videos on the computer. When asked about the accused putting his hand inside her top, C said with respect to the laundry:

    … like cause he had his own laundry bit, … Like, he would make me sit on his lap again and put his hand in my top….. He would like um, tell me to come there and sit on his lap. Um, lift me up onto his lap.[30]

    [30]   MFI P1A pp 6-7.

32. C was unable to remember the first time it happened in the laundry because it happened lots of times and it was a long time ago.[31]

    [31]   MFI P3A p 8.

33. C did not know when the last occasion was that the accused had placed his hand under her top, but it was at about the same time as when he had put his hand inside her underwear.[32]  The touching under her top in the laundry happened more than once.[33] C said that in the laundry when the accused lifted her onto his lap, he would touch her in her pants or her top.[34] She said that whilst in the laundry the accused would lift her up onto his lap whilst he was watching YouTube and slide his hand into her pants and just leave it there. On the last occasion in the laundry ‘he might have opened my vagina’.[35] When asked to clarify her use of the word ‘might’, C responded, with respect to the last occasion in the laundry:

    Ah, he did have his hand in my pants and he has put his finger, like he has opened my vagina and put his finger there…and yeah, but on the last occasion he might have, so I am not sure if he did do that …or if he just left his hand there.[36]

    [32]   MFI P1A pp 6-7.

    [33]   MFI P3A p 7.

    [34]   MFI P3A p 7.

    [35]   MFI P3 p 8.

    [36]   MFI P3A p 8, T194-198.

1. From that answer I have inferred that C meant that the accused did put his hand in her pants in the laundry on the last occasion but that she was not certain if he had opened her vagina. Further, that she was reaffirming that there were occasions that the accused had opened her vagina when he put his hand down her pants.

2. C said that when the accused put his hand under her top he would sneakily and slowly slide his hand under her top and either just leave it there or touch her belly button and move his finger on her belly button.[37] When the accused put his hand inside her top, he would just slide it under her top and touch her on the belly. He did not put his hand under her top on the same occasions that he put his hand inside her pants. When the touching occurred in the lounge it would usually be in her pants but in the laundry, it would usually be in her top.[38] The accused did not put his hand in her pants and into her top on the same day.[39]

   [37]   MFI P3 p 14.

   [38]   Ibid p 9.

   [39]   MFI P1A p 9.

3. C denied when it was put to her in cross examination that the accused had touched her belly button on one occasion where there was discussion between them about the fact that he did not have a belly button.[40] She could not recall if he had a scar on his stomach or whether he had ever told her that he did not have a belly button. She could not recall if he had ever shown her the scar on his stomach.[41]

   [40]   T109.29-35.

   [41]   T108-109. It became apparent on the evidence that the accused had previously had surgery to his stomach which had left him with a scar and without a navel.

4. C agreed that the accused spent a lot of time in the laundry but denied that she would choose to go in there to speak with him rather, she would go to the laundry when he told her to go in there. She did not visit the laundry so that she could play with the dog because it was a big dog and she found it scary.[42] She said that she did not ever voluntarily climb onto her Uncle’s lap in the laundry in order to watch YouTube. There was no occasion when she chose to climb onto the accused’s lap.[43]

   [42]   T125.7-16.

   [43]   T126.l-4.

5. It was put to C that the accused had never touched her under her underwear in the laundry. Her answer was ‘I’m pretty sure he did in the laundry, but he definitely put his hand in my top in the laundry’.[44]

   Kissing on the lips

   [44]   T125.33-34. See also T128.1-2.

6. C also said that on occasions when she was leaving her aunty’s house the accused would kiss her on the lips:

   …and like when I would say goodbye to [AO] (C’s aunty) and like when I was going home I would say goodbye to [AO] and give her a kiss and then he would want me to give him a kiss…  a kiss on the lips.[45]

   [45]   MFI P1A pp 6-7.

7. C said that she would try to give the accused a hug when saying goodbye but he would want a kiss on the lips:

   … I would say goodbye, give him a hug and he would want to kiss also. So I gave him a kiss and but I tried to give him a kiss on the cheek and then he would like move, head, like he, like he would want one on the lips…… He would like to try and kiss me and yeah so I gave him a kiss and he’d like um, he would like try and kiss me on the lips…[46]

   [46]   MFI P3A p 16 404-412.

8. Her evidence was that she would relent and kiss him on the lips.[47] The kissing on the lips happened on more than one occasion. The accused had not kissed her on any other part of her body. C did not want the accused to kiss her on the lips.[48]

   [47]   MFI P3 p 16.

   [48]   MFI P3A p 16.

9. C acknowledged in cross examination that kisses did not occur with Uncle Richard every time she said goodbye to him[49] and denied that she would kiss Uncle Richard when she was arriving at his house if she had not seen him for a couple of days.[50] She said that most of the time she would choose to give her aunty a kiss on the cheek. When it was put to her that the kissing between her and Uncle Richard would usually be on the cheek she said ‘Well, it only happened a couple of times I’m pretty sure’.[51] In clarifying that answer, C repeated that it only happened a couple of times between her and her Uncle but that when she kissed her aunty he would want her to kiss him on the lips if she was leaving.[52] She denied that most times when she was leaving she would go up to the accused and give him a kiss on the cheek.[53] She said that she could not really remember that, she only recalled him giving her a kiss on the cheek a couple of times.[54] She was clear that she did not on any occasion go up to the accused and choose to give him a kiss on the lips.[55] C agreed that sometimes when the accused kissed her it seemed like she was going to get a kiss on the cheek but it turned out to be on the lips. She would try to move her head so that it would be on her cheek.[56] C denied that there was any occasion that she would go up to the accused and kiss him before giving a kiss to her aunty.[57] Her recollection was that when she kissed her aunty the accused would say ‘Where’s my kiss?’.[58] She agreed that the reason she thought Uncle Richard trying to kiss her on the lips was bad was because he was not her blood family.[59] She agreed that the only time the accused tried to kiss her was when she was leaving.

   Hugging in bed

   [49]   T111.1-26.

   [50]   T112.1-7.

   [51]   T112.13-16.

   [52]   T112.19-22.

   [53]   T112.32-34.

   [54]   T113.l-5.

   [55]   T113.19-21.

   [56]   T114.6-11.

   [57]   T119.1-4.

   [58]   T119.9-10.

   [59]   T119.15-28.

10. C gave evidence that when she slept over at the accused’s house he would hug her when she was in bed.[60] This conduct was not particularised as part of the maintaining a sexual relationship with C. The evidence was not objected to and was relevant to demonstrating the nature of the relationship between the parties.

    [60]   MFI P1A p 3.

11. C’s evidence was that she would stay in the spare room of her aunty’s house and that the accused would just come in and lie down and give her a hug by wrapping his arm around her. Sometimes this happened when she was watching TV or playing a game. She would tell him that she wanted to go to sleep and then he would leave.[61] This happened on more than one occasion. He would not say or do anything when he was hugging her. She was not facing him when he did so.  He would hug her for a pretty long time and sometimes she would pretend to be asleep.[62]

    Requests to stop touching

    [61]   MFI P3A p 12.

    [62]   MFI p3A p 13.

12. C said she had only told the accused on one occasion to stop touching her.[63]

    [63]   MFI P1A p 7.

13. She also said that she had told the accused to stop touching her on one or two occasions and she thought the first time she had told him to stop was when they were on the lounge.[64] C said that if she told him to stop or grabbed his hand and moved it away, he would, a couple of minutes later, just put his hand back where it was.[65]

    [64]   MFI P3 p 9.

    [65]   MFI P3A p 9.

14. With respect to the touching in the laundry C said there was one occasion when she pulled his hand out of her top and he just went back to watching YouTube.[66]

    [66]   MFI P3 p 15.

15. In addition, C said that there were occasions when the accused was touching her where she would make an excuse to go and get a drink or that she was hungry or that she wanted to go home, and he would let her do so.[67]

    [67]   MFI P3A p 9.

16. On C’s account, the accused would typically be passive if she asked him to stop or moved his hand away. With respect to the occasion on which she removed his hand from her top she had this to say:

    I don’t know, just pulled his hand out of my top and moved it away from me. Then he just watched YouTube. And I might have asked him questions about the video, so he would take, so like change the subject. Kind of…Yeah he just answered the questions.[68]

    [68]   MFI P3A p 15.

17. C said that she had not told anyone about what the accused had done to her until she told her father recently. She could not remember when the touching had first happened or how long ago the first time was.[69] When he touched her, he looked emotionless, he did not say anything and did not look angry.[70] The experience made her feel scared, weird and nervous. She was scared that the accused would hurt her if she told him to stop or if she told anyone. She was scared of him because he was strong and tall and drank a lot of alcohol.[71] She was scared that she might be ‘told off’ if she told anyone about it.[72] C could not remember what her relationship with the accused was like before he started touching her.[73]

    [69]   MFI P1A pp 7-8.

    [70]   MFI P1A p 8.

    [71]   MFI P3A p 10.

    [72]   Ibid.

    [73]   MFI P3A p 15.

18. In cross examination, counsel for the accused explored the nature of C’s relationship with the accused. C agreed that until she made her disclosures to her father, she was still attending at the accused’s house to play games, and that he would still give food and lollies and watch television with her and her brothers.[74] She told the court that she was trying to avoid going up to the accused’s house[75] but agreed that there were more things to do there, and it was fun to go there.[76] She agreed that usually her aunty was at the house when she was there.

    [74]   T120-121.

    [75]   T121.26.

    [76]   T121.31-37.

19. C agreed that before she told her dad about the accused touching her she had heard her mother talking in a way that made it sound like her mother did not like the accused. She said this was probably because she would say that the accused did not do anything to help her aunty. She did not hear her mother make such comments often.[77] After some initial hesitancy, possibly because she did not fully understand the implications of the question, C denied that the things she had heard her mother say about the accused made her think that he was a bad person.[78] C told the court that her mother had not told her what to say to the police prior to her first interview and that she had not told the police things which were not true simply because her mum was in the room with her, saying that her mother was just there for ‘moral support’.[79]

    Complaint

    [77]   T123.23-32.

    [78]   T124.3-10.

    [79]   T124.11-23.

20. C said that she did not think she heard anyone on the walk say anything bad about the accused at the time she made her disclosure to her father and did not think she heard them doing so at any time before she spoke to police.[80]

    [80]   T134.17-36.

21. In cross examination, C said that on the way back down from a hike to Devil’s Peak, there were discussions amongst the group about paedophiles before she made the disclosure to her father. She could not recall who raised the topic. She knew what the word paedophile meant and had probably discussed it with her father when talking about stranger danger. Her father told her on the walk to be wary of family members and friends, not just strangers. She denied that discussing that topic had made her think that the accused might be that sort of person, rather, it had made her want to tell her father because the subject had already been raised.[81] No one had suggested to her that the accused was a paedophile before she made her disclosure to her father.[82]

    [81]   T140-141.

    [82]   T141.1-22.

22. She told the court that she may have had a discussion with her aunty, the accused’s former wife, about keeping her safe from people who might touch her in a bad way, but not with the accused himself. Before making her disclosure, she had also had discussions with her mother about stranger danger.[83]

    [83]   T142.21-38.

    Other prosecution witnesses

23. At the commencement of the trial, defence counsel indicated that she required all witnesses to be called, or at least presented for cross examination, by the prosecution.[84] As a result, it was agreed between the prosecution and the defence that the affidavits of Sheree, IB, AJC, Darren and AO were tendered. At the request of defence the prosecution also tendered a short transcript of the child BB, the youngest brother of the complainant.

    TJB

    [84]   T27-28.

24. TJB is the father of C. He and C’s mother separated in August 2015. His present partner is AJC. C and her brothers spent the 2019 September and October school holidays with him and his partner in Quorn. TJB has known the accused for many years.[85] His sister Sheree, her two children Memphis and Alexander and a friend called Trevor also stayed with them during that holiday period.[86] The day after his sister arrived, most of the family group went for a walk on the Devil’s Peak Trail just outside of Quorn.[87] By the time they were coming down from the peak it was getting dark. Sheree walked ahead of the group with IB. TJB, AJC, C, Trevor and Memphis were walking together a long way behind the leading pair. He said that there was talk about trying to get the kids out of the house to play in the park across the road. He had made that suggestion a couple of times but C was reluctant to go anywhere without him or another adult. C told him that she was scared of paedophiles. TJB told her that she was being silly and that there were no paedophiles lurking in the park. C was not convinced and said ‘I don’t care, I don’t wanna go without you’. TJB then told her that it was usually people who are close to you that break your trust and that you have to be a bit careful of. C was silent for a moment and then she brought up the accused’s name:

    She said ‘Hey dad, you know Richard, right?’ And I said ‘yes, of course I know Richard’. And then she told me ‘Yeah, well, I think, I think he’s a little bit shonky’. And I said ‘Shonky how?’ And she told me that he’d made her feel uncomfortable a lot when he’s around, especially when they’re alone. And she told me that, basically, when everyone’s kissing C goodbye and Richard kisses her, makes her feel very uncomfortable, and when there - when she is at the house getting babysat, basically, she felt uncomfortable. And we, I don’t know, she - I’m not entirely sure what exactly she said.[88]

    [85]   T151.21-27.

    [86]T153.

    [87]   T154.

    [88]T155-156.

25. He was asked to recount as best he could what C said to him. He continued:

    She said that Richard got her to sit on his lap occasionally; and one time, when she was sitting on her lap (sic), he put his hand up her shirt and grabbed her upper region.[89]

    [89]   T156.9-12.

26. TJB said that the above was his interpretation of what C was saying because she was very distraught at the time. As to what C said about the accused placing his hand under her top TJB said:

    She just said - she used her hands, and she said ‘I was on his lap, and he put his hand up my top and grabbed me’.[90]

    [90]   T156.22-24.

27. He then demonstrated the action C performed when telling him this, which was to place an open hand under her top from below reaching up to the area of her chest. C was distressed at this time and he told her that was all right if she had something to tell him. They had a ‘breather’ and he told her that she was being very brave and strong and that if there was anything else to tell, he needed to know about it. She then indicated with one open hand towards her genital region and made contact with that area performing a clutching motion on it.[91] She then broke down in tears.[92]

    [91]   T158-159.

    [92]   T157.

28. After a further pause they continued walking to the car. He did not raise the subject with her again at that time, but C said she wanted to speak with her mother. In the circumstances TJB made the decision that a phone call would be made the next day. Only he and his partner were present when the disclosure was made. Sheree was not within earshot at that time.

29. The next day TJB texted C’s mother asking her to call him as soon as possible. He told her generally what C had said before C spoke with her. A decision was made that C and her siblings should remain with their father and that the matter could be reported to police on C’s return to Port Lincoln. TJB said that he has never brought the topic up again with C.

30. In cross examination TJB said that C had mentioned her fear of paedophiles prior to her disclosure. She brought the topic up regularly. To his observation she never seemed to want to go anywhere by herself.[93] There had been no mention of the accused touching her or making her feel uncomfortable before the walk started.

    MJW

    [93]   T161.22-33.

31. MJW is the mother of C. After she and her children had moved to their present address sometime in 2018, the children were able to see a lot more of her sister AO, who lived with the accused behind them. At all relevant times, MJW had worked full-time. This meant that her sister and the accused would at times look after the children during the day. C and the other children would go to AO’s house every weekend. They had a lot of sleepovers there which included C. They would also visit for shorter periods, sometimes on their own. Sometimes C would venture up the driveway on her own to pay a visit.[94] Sleepovers would only occur during the week on public holidays or pupil free days. Her sister was in poor health with serious kidney problems. Nonetheless, her sister continued to work during 2018 and 2019. Her sister’s work required her at times to work during the day and at times at night. On occasions when her sister was at work the children would be alone in the house with the accused.

    [94]   T180.

32. When she first spoke with C after the disclosure had been made to C’s father, she asked her what had happened and C told her that the accused had been putting his hands up her top and into her knickers. She asked her if he had been putting his fingers inside of her and she said no that he had been putting his fingers into her knickers and onto her vagina but opening her vagina up and putting his fingers in there. When she asked C if it could just have been a bad dream, C said no, it was not a bad dream because it had happened more than five times. C also told her that the accused always kissed her on the lips. When asked what she did to make the accused stop, C said that she would always say that she was hungry or needed to go to the toilet and that this would make him stop and that the last time he did it she told him to stop and he did. When MJW asked C why she had not told her about these things earlier, she said it was because she did not want to upset her mother or to get in trouble. C told her that the touching occurred in the lounge room at AO’s house on the beanbag and that the accused would make her sit on his lap.[95] MJW said that C was crying throughout their conversation.

    [95]   T186.1-10.

33. After that conversation with C, MJW went straight to AO’s house. The accused was there, AO was there, her mother (D) was there and two of her mother’s friends were present. Her mother left with her friends. MJW went inside, made her sister fetch the accused and confronted him with what she had been told. His reaction was to say ‘I didn’t do it. I love them kids.’[96] About a week later, on the day that the children returned to her care, MJW took C to the police station.

    [96]   T188.7.

34. In cross examination, MJW said that had she known the accused was touching her daughter she would not have let her visit AO’s house. She agreed that the breakdown in her relationship with C’s father had an unsettling impact on her children in the initial stages. She said in effect, that things had settled down after that. MJW said that prior to these allegations, there had not been any tension between her and the accused but there had been tension between the accused and her mother.[97] She did not think that this tension had coincided with the presence of her mother living with the accused and AO. To her observation, the tension was because the accused did not like being told by her mother that he should find employment and provide more help to her sister. She did not recall the accused having employment and said that it was years between him holding down jobs. MJW did not think that there had been arguing or fighting between her and the accused prior to these allegations coming to light. She conceded that there might have been when she asked him to do things and he was too lazy to do them. She did not have such conversations in front of her children. She did not concede that any ill will towards the accused was an ongoing thing or that her children would ever have been aware of her having had an argument with him.[98] She agreed when it was put to her that she had not told police in her statement that C had said there had been any touching in or on a beanbag, but maintained that C had told her this. She had not reminded C what to say to police prior to entering the interview and did not tell her what to say and nor did she speak to C about what she was to say when giving evidence in court.[99]

    AJC

    [97]   T194.1-3.

    [98]   T196.1-16.

    [99]   T202.

1. AJC is the partner of TJB. With the consent of defence, her affidavit was tendered as her evidence in chief.[100]

   [100] Exhibit P12.

2. Her evidence as to the holiday arrangements and the walk was consistent with that of TJB. She also stated that when the issue of going to the oval was mentioned, C stated that she was afraid of paedophiles. This was not the first time she had said this. Her description of the conversation immediately prior to the disclosure was consistent with TJB’s. Her description of how C made the disclosure to her father, including the hand gestures, was essentially consistent with the evidence of TJB. She said that once the disclosure started, she encouraged Trevor and Memphis to continue down the track without them.

3. In cross examination, AJC denied that there had been any conversation with C before the walk commenced about what the accused was alleged to have done. There was however a time prior to the hike when she, TJB and his sister were talking in the backyard. AJC said that C had also mentioned the topic of paedophiles or paedophilia on the school holiday visit prior to the September-October visit in 2019.[101] When cross examined about the motion C had made with her hand towards her genital area, AJC gave evidence consistent with TJB except as to C demonstrating a hand under her top.

   Sheree

   [101] T259.10-18.

4. Sheree is C’s paternal aunty. Her affidavit was tendered as her evidence in chief with the consent of defence counsel. Her evidence as to complaint was inconsistent with TJB and AJC.

5. Her evidence was that on the first day of her stay at her brother’s house they decided to go for a hike up to Devil’s Peak and that before they left, C was talking to TJB in the backyard of his house and saying something about the accused getting her to sit on his lap and putting his hand up her top. C said that she felt weird and uncomfortable about it.

6. At the time she heard the disclosure she said C was not hysterical, but you could tell she was upset. Not long after that conversation, they departed for the walk. She said that she, TJB, C and AJC were present when the conversation took place. There had been no reference to the word paedophile and she could not recall the word ‘shonky’ being used.[102] Her observation of TJB’s reaction was that he wanted to know more but that he did not ask for any more information at that time.

   D

   [102] T226.

7. D is C’s maternal grandmother.

8. From 2016 D lived in Adelaide and then returned to Port Lincoln permanently in August 2019. D had a very close relationship with C and her siblings. When she visited Port Lincoln, she would see C and her brothers either at the accused’s house or MJW’s house. D said that in the last few months before she relocated Port Lincoln, C probably slept over with her at the accused’s house once and then after August 2019, C only slept over on the first night of her return and not again prior to the allegations coming to light.[103] On one occasion she saw C sitting on the accused’s lap in the lounge room on the lounge chair.[104] She had also observed contact between C and the accused on the beanbag on the floor of the lounge room. On the last occasion she recalls C having stayed for a sleepover, she saw the accused go into her room and lie on her bed with C.  She went in and told him she was wanting to go to bed and asked him to leave.[105]

   [103] T239.

   [104] Ibid.

   [105] T240.1-4. The bedroom D slept in was the spare room which C slept in when having sleepovers.

9. To her observation, C appeared to be the accused’s favourite whereas her brothers were left to do their own thing. She described him as hanging around with C.[106] She did not believe that the accused was employed in 2018 or 2019, but said that he had worked with a scrapyard for a brief period. There were occasions during her monthly visits and after she had moved back in August when C was at AO’s house in the company of only the accused. That there were times when she left C alone with the accused.

   [106] T241.2-4.

10. Cross examination of this witness was directed largely to establishing that there had been a severe antipathy between her and the accused. She thought the occasion of seeing the accused lie down on her bed with C was on the one night C had slept at AO’s house when she (D) first came back from Adelaide, but she was uncertain about that. She agreed that she had not mentioned the bed incident to anyone before giving her evidence.

11. She denied that there was a high level of animosity between herself and the accused prior to these allegations coming to light. He had never told her that she was overbearing or asked her to butt out of his affairs. She denied that she and her daughter, C’s mother, spoke badly about the accused within earshot of anyone else in the house. She denied, plausibly in my view, that she was deliberately making up a version of events to make it appear as though the accused was guilty of this offence. The accused played video games with C not because C wanted to do so but because the accused would ‘just put himself there’.[107] She could not recall the accused sitting on the beanbag with any of the children except C.

    IB

    [107] T253.4-5.

12. IB is C’s oldest brother. With the consent of defence his affidavit was tendered as his evidence in chief.[108] He is 17 years old. His evidence was that on the walk back down from Devil’s Peak he could hear C and her father talking to each other behind him about paedophiles and he heard C say something about the accused being one of them. He heard C start to get upset and decided to walk ahead. He did not take part in the conversation. When C and her father returned to the vehicles, he could see that C had red eyes and appeared to have been crying. He has never discussed with her what it was that made her upset on that day.

    [108] Exhibit P13.

13. In cross examination IB was adamant that there were no occasions on which he stayed over at AO’s house where the accused ducked into his room to see if he needed a drink or to say goodnight.[109] On the walk, he did not hear much other than the word paedophiles and a reference to the accused.[110] This was the first occasion he had ever heard C talk about paedophiles.

    Darren

    [109] T272.

    [110] T276.29-38.

14. Darren is a friend of C’s mother and has lived as her housemate for about a decade. His affidavits were tendered with the consent of defence[111] and he was cross examined.

    [111] Exhibits P14 and P15.

15. Sometimes he would notice the accused sitting on the couch with C and on one occasion sitting on the beanbag with her playing computer games. He could not recall C ever sleeping in the spare room, only in the lounge room on a mattress.

16. One evening, a couple of months before D moved into the house, he left his bedroom to go to the toilet, which required him to walk through the lounge room. The house was in darkness. From the light coming out of his bedroom he saw C on a mattress cuddled up in the accused’s arms, as in a ‘spooning’ position with the accused behind C. He did not speak to the accused about this and only remembered it after the allegations came to light.

17. In cross examination he said that he did not notice anything out of the ordinary about the behaviour of the accused for many years. He said the only tension he witnessed between the accused and D was on the day of an argument about yard work.[112]

    [112] T283-284.

18. He acknowledged he spent a lot of time at the house even though he worked. He plausibly denied giving a version of events convenient to the family or that he was conflicted about having to give evidence.[113]

    [113] T286.3-6.

19. He recalled a single occasion when D and C’s mother had taken issue with the accused not working enough.[114]

    [114] T288.11-12.

20. His version about seeing the accused lying on the mattress with C was not significantly shaken by cross examination.

    AO

21. AO’s affidavits[115] were tendered at the request of defence. She was not cross examined. She is the aunty of C and the former wife of the accused. Since about mid-2018 C started sleeping in the spare bedroom on a double bed. She said that she had seen the accused sit on the beanbag in the lounge room at times when the children were also sitting on it whilst playing games.

    [115] Exhibits P17 and P18.

22. AO said that when C slept in the spare bed, she would make sure that she had enough blankets and pillows and leave the TV on before saying goodnight. The door to the spare bedroom was always left open and the light was left on. She would often give C a hug when saying goodnight. She had seen the accused give C a hug when saying goodnight to her, but he would normally do it before C got into bed. She said that she had seen the accused lie on the bed with C at times to give her a hug, but she was always in the room when she saw this happen.

23. AO said that there were times when she left the accused at home with the children including C.

24. AO said that in the months leading up to September 2019, C stopped coming to visit as frequently as she had in the past and no longer stayed overnight unless her brothers stayed as well. There were occasions on which C had stayed overnight on her own.

    BB

25. The five-page transcript of an interview with C’s infant brother BB was tendered[116] at the request of defence. He was not cross examined. BB was 14 years old at the time of interview. He said that the beanbag could fit three people in it but otherwise added nothing of significance to the evidence.

    [116] Exhibit P16.

    Mark Andrew Heading – Record of Interview

26. The accused was arrested by police and interviewed under caution on 12 October 2019. He denied having touched C inappropriately. He acknowledged having had the children alone in the house once or twice. He said that he was usually in the laundry smoking when the children were over. This left them to play video games in the lounge room. When the children stayed overnight, they usually slept on the couch or in the spare room. As to hugging C in bed, he said that he would briefly go into the room to say goodnight, tuck her in and give her a hug in the way that a person would normally hug a child, and sometimes when she was on the bed. When C visited, she would approach him and hug him and tell him she loved him. He vehemently denied touching C on the vagina.

    Defence case

    Evidence of Accused

    XN

27. The accused was 39 years old at the time of trial. He told me about his work history in a variety of jobs in Port Lincoln. On his account, the only times he has been out of work were a period of stress leave and on occasions when he has had bowel surgery. In response to the evidence from D that he was not working much in the years prior to the allegations coming to light, he said that he had six months stress leave from On The Run and then one of his bowel surgeries caused him to be off work for about three months.[117]

    [117] T362.12-18.

28. Contrary to the evidence of D, the accused said that he was very engaged with the details of his former wife’s illnesses and the treatment that was administered at home. In that regard, his evidence did seem to demonstrate a relatively detailed knowledge of those illnesses and treatments. He said that his former wife had worked most of the time as a full-time residential carer but that the hours were irregular, sometimes requiring her to stay overnight with a client. He described his relationship with D as frustrating and rocky. They argued quite a bit in person and by text. D treated him like dirt but she would not do it around other people. During periods when he was not working, she would nag him to get a job despite him being ill.[118] He regarded her as being overbearing and controlling. The relationship deteriorated after D moved in with them. Prior to that they did not have a bad relationship but it was not exactly good either.[119] He said that sometimes he and D used to swear at each other within the earshot of others.[120]

    [118] T369.

    [119] Ibid.

    [120] T371.

29. The accused said that on the day he became aware of the allegations, C’s mother confronted him and accused him of touching her daughter. He said that his immediate reaction was to say that he had not done so and that he loved the children and would not do anything to hurt them. He said that being confronted with the allegations made him cry. He said that because he and his ex-wife could not have children, he treated MJW’s children as his own.[121] He described his relationship with his former wife as having been very loving.[122]

    [121] T372.1-18.

    [122] T373.

30. Prior to being interviewed by police he had had a bit to drink.[123] He had been an alcoholic and was trying to stop drinking. He was not drunk when he was interviewed by police, but he was feeling unwell and half asleep. The fact of the allegations had increased his drinking and caused a great deal of distress.[124]

    [123] T374.

    [124] T375.

31. In the lead up to these allegations, he was a daily drinker, and his preference was Port, sometimes a bottle a day.[125]

    [125] T421.

32. Drinking did not make him forget things that he had done. He would drink more on the weekends but not to what he regarded as excessive.[126] He did not become more affectionate when drunk.[127]

    [126] T423.

    [127] T424.12-9.

33. He said that up to the point when the allegations were made, the children would be up at his house most days, sometimes five times a day but there was no real pattern to it.[128] Prior to C’s family moving into the house below his, the children would not visit as frequently but still regularly.[129] The sheep referred to by the complainant in one of her interviews had arrived at their property about a year before the allegations came to light. He described his interaction with the children in effect as being playful and happy. He would watch YouTube at times with them.[130]  He said that he used to spend a lot of time in the laundry smoking cigarettes or cannabis. When he was in the laundry, he usually had the back door open and the interior laundry door closed. He had a computer in the laundry and a swivel chair to sit on.[131] There was only one chair in the laundry. He said that C did not spend much time in the laundry with him because it was where he smoked. Every now and then the other children would come into the laundry when he was there. He agreed that C would sit on his lap in the laundry and said that she would just jump up onto his lap because she wanted to watch YouTube with him. He did not ever ask her to sit on his lap or force her to do so and he did not think there was a particular problem with her doing so.[132] When she sat on his lap in the laundry, she would jump up and because of the design of the chair he had to put an arm around her to hold her.[133] She would lean against him[134] and his arm would be in contact with her stomach.[135]

    [128] T380.

    [129] T409.32-34; T410.7-10.

    [130] T381.

    [131] T381-382.

    [132] T382-383.

    [133] T438.30-38.

    [134] T439.34-36.

    [135] T440.4-5.

34. The accused said that he had never put his hand up C’s top when she was sitting on his lap in the laundry and that he did not think there was ever a time when his hand would have been on her skin under her top. He had never put his hands down C’s pants in the laundry or touched her on the vagina in that place. He said that at no time he ever touched or attempted to touch C on the vagina.[136]

    [136] T384.

35. The accused agreed that C did sit on his lap in the lounge room when he was sitting in his lounge chair.[137] In the lounge room the sitting on his lap always happened in the armchair on which he would sit.[138] He said he did not think she was too old for it.[139]

    [137] T385.

    [138] T437.6-8.

    [139] T438.8-16.

36. He did not use the beanbag very often because it was difficult for him to get in and out of. Most of the time when C was playing video games or watching television, she sat in the beanbag.[140] It was possible that C had sat on his lap on the beanbag, but he could not remember any occasion on which she had done so.[141] He denied having touched C inappropriately on any occasion in the lounge room.

    [140] T385.

    [141] T386-386.

37. He said that there was one occasion when C was sitting on his lap on the lounge chair and he put his hand up her top and pushed her belly button saying: ‘Look, you got a belly button’. He then lifted up his own top to show her that he did not have one. That was the only time he had ever put his hand up her top.[142] That incident had occurred a couple of years prior to the allegations coming to light. He had done this because he thought it was funny and he thought she would also find it funny.[143] He had not ever done this with anyone else. He used an open hand pressing on her belly button area under her top.[144] Her reaction was to laugh and tell him that he was an alien. The touching on her stomach would have lasted about two seconds.

    [142] T386.12-18.

    [143] T387.15-21.

    [144] T388.1-6.

38. The accused said that sometimes it would be just him and C in the lounge room and laundry. Sometimes he would watch television and play games with her in the lounge room. He would do so when the children wanted him to do it. He denied liking C best of all or interacting differently with her because she was a girl. He had never laid down with either of C’s brothers.[145] He was not affected by alcohol on the occasion when he lay on the floor with C.[146]

    Kisses

    [145] T418.1-14.

    [146] T419.1-7.

39. The accused said that he gave C a kiss every now and then when she was leaving the house. He would give her a kiss wherever she wanted it, on the lips or the cheek. He was not conscious of her ever turning her head to avoid his kisses and it was a matter of no significance to him whether he kissed her goodbye on the cheek or lips. This would occur when his ex-wife was present. There might have been a time when he gave C a hug and a kiss when his ex-wife was not there but he could not really remember it.[147] He said that he never told C that she had to kiss him and that kissing occurred when C approached him sometimes even before she approached her aunty. If that happened then AO would say ‘hey, where’s mine?’. He did not think that there was anything inappropriate about the fact that he had kissed his niece in the manner he described.

    [147] T391.1-30.

40. In cross examination the accused agreed kissing was part of the fact that he loved her. He said he never had to ask her to kiss him, she would just come up and do it.[148]  He denied trying to kiss C on the lips. It was her decision where she kissed him and he never forced her to kiss him on the mouth.[149]

    [148] T442.29-38.

    [149] T443.10-21.

41. He said he thought there was nothing wrong with it, because she was his niece.[150] He acknowledged there were times when he kissed her when he had been drinking.[151]

    [150] T443.36.

    [151] T444.2-9.

42. He said C kissed everyone on the mouth[152] and that he just did it because it was the culture of the family.[153] He volunteered that C was making allegations because she has been told to do so.[154]   He said he could not recall if he did it when others were not around conceding that there might have been a time or two.[155]

    Sleepovers

    [152] T444.16-17.

    [153] T444.20-21.

    [154] T444.28-29.

    [155] T446.

43. When the children slept over they would usually sleep in the lounge room. C would sometimes sleep in the spare room when her grandma was not there.[156] Neither of them slept in the spare room very often. After D came to live with them, C’s preference was to sleep in the spare bedroom with her. Contrary to Darren’s evidence, he said that there was never a mattress laid out in the lounge room and there was not really a spare mattress in the house.[157] If the children were sleeping in the spare bedroom, he would on occasions go in and see if they needed a drink or wanted anything. He said that the boys were more independent than C but that he would hug them as well as C. In response to C’s allegations that he was in the habit of entering the spare room, lying down on the bed next to her and giving her a hug he agreed that he probably laid down on the bed to give her a hug to say goodnight.[158] He denied that there was ever an occasion as described by D where he was lying on the bed with C and was asked to leave by D.[159] On occasions when he did lie down on the bed with the kids to give them a hug goodnight, his ex-wife would be in the lounge room and would have been able to see him in there. The hugs were a quick cuddle, lying down behind her on the bed. He conceded that it might look like a spoon position,[160] but said it was just a hug goodnight.

    [156] T427.

    [157] T394.

    [158] T396.3-6.

    [159] T396.9-16.

    [160] T430.23-24

1. Apart from hugging her, he did not touch her in any other way on these occasions. Sometimes when he gave C a hug goodnight he was not lying on the bed in the spare room, it depended upon where C was in the room.[161] He said that he did not give much thought to whether it was an appropriate thing to do.[162]

   [161] T432.10

   [162] T432.15.

2. When cross examined about the position he would usually be in when hugging C on the bed he said he would not really press his body up against her, just a hug with his arms.[163]  He conceded that sometimes with the goodnight hug he would be affected by alcohol, but that did not make him give her more affection.[164]

   [163] T434.30.

   [164] T435.17-30.

3. If D was present, the accused said he would not go into the bedroom.[165]

   [165] T436.8-12.

4. The accused said that there were times when he was present with C and her brothers at their house and times when he was alone with C at her house.[166]

   Darren and the lying on the floor incident

   [166] T397.12-16.

5. The accused said that Darren spent most of his time in his bedroom and that he did not see him much. He denied Darren’s version as to having seen him lying with C on a mattress in the lounge room. He said that in fact there was an occasion where he was lying on a blanket in the lounge room because C had wanted him to lie down with her to watch YouTube. This was just after he had got home from working night shift at On The Run. It would have been about 8 o’clock in the morning and he was wearing his work uniform. He was half asleep at the time Darren entered and he was startled.[167] They had a brief exchange and Darren laughed at him. He could not remember exactly what position he was in with C on the floor or whether he had his arm around her. He thought that C was about eight years old at the time this occurred. He had only been laying down with her because he was trying to be a good uncle and she had asked him to do so. His aim with respect to all of the children was to keep them happy and be a cool uncle.[168]

   [167] T399.14-22.

   [168] T401.

6. The accused was cross examined at length about ‘spooning’ with C on the occasion described by Darren. He said that there was only one occasion on which he lay down on the floor with C and that he remembered it.[169]

   [169] T407.25-35.

7. He did not think that he was still working for On The Run during 2018 but it was possible.[170] Other than this time and lying down to give C a hug in her bedroom there were no other occasions on which he laid down with her.[171] He could not recall exactly what position he was in when he was lying on the lounge room floor with C.[172] It was quite possible that he was lying behind her holding or cuddling her in his arms in some way.[173] He did not think he was cuddling her.[174] It was possible that C was nine or 10 years old when this happened.[175] He did not think it was inappropriate to do this, because she was his niece.[176] He did not think that C’s mother or father would have cared that he had done so.[177] He agreed that he enjoyed lying on the lounge room floor with C but he only did it because she wanted him to.[178] When asked about whether he was cuddling C, he said that she was a fair distance in front of him and that he was not pressing up against her. His groin was not in contact with her and was nowhere near her.[179] Keeping that degree of separation is something that he would have done so that it was not inappropriate and he could not see the point in lying right up against her.[180]  He did not have a sexual inclination towards C or any of the children.[181] He then said that he would not ‘spoon’ a child because that would be the wrong thing to do, in his eyes.[182] Lying down with C was simply an act of normal affection towards her.[183]

   [170] T410.15-17.

   [171] T410-411.

   [172] T411.8-11.

   [173] T411.21-25.

   [174] T411.

   [175] T412.25-29.

   [176] T413.4-9.

   [177] T413.12-17.

   [178] T414.1-11.

   [179] T415.1-13.

   [180] T415.19-30.

   [181] T415.37

   [182] T416.16-19.

   [183] T416.32-35.

8. He would not go into the spare room and spoon with C. He would go in to check on her and give her a cuddle, but not necessarily lie down for any extended length of time in that room.[184]

   [184] T428.23-27.

9. He agreed that sometimes when C was sitting on his lap in the lounge chair he would hold her around her stomach.[185]

   [185] T439.18-21.

   Analysis

10. On both the prosecution case and the evidence of the accused, I am satisfied that the accused had ample opportunity to commit the conduct alleged.  There was no dispute that he was alone with C at his house on a number of occasions.

    The complainant’s evidence

11. I have scrutinised the evidence of C with care. In assessing her evidence, I have considered various inconsistencies with her version of events.

12. In assessing C’s evidence for inconsistencies, I have taken into account that she could not say when the offending commenced or over what period it continued. For that reason, I have given no weight to her evidence that the accused had placed his hand in her pants ‘maybe once a day’.  Without temporal context it is not possible to gauge that statement for reliability.

13. C’s evidence was also inconsistent when she said that on the last occasion the accused put his hand down her pants and up her top.  Elsewhere she said he had never done both things on the same occasion.

14. I will discuss later my reasons for not being able to accept C’s evidence that the accused put his hand in her pants in the laundry, but that evidence was also inconsistent with other evidence she gave that the accused would only touch her inside her pants when she was on the beanbag when she was playing games.  There was also uncertainty on C’s part as to whether she had told the accused on one or two occasions to stop touching her.

15. I have considered those inconsistencies individually and cumulatively.  I have taken into account that C was recounting matters which, on her version, were repetitive and for that reason difficult to distinguish between. 

16. Nonetheless, whilst I have taken all of those inconsistencies into account, they do not alter my assessment of C as an honest and reliable witness on those matters which I have accepted her on.  I found her evidence to be thoughtful and cogent.

17. That she was inconsistent in relation to those matters has not affected my overall assessment of her as an honest and reliable witness. I remind myself that the version of events she gave to police in the two interviews was not sworn evidence. In my view, there was nothing apparently forced or rehearsed in the manner in which her account of events unfolded. She did not appear to exaggerate and on a number of occasions qualified her answers in such a way as to admit of some uncertainty on her part. She did not appear to be overly conscious of having her mother or aunty present during the interviews. She did not appear to be a child who was repeating things she had been told to say. I accept her evidence in cross examination, albeit with the benefit of hindsight, that she regarded her mother’s presence in the interview as being for ‘moral support’ only. I accept her evidence that her mother did not tell her what to say to police or in her evidence at trial.

18. Several matters were abundantly clear from her interviews. She genuinely believed the accused had touched her on the stomach in the laundry on several separate occasions. She did not like the accused kissing her on the lips and she tried to avoid him doing so. She also genuinely believed that the accused had touched her on the vagina on more than one occasion. I accept her as an honest and reliable witness on those matters. I note that at times during her second interview with police C became tearful.  On one occasion it occurred when she was speaking about wanting to have told her mother prior to making her initial complaint.  That was not the evidence of a witness who was lying.

19. C maintained her version of events during cross examination and her credibility was not materially affected by it. At one point in cross examination, she broke down briefly. That came when she was discussing the accused kissing her.[186] Whilst there are obviously limits to the weight that can be given to the demeanour of a child being cross-examined as to deeply personal matters, the cross examination was conducted in a cautious and respectful manner. Her upset during that moment in her evidence appeared to me to be genuine. I exclude as a reasonable possibility that C was giving a version of events which had somehow erroneously formed in her mind either because she was aware of significant ill feeling towards the accused on the part of her mother or grandmother or because of any interest she had developed on the topic of paedophiles, or because of the nature of the conversation on the walk or a combination of all of those matters. I found her description of the accused as being emotionless when he touched her, to be a telling and mature observation.

    [186] T113-114.

20. Where I have difficulty in drawing conclusions from C’s evidence is as to the precise nature and extent of some of the particularised conduct. Firstly, I am not able to be satisfied beyond reasonable doubt that the accused ever touched C on the vagina in the laundry. C herself was ultimately uncertain of that matter.[187] At its highest, her account amounted to a belief that it might or probably had happened in the laundry. Whilst I regard her as an honest witness, her evidence on that matter is not able to satisfy me to the requisite standard of proof.

    [187] T125.33-34.

21. I also accept C’s evidence about the accused lying next to her on occasions in the spare room.  As with her evidence about the touching on the vagina, her account of the goodnight hug was careful and clearly not exaggerated to make it seem anything more than it was.

22. I am also left with a reasonable doubt about the significance of the evidence as to the kissing. Unlike a deliberate touching on the vagina, a kiss on the lips of a child is capable of occurring in innocent circumstances. It may alternately amount to an indecent assault depending on the context. On C’s evidence it is not possible to conclude on how many occasions the accused kissed her on the lips. C said ‘it only happened a couple of times I am pretty sure’.[188] I am also unable to reach any conclusion as to when the accused had kissed her on the lips in relation to her evidence about the touching under the top and the touching on the vagina. Further, putting aside the concession made by the accused, that it was possible he had kissed C on the lips when no one else was home, which was speculation on his part, the balance of the evidence suggests that this was something which occurred in the presence of others and in particular his former wife. I cannot safely conclude whether the kissing on the lips occurred before the first touching on the stomach or vagina and for that reason, whether it involves the necessary quality of indecency. The accused’s former wife cannot have observed any context which struck her as indecent or inappropriate about the kissing or she could have been expected to say so. Without further evidence of the context and timing and the manner of the actual kiss or kisses themselves I am not able to be satisfied to the requisite standard that on any occasion the kissing amounted to an indecent assault or was evidence of the accused’s sexual attraction to C. It does however support an inference as to his perception of their closeness and of him treating her differently to her siblings.

    [188] T112, 13-16, 19-22.

23. I turn to the question of the touching under the top. This was an activity said by C to have been confined to the laundry. I accept the evidence of C that the accused made her sit on his lap in the laundry on several occasions. I accept that she would enter the laundry at his instigation. I accept that C did not want the accused to touch her on the stomach. I infer that having to sit on his lap and the fact that he did touch her stomach made her feel uncomfortable. In order to be an indecent assault, the touching must be accompanied by circumstances of indecency or have a sexual connotation.[189] The motive of the accused in performing the touching can be relevant to that question. On C’s evidence, the touching occurred on the stomach with the accused placing his hand there and either not moving it or sometimes touching her navel. There was no groping or moving the hand up to her chest region. Due to the nature of the action described, it is difficult for me to be satisfied beyond reasonable doubt that such touching had a sexual connotation. The stomach touching did not occur in combination with a touching on the vagina on any occasion. I am however satisfied that this evidence is probative of the closeness of the relationship the accused was developing with C and the normalisation of physical contact between them at his behest.

    [189] R v C, M [2014] SASCFC 116.

24. I accept the evidence of C that the accused touched her on the vagina underneath her underpants on more than one occasion. Her account was sufficiently detailed that I exclude as a reasonable possibility that she could be mistaken about some form of accidental touching. I am not able to reach a conclusion as to exactly how many occasions this occurred. I am satisfied that it occurred on separate occasions, in the lounge room and that on at least one occasion the accused parted her labia majora and touched the area between the labia majora, in other words, a penetrative act. I regard the evidence of C in describing the way in which the accused touched her in order to ‘open’ her vagina and touch between the labia as compelling. It was a thoughtful, detailed and careful description of an action which would be difficult for a child of 10 years to describe. I am satisfied that in describing the accused’s conduct as she did, she was recounting something that she had experienced. In my view, that description was made more persuasive by the care C took to distinguish between what the accused did do and a penetration of the vaginal canal, which she was clear he did not do. After careful consideration, I am satisfied that the accused touched C on the vagina on several separate occasions over the course of several days during the period alleged but I cannot safely reach a conclusion about the duration of the course of conduct. I am satisfied that he placed his finger between her labia majora in the manner I have referred to above on at least one occasion. 

    Complaint

25. In assessing C’s evidence, I have considered the evidence of complaint. I found the evidence of complaint to be compelling. Taken as a whole, it provides support for C’s credibility. In particular, the evidence of C’s father and AJC described C’s distress, her momentary inability to speak once she became upset and her gesturing in the manner they saw, in vivid terms. I accept their evidence as to the initial complaint arising in the circumstances and manner it did. I am satisfied that neither of them was embellishing their account. To the extent that they gave versions which were slightly inconsistent, that has not affected my assessment of their honesty or reliability. In my view, such minor differences can be understood in the context of having been parties to an unexpected and disturbing revelation. I am satisfied that C’s initial complaint was made in a manner and in circumstances which showed consistency of conduct on her part. As I have mentioned, I have excluded as a reasonable possibility that C’s allegations against the accused arose out of confusion or because her view of the accused was somehow tainted by the opinions of others. In that regard, I reject as a reasonable possibility the submission made by defence counsel that the conversation about paedophiles may have created confusion in her mind. To the contrary, the complaint evidence demonstrated the reasoning process and realisation which made C complain at that time. Having been told by her father, in effect, that sexual assault could be committed within the family, C’s concerns about the ‘sketchy’ or ‘shonky’ behaviour of the accused crystallised in her mind and triggered the complaint.

26. I have closely considered and rejected the evidence of Sheree that C made a complaint at her father’s house before the walk. The witness was mistaken as to that matter. On any view, C’s revelations took her father and stepmother by surprise. They treated it seriously and made appropriate arrangements for C to speak with her mother. I do not accept that if C had made a complaint of a sexual nature about the accused at the time Sheree said, that the family would then have immediately carried through on the plan to do the lengthy walk up Devil’s Peak. I do not regard Sheree as someone who was trying to mislead the court, rather she was mistaken and unreliable on the topic of complaint. Her evidence was against the weight of other evidence that I found persuasive.  In particular, there was no need for C’s father to fabricate the location at which the complaint was made and the exact circumstances and location of such a revelation were inherently likely to be matters he would remember.

27. I accept as honest and reliable, the evidence of C’s mother as to the expanded complaint. In my view, it was consistent behaviour for C to elaborate on such personal matters once she had returned to live with her primary carer. In summary, I am satisfied that the complaint evidence was probative and reliable to demonstrate how the complaint came to be made, to demonstrate consistency of conduct on C’s part and to show why the complaint and the elaboration were made at the times they were.

    Evidence of other prosecution witnesses

28. I regarded D as generally an honest and reliable witness. Much of her evidence in cross examination was on the topic of her relationship with the accused and his work history. I found those matters of limited relevance to these allegations. She may well have been mistaken about his work history and clearly had a negative view about it. It was clear that there was some antipathy between her and the accused. I allow for the possibility that it was more pronounced than D said. That seems certainly to have been the case from the accused’s perspective. As I have accepted the evidence of C and rejected that her view of the accused was contaminated by that of her grandmother or any other person so as to give rise to innocently fabricated allegations, the nature of D’s relationship with the accused sheds no light on these allegations. I found her honest and reliable in her evidence that she saw the accused lying on the bed in the spare room. Her evidence on that matter came spontaneously and whilst she did not mention it when she first spoke to police, that matter does not affect my assessment of her as honest and reliable.

29. I accept the evidence of Darren that he saw the accused lying on the floor of the lounge room with C in a spooning position. I accept that it occurred in the circumstances he described and reject the evidence of the accused to the contrary. His evidence was detailed and clear. I regarded Darren as a straightforward witness who did not appear to have an agenda against the accused and who was doing his best to assist the court. I regarded him as both honest and reliable. Had he also seen the accused on the floor with C in the circumstances described by the accused, I am satisfied that he would have remembered it and said so.

    The accused

30. I am mindful of the fact that if I accept the evidence of the accused or if I cannot exclude it as a reasonable possibility, he must be acquitted of the charge.

31. I found the accused to be an unconvincing witness on several important matters. In particular, I found his evidence as to the inconsequential nature of C sitting on his lap to be unconvincing. His evidence implied that because there was only one chair in the laundry, it was for that reason necessary for C to sit on his lap whilst they watched the computer did not, in my view, seem plausible. C was approximately 10 years old at the time of the offending and it strikes me as most unusual that a child of that age would voluntarily choose to sit on his lap as he described. I reject his evidence that this was simply something C did with everyone. I reject his evidence that sometimes C would just choose to sit on his lap in places other than the laundry. Further, I reject his evidence that C would voluntarily join him in the laundry, where he spent a lot of time smoking, for the purpose of watching videos. On the accused’s own evidence, it was possible to watch YouTube videos on the television in the lounge room. There was no need for him to be alone in the laundry with C for that purpose. They could both comfortably have sat in the lounge room to do so. I am satisfied that the accused was in the habit of asking C into the laundry and to sit on his lap because he wanted to be alone with her. I also reject his evidence that C was not his favourite and that he did not treat her differently to her two older brothers. In my view, the difference cannot be explained simply by the fact that C’s brothers were older or more independent. I also reject that the design or something about the chair in the laundry meant that he was required to place his arm around C when they watched videos. C was not an infant, she was of an age where she would be able to balance herself in her uncle’s lap. It was not put to her in cross examination that there was anything about the chair which made holding her necessary. In my view, that evidence was a fabrication designed to make his own behaviour appear to be innocuous, as was his evidence that it was either necessary or C’s habit to lean back into him when she sat on his lap in that chair.

1. I cannot exclude as a reasonable possibility the evidence of the accused about having touched C’s belly button briefly on one occasion when he was talking about the scar on his stomach and his own lack of a navel. I accept that he has had numerous surgeries to his bowel and that he has the scar described. If that occurred, it seems to be a facet of the close personal relationship he was fostering between himself and C. I do not accept his evidence that this incident occurred in the presence of others. This was not put to any of the other witnesses. BB did not mention it and he was not cross examined on that matter. If that incident occurred, then I find that his evidence about others being present is an embellishment.

2. I place little weight on the accused’s evidence that it was difficult for him to get in and out of the beanbag. That may well have been the case, but he acknowledged he had sat in the beanbag and his evidence was that he had lain on the floor with C on one occasion at her request. Clearly he was able to get up and down from a prone position on the floor. I find that any difficulties he experienced doing so have no bearing on the likelihood or otherwise of his having touched C in a sexual way.

3. I do not accept the evidence of the accused that the kissing of C from time to time was a matter of no great significance to him. He acknowledged that it was an act of affection towards C. I am satisfied that it was a manifestation of something more than affection. It was, at the very least, something he did in furtherance of the closeness and physical nature of the relationship he was fostering with C. I do not accept his evidence that the kissing was C’s choice and instigated by her. His explanation in that regard struck me as both unconvincing and inherently implausible. In reaching that conclusion, I have not ‘worked backwards’ and based it on an acceptance of C’s evidence that this was not the case. I also reject the accused’s evidence that when C came to leave, she would choose to kiss him before her aunty, his former wife, and that it was she who would say to C ‘where’s mine?’. I am satisfied that this evidence was a fabrication designed to explain away the prosecution allegation that it was he who would insist on a kiss from C. I do not accept his evidence that he would only kiss C because goodbye kisses were simply a part of the culture of the family. I found it significant that the accused conceded in cross examination that there might have been occasions when he kissed C when no one else was present at the house. In his mind, this was not an activity which must, because of its nature, only have occurred in the presence of his former wife or another adult. That he conceded it as a possibility does not mean that it occurred but, it does suggest that the kissing was a frequent enough occurrence that he could not necessarily recall every occasion on which it occurred.

4. At one point in his evidence, the accused volunteered that C had made up these allegations because she had been told to do so.[190] I remind myself that it is impermissible to reason along the lines of asking ‘why would the complainant lie?’.[191] Nevertheless, the complainant was asked if she had been told by her mother what to say to police and much was made in cross examination about the disharmony in the family between the accused, D and C’s mother. The accused’s assertion appears to amount to a claim that C, who was only 10 at the time the disclosures were made, was motivated to make false claims because she had been directed to do so. The implication of his evidence was that C must have been directed to do so because of the friction between himself, D and C’s mother. There is no onus on the accused to prove a motive to lie or any matter. In her closing submissions, counsel for the accused did not suggest that C had a motive to lie or that she had been told what to say by anyone. Her submission was directed to the possibility that because C had become aware of ill feeling towards the accused, because she was aware of stranger danger and paedophiles and because her father had told her that paedophiles were usually people close to the family of a victim, she reasoned that the accused was a bad person, that he was that type of person and that her disclosures were made and developed because of that mistaken belief. For present purposes, I have decided not to reason along the lines of examining why C might have had a motive to lie but rather, to focus on whether she and the other prosecution witnesses were honest and reliable.

   [190] T444.28-29.

   [191] Palmer v The Queen (1998) 193 CLR 1.

5. I turn to the issue of the accused lying down on the bed in the spare room with C to give her a hug goodnight. He accepts that this occurred on occasions. On the evidence, it is not possible for me to determine on how many occasions this occurred but I am satisfied it occurred frequently. I have used that evidence for the limited purpose it was introduced by the prosecution. The accused said that he could not see anything wrong about doing this. The effect of his evidence was that he would do it simply as part of the bedtime routine. Whilst he did make it part of the routine when C slept in the spare bedroom, I do not accept that his actions were as altruistic as that. I am satisfied that he did so because the physical aspect of his relationship with C was developing in such a way that a physical closeness between them was becoming normalised. Whilst it was the evidence of his former wife that she had seen the accused lie on the bed to give C a hug on one occasion, I do not accept his evidence that in effect, to his mind there was simply nothing inappropriate with this being part of his routine with C.

6. I do not accept the evidence of the accused that when he was seen by Darren lying on a blanket in the lounge, that he did so because C requested him to lie next to her and watch YouTube and that he was simply trying to be a good uncle. Further, I reject his answers in cross examination to the effect that when he lay down on the floor behind C he was conscious of not being so close as to be in a ‘spooning’ position and that he deliberately kept a degree of separation from her on that occasion so that his behaviour would not be inappropriate. In my view, that was an example of the accused tailoring his evidence in response to a topic on which he was being closely cross examined. Similarly, his evidence in cross examination that he would not lie in a spooning position with a child because it was wrong in his eyes, struck me as an answer that he gave to counter the thrust of the prosecutor’s cross examination. There was nothing in his evidence in chief to suggest that he was particularly conscious of avoiding any appearance of impropriety. His basic position had been that he could see nothing wrong with the lying down next to C, with his body behind or to one side of her, to give her a hug. Those matters on which I have found the accused to have fabricated his version affect my assessment of his credit as a witness. I reject as a reasonable possibility the evidence of the accused that he did not ever touch C on her vagina. I have considered the evidence of the accused in isolation and in the context of the evidence as a whole. In addition to my rejection of his evidence, I find it to be against the weight of other evidence which I have found to be persuasive, honest and reliable.

7. Having rejected the accused’s evidence as not being honest and reliable with respect to several crucial matters, I have put it to one side. I have not used my rejection of his evidence as a ‘makeweight’ for the prosecution case. I have concentrated on whether the prosecution has proven every element of the offence beyond reasonable doubt.

   Conclusion

8. I turn to the elements of the offence. I am satisfied beyond reasonable doubt that the accused maintained a relationship with C during the period alleged. I am also satisfied beyond reasonable doubt that the accused engaged in at least two sexual acts with C during that period. On at least one occasion he digitally penetrated C’s labia majora with a finger or fingers. On other occasions he touched C’s vagina beneath her underpants with his hand. Both of these types of touching are clearly sexual acts as defined.[192] I am further satisfied that with respect to both types of touching, his actions were deliberate. There is no dispute that C was a child during the course of the relationship and I am satisfied of that matter beyond reasonable doubt. There is also no dispute, and I am satisfied beyond reasonable doubt, that the accused was an adult during the period of the relationship.

   [192] Criminal Law Consolidation Act 1935 (SA) ss 49 and 56.

9. Having considered the evidence as a whole, I find the accused guilty of maintaining an unlawful sexual relationship with C.