R v P, A - [2011] SADC 60

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v P, A
Criminal Trial by Judge Alone
[2011] SADC 60
Reasons for the Verdict of His Honour Judge Nicholson
9 May 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY
Accused charged with two counts of Indecent Assault said to have taken place during the 1980s - Accused pleaded guilty to Count 2 but not guilty to Count 1 - trial proceeded with respect to Count 1 before a Judge sitting without a jury.
Verdict: guilty of Count 2 but not guilty of Count 1
Evidence Act 1929, referred to.
HML v R; SB v R; OAC v R (2008) 235 CLR 334, considered.

R v P, A
[2011] SADC 60
Introduction

The accused was charged by Information dated 2 August 2010 with two counts of indecently assaulting the complainant (KP) who was, at all relevant times, his step-daughter. The particulars of the first count are recorded as:
[The accused] between the 1^st day of January 1984 and the 2^nd day of October 1986 at Reeves Plains, indecently assaulted KP, a person under the age of 16 years.
The particulars of the second count are recorded as:
[The accused] on the 3^rd day of October 1986 at Reeves Plains, indecently assaulted KP, a person of the age of 14 years.
By the time of trial the complainant had married and changed her name to KG. Without intending any disrespect to KG, I will continue to refer to her in these reasons as KP. The essential allegations, said to form the basis of Count 1 are that the accused entered the bedroom he shared with KP’s mother during one evening when KP was in a trundle bed in the room and rubbed KP’s vagina and inserted his finger.[1] The essential allegations said to form the basis of Count 2 are that the accused entered KP’s bedroom one night when she was in bed, put his hand under her nightie and touched her on the vagina. There is no allegation of penetration in connection with Count 2. It is also alleged that these two charged acts occurred against a background of other repeated indecent or otherwise inappropriate conduct.
[1] The charge laid was indecent assault and not unlawful sexual intercourse presumably because, given the terms of the legislation during the particularised timeframe for this allegation, the more serious charge was not apposite.
Sometime prior to the trial in this matter the accused pleaded guilty to Count 2 as charged. However, he maintained a plea of not guilty to Count 1 and, at all times, has maintained his innocence of or with respect to the allegations underpinning Count 1 and all of the allegations underpinning the alleged background of other indecent assaults or otherwise inappropriate behaviour. The trial proceeded before me, sitting as a judge alone, with respect to Count 1.
KP was born on 17 December 1971. Her mother, EFW, and her father separated shortly thereafter. KP’s mother married the accused in 1975 when KP was three. KP’s mother and the accused had a son together, WAP, born in 1976. The accused adopted KP shortly after marrying her mother. The family, being KP, her younger half brother, WAP, her mother, EFW, and the accused, moved to a house on a small rural type property at Reeves Plains sometime in or shortly after March 1983 where they all remained until at least sometime in 1990. The conduct of the accused under investigation in this trial is that said to have taken place between the 1^st day of January 1984, after the family moved to Reeves Plains and at which time KP had just turned 12, and sometime in 1990 when the complainant moved out of the Reeves Plains house and was either 18 or 19.
The Crown case, in short, is that during the period when KP was between the ages of 12 and 15 the accused committed the two offences as charged and also engaged, from time to time, in conduct of the following type:
(i)kissing KP with an open mouth and using his tongue to penetrate her mouth;
(ii)lying in bed in the mornings, whilst KP was doing her hair at the dressing table in her parent’s bedroom, and masturbating under the covers whilst pretending to sleep;
(iii)taking the opportunity on numerous occasions when KP would get into bed in the mornings for a cuddle with the accused, who always slept naked, to rub his erect penis against KP; and
(iv)masturbating outside the bathroom while taking an opportunity or opportunities to observe KP when she was showering.
As I have said, none of these acts form the basis of any charge.
Legal Considerations and General Directions
On the Director of Public Prosecutions’ application, pursuant to the relevant provisions of the Evidence Act 1929, I permitted KP and her mother to give evidence behind a one way screen. KP also had the benefit of a court companion throughout the giving of her evidence. I remind myself that I must not draw from the fact of these arrangements any inference adverse to the accused, nor am I to allow these arrangements to influence the weight, if any, that I give to the evidence of KP or her mother.
Whilst the Court of Criminal Appeal in this State has made it plain that it is not necessary for the court having conducted a trial by judge alone to set out in the reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware, I do nevertheless record that I have reminded myself of the following.
(i)The accused is presumed to be innocent of the charge unless and until guilt has been proved beyond reasonable doubt.
(ii)The prosecution bears the burden of proving the charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence charged. The accused does not carry any onus of proof and to the extent that he might put forward a defence he does not have to prove it.
(iii)By way of amplification of the above, it is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to the establishment of any element of the charge, then I must give the accused the benefit of that doubt and find him not guilty of the charge.
(iv)I have reviewed the standard directions often given in this State to juries concerning the proper approach to assessing the various witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact. I remind myself that the accused was not obliged to give evidence; he always had the right to remain silent in answer to the charge leaving it to the prosecution to satisfy me of all of the elements of the charge. However, in this case, the accused elected to give evidence on oath and to expose himself to cross-examination. Whilst I have assessed his evidence in the same way as I would assess the evidence of any other witness, I further remind myself that by going into the witness box, the accused did not assume any burden of proof.
(v)I also remind myself that it is not a question of preferring one version of events over any other. The sole task before me is to determine whether or not the prosecution has proved each element of the charge beyond reasonable doubt. If I am unable to say where the truth lies in this respect, it necessarily means that the prosecution has failed.
The accused stood trial only with respect to the one charged offence. Usually in a criminal trial evidence of other alleged crimes does not come before the finder of fact. In this case I have heard the evidence relating to Count 2 and to other alleged but uncharged acts because it may assist me to evaluate the evidence of KP; that is, hearing the whole of the allegations may enable me to make a better assessment of her evidence. The whole of the alleged course of events provides a context in which it is said that the charged incident occurred. In a sense, the more evidence that I have of the interaction between KP and the accused, the better opportunity I have to evaluate their respective evidence and to determine, to what extent, if any, I am prepared to rely upon either of them. The whole sequence of events throws light on the nature of the relationship between KP and the accused. However, I am not to make use of any evidence of an uncharged incident unless I am satisfied beyond reasonable doubt that the incident occurred.
Based on KP’s evidence and the accused’s plea of guilty to Count 2, I am satisfied beyond reasonable doubt that the accused committed an indecent assault on KP on or about 3 October 1986 by touching KP under her clothing on the outside of her vagina with his hand. I am entitled to use this finding together with such other findings that I may make, beyond reasonable doubt, concerning the uncharged allegations in determining what weight, if any, I am prepared to place on the evidence of KP. Such findings and the evidence supporting them are available as material which may assist me in concluding that the evidence of KP is reliable. Alternatively, it may assist the defence in showing inconsistency or unreliability or inherent improbability in her evidence thereby raising doubt about the charge ultimately in issue.
Ordinarily, the evidence of uncharged acts considered with that of charged acts might assist in explaining how a particular charged act came about, the way in which a complainant allegedly submitted to an accused’s alleged advances and any failure to complain at the time. These are proper uses for this evidence. Such evidence, if accepted, is also available as supporting an inference that an accused had a sexual interest in a complainant. However, in this case and in all these respects, I am mindful of the fact that Count 1, the charged offence the subject of the trial, may well have occurred at or near the beginning of the complained about course of conduct. To the extent that it predates the other alleged inappropriate behaviour, the extent to which and the purposes for which I might properly rely on any findings and evidence concerning such later conduct are significantly limited or qualified.
I also direct myself that there are certain impermissible uses of this evidence. The fact that allegations are made about other conduct on other occasions does not, in any sense, absolve me from the task of determining whether the charge itself has been made out. It would be wrong for me to adopt the course of saying that I am satisfied that some sexual activity occurred and on this basis convict the accused because of that. It is the evidence presented as proof of the charged act which is the critical evidence in the trial.
I also remind myself that the delay in this matter has resulted in a forensic disadvantage to the accused. By forensic disadvantage I mean that there will have been difficulties for the accused in challenging and responding to allegations so long in the past. For example, if there had been a prompt complaint the accused would have been in a position to remember back to the relevant time and remember what, if anything, happened and might have been in a position to be able to produce evidence discounting the evidence of the complainant.
I have taken this into account when assessing whether the prosecution has proved its case against the accused.
I turn now to the basic elements of the charged offence. An indecent assault is an assault accompanied by or committed in circumstances of indecency. The offence of indecent assault consists of two essential elements. The first is that the accused assaulted KP. An assault is the intentional and unlawful application of force or violence to another person. The second element is that the assault must be accompanied by, or occur in, circumstances of indecency. I need not further describe, in these reasons, the notion of an assault which contains its own series of elements all of which must be proved by the Crown or examine in any detail the notion of circumstances of indecency. I have reminded myself of the standard direction given to juries in this State with respect to the offence of indecent assault. The only extant issue in this trial is whether the actions complained of by KP as forming the basis of the alleged indecent assault in Count 1, were committed and, if so, by the accused. It is conceded by the defence that these actions, if proved, would comprise an indecent assault.
Ultimately, the Crown case is dependent on the acceptance beyond reasonable doubt of the complainant’s evidence concerning the allegations underpinning Count 1 and a corresponding rejection of the accused’s denials.
The Prosecution Case
Evidence of the Complainant
In the early years the family lived at Para Hills. They moved to a property at Reeves Plains when KP was about 11 or 12. The house at Reeves Plains was an older home on about 30 acres. They had sheep. After they moved there, KP and her brother were each given a pony. They also had birds and rabbits. A little later, when KP was 12 or 13, they kept Appaloosa horses and KP became involved in show riding. Initially KP was happy. She called the accused “Dad” and thought of him as that. After moving to Reeves Plains, KP still saw the accused as her Dad but things started happening and she stopped feeling as close to him.
Initially, the accused conducted a horse rug business from the back of the property. In time he moved his horse rug business to and opened a saddlery in shop premises in nearby Willaston. Sometime after October 1986, KP started working, part time, at the saddlery business in Willaston. She helped in the shop and did some bookwork. She said she worked there until she was about 19 or 20. Her mother also worked at the saddlery.
KP told the court in some detail about aspects of the relationship between the accused and her mother which KP observed and about the effect this had on her. When KP was about seven and still living at Para Hills she observed verbal abuse between the accused and her mother. She saw the accused hit her mother. They argued a lot.
Not long after the family moved to Reeves Plains, KP observed arguments and name calling between the accused and her mother. She spoke of an occasion when the accused pointed an unloaded rifle to her mother’s head in the hallway just outside their bedroom door one night after they had been arguing. The accused and KP’s mother often argued. She saw the accused throw things at her mother, slap her across the face, and pick her up and throw her against the wall. She remembered plates and glasses being thrown and smashed. This type of behaviour occurred when the accused was heavily intoxicated. As a consequence, KP was afraid of the accused for herself, her mother and her brother.
At Reeves Plains the accused started kissing KP with an open mouth. Sometimes “a little bit of tongue would be there as well”. Open mouthed kissing began early in the course of conduct complained about by KP. As children, KP and her brother were brought up to kiss their parents goodnight before they went to bed. She couldn’t say exactly how many times this open mouth kissing happened. It was regular. “If it wasn’t every night it would have been every second or third night, more so when [the accused] had been drinking alcohol”.
KP described in some detail one such kissing incident. One Christmas time KP received the present of a very fancy show bridle or halter. It had been made by the accused. KP realised that it was an expensive gift and was quite excited to receive it. The accused was sitting in the lounge chair wearing only his jocks when KP went to give him a kiss to thank him for the gift. He gave her a kiss with an open mouth. KP did not say anything to the accused or her mother about the incident because she was afraid of his reaction and she didn’t want him to be angry.
When KP started developing breasts, the accused called her Betty Big Boobs. It was a big joke in the family but not one that KP enjoyed. She was young and scared of the accused and said or did nothing about this.
Before going to high school each day KP would put her hair up at the dressing table in her parent’s bedroom. This was where her mother kept the hairdryer, the brushes and the hairspray. Usually, at this time, her mother would be up feeding animals and getting the lunches and the accused would stay in bed and sleep late. This practice began in her first year of high school when KP was around 12 years old, not long after the family moved to Reeves Plains and before the nick name Betty Big Boobs started.
KP noticed that, on many such occasions, the quilt would move up and down in the location of the accused’s genital area. KP’s mother had always been open and honest about “the birds and the bees” including masturbation. KP’s evidence was that the accused was masturbating in her presence and, at least by implication, that her presence served to arouse him. The accused did not say anything while he was doing this; he pretended that he was asleep. KP did not say anything to the accused while this was occurring.
KP also told the court that quite often in the mornings whilst she was getting ready for school, with her mother absent, she would have a cuddle in bed with the accused. On a lot of occasions the accused would pull himself towards her and KP would feel his erection on her back or her tummy if she was facing towards him. The accused never said anything but KP was convinced that he had an erection which he would rub against her; not vigorously but enough for her to feel the movement. KP did not say anything to the accused or her mother about this.
KP’s mother was never in the room when this happened, other than perhaps sometimes she would just walk in and walk out again. The cuddling and rubbing of the penis began after KP first noticed episodes involving the movement of the quilt. KP could not remember if it occurred before or after she was ridiculed for her breast development. KP was usually still in her nightie during these episodes. The accused was always naked. It was usual for him to sleep naked.
At the time when the quilt movement and penis rubbing incidents started and for some years thereafter, there was only one bathroom in the house. Everyone had to walk through the main (parent’s) bedroom to get to and from the bathroom.
KP gave evidence of other occasions of kissing with an open mouth. One such was during an evening when some family friends had come from Whyalla to stay (Mr and Mrs S and their two children). This family came to stay at Reeves Plains four or five times. One evening during one such visit KP was sleeping in a fold away trundle bed. The trundle bed was lying crossways at the foot of the bed in which her mother and the accused slept. One could walk between the trundle bed and the parent’s bed. The boy children were in her brother’s room and Mr and Mrs S and their daughter were occupying KP’s room. KP remembered that on this occasion she was asleep on the fold away bed but woke up when the accused and Mr S came home from the hotel. They had been drinking and were quite loud. They had to walk along the hallway past the bedroom door to get to the lounge room at the front of the house. KP was wearing a nightie but was fairly confident that she was not wearing any underwear. KP could not remember if she fell back to sleep before the accused entered the room to go to bed. She does not remember him getting undressed.
However, after first getting into his own bed he got out of bed and went towards KP. He wasn’t wearing any clothes and he had an erection. There were no lights on in the room but there were lace curtains on the window and KP remembers that there was moonlight coming through. The hallway light was on. Whilst KP could not remember if the door was completely closed or ajar, light could come in under the doorway. KP could see and said she recognised the accused when he walked towards and came close to her.

He didn’t say anything. He knelt down on her left hand side, she thought to give her a cuddle and a kiss. He was between the trundle bed and the parent’s bed. He knelt down, put his arm around her head and kissed her with an open mouth. He put his left hand underneath the covers. His right hand was around her head and stayed there. He put his left hand under the covers and moved it down to her vagina. He started rubbing her at first on the outside and then on the inside of her vagina. He was kissing her at the same time with his tongue while he was doing this. He was moving his fingers up and down on her vagina, moved to the opening of her vagina and put his finger in a little bit. He touched her clitoris. She did not say anything to him because she was too scared. He did not say anything to her.
This went on for at least five or ten minutes. KP squirmed and moved in the bed and pulled herself away. She wanted him to stop. The accused stopped, got up and walked back to his bed. KP also got up. She did not want to be in the same room as the accused. She went into the lounge room where her mother and Mrs. S were watching TV. KP sat next to her mother and cuddled up to her. She was crying, her mother asked her what was wrong and KP said that she had had a bad dream. Mr S had already gone to bed. KP stayed with her mother until she went to bed a little later.
This incident is the basis of Count 1. It happened after KP was given the horse called Cricket Bat. It happened after KP had started High School at Gawler High. She still had her long hair at the time of this incident. She cut her hair short in 1985, during year 9 at school. KP said she did not say anything to her mother about the incident because she was afraid another argument between the accused and her mother would occur and that he would hurt her mother.
Count 2, to which the accused pleaded guilty, relates to an incident in October 1986 in KP’s bedroom. Her brother, the accused and KP were home one evening. KP’s mother was doing a TAFE course in pattern making in Gawler. KP was asleep in her bed. She woke up to hear the accused walking up and down the hallway exclaiming loudly words she recollects being to the effect of “I would like to fuck her and I would like to lick her cunt”. KP remembered those two sentences explicitly but does not now recall whether he was saying the same thing over and over. However, he was rambling. KP remained in her bed. She knew that he had been drinking and she was scared. After he stopped walking up and down the hallway she could hear what she thought was the TV. She wasn’t sure so she got out of bed and went to the doorway of the lounge room. The lounge room concertina type door was ajar. KP opened the concertina door a little bit more to see what the accused was doing. He had an 8 mm movie projector and was watching a pornographic film on a screen. The film had sound. KP went back to bed. She remained very scared because she didn’t know whether he would do something given that her mother was not home. Later that evening, the accused did come into her room. He again came to her bed side. She was lying on her back, he put his hand under the covers and touched her on the leg and her vagina under her nightie. KP said to him “what are you doing?” whereupon the accused snatched his hand back, went to pat down the bed and said “I am doing nothing, I am just coming in to say goodnight”. He tried to pull the quilt cover back over her as if he had just come to tuck her into bed. KP said that she spoke out this time because she didn’t want such things to happen any more. After the accused left the room KP stayed awake afraid that he would come back. She eventually fell asleep after hearing her mother return home and go to bed with the accused.
The next day KP woke up angry. She walked into the parents’ bedroom where both the accused and her mother were in bed. She told both at the same time what the accused had done the previous night. Her mother jumped out of bed, there was an argument then and there between her and the accused but KP could not remember what was said. She told the court of her vague memory of women coming to speak to her after this incident. She moved out of the Reeves Plains house and she stayed with her aunty at Largs Bay for a period, she thinks about three weeks. KP then returned to live at Reeves Plains and stayed until 1990 when she was about 19 or 20. She told the court that she stayed because she was concerned for her mum and brother.
After the incident in October 1986, the basis for Count 2, the uncharged and/or inappropriate conduct by the accused in the presence of KP ceased. However, one day in 1990, KP was having a shower in the bathroom. According to KP this was before the renovation works which included the addition of a second bathroom. The shower was diagonally opposite the doorway from the parents’ bedroom into the bathroom. The shower was mounted above an old iron bath but with no shower screen or curtain. Whilst showering KP noticed that the door was ajar. She could see a shadow through the crack of the door. The shadow was moving and the complainant inferred that it was the accused. She got out of the shower, walked straight over to the door, pushed the door as hard as she could and hit the accused who was standing immediately outside with an erection. KP inferred that he had been masturbating while she was having a shower and was very angry. She swore at the accused and shouted at him that she was going to move out.
That night KP drove to a friend’s house. She never returned to live in the house at Reeves Plains. She said that she continued to work part time at the accused’s business in Willaston but not for much longer. Shortly prior to this incident the accused and KP’s mother had separated and the mother had moved out. KP had agreed to become a company secretary for the accused’s company so that she could sign documents on its behalf. According to KP she rarely saw or spoke to the accused after moving out. They saw each other at family functions such as her brother’s engagement party.
The complainant, KP, gave her evidence in a coherent and assured manner. She clearly found the exercise very upsetting, particularly, when she came to critical parts of her testimony but she steeled herself to go through with it. I have no doubt of the genuineness of her present belief that the accused acted towards her in all of the ways she has described.
Other Oral Evidence Adduced by the Prosecution
The prosecution also lead evidence from KP’s mother EFW, Dorothy Parsonage, an employee of Families SA who was involved in counselling the family after the October 1986 incident and the investigating police officer. There is no need to summarise this evidence. I will refer to it if and to the extent necessary later in these reasons.
The Accused’s Plea of Guilty to Count 2
Immediately after the incident in October 1986 the government department now known as Families SA became involved. Dorothy Parsonage, an employed social worker, interviewed KP, her mother and the accused. She prepared a written “agreement” that purported to set out arrangements reached between the parties. The copy deployed by the prosecution is unsigned. Initially I marked it for identification (MFI P6). Evidence concerning the content of this document and the circumstances of its creation was given by Ms Parsonage and the accused. Ultimately, the prosecution did not press for its tender and it is not before me. However, the accused, in his evidence, admitted that one of the conditions imposed as a requirement before KP could return to live at Reeves Plains was that the accused should take steps to address his excessive drinking. He agreed to do this and undertook some counselling with a psychologist. In his evidence the accused maintained that he had little or no recollection of the events of that October 1986 evening. However, at the time, he accepted KP as a truthful person. He was very drunk that night and he told the social worker that if KP said he touched her inappropriately then it must have happened. According to the accused, it was for this reason that he pleaded guilty to Count 2, but only to Count 2.
The Prosecution Case in Essence
The prosecution case in essence is as follows:
(i) the accused in acknowledging such a qualified guilt with respect to Count 2 has significantly understated both his sexual interest in and his sexual activity concerning KP which took place over a number of years;
(ii)the accused was a violent man, particularly when drunk and particularly towards KP’s mother, such that KP was, at least until October 1986 by which time she was 15 or so, extremely frightened of him and unwilling to confront him or tell her mother about his conduct;
(iii)from soon after moving to Reeves Plains in 1982 when KP was 12 or so and until October 1986, the accused regularly engaged in the acts of kissing, masturbating under the covers and grossly inappropriate cuddling, as already described; and
(iv)against the background of the behaviour just described, the accused committed the two indecent assaults charged, the first sometime prior to the time KP cut her hair short sometime in 1985 and the second, sometime in October 1986.
The prosecution further submitted that the course of inappropriate and unlawful behaviour that had occurred with or in the presence of KP, ceased after October 1986 because the accused had finally been confronted and caught out. However, the accused’s sexual interest in KP remained, as evidenced by the shower incident in 1990 following which KP left the house.
The Defence Case in Essence
The accused gave evidence. He admitted Count 2 and gave his explanation. He denied all other alleged wrongdoing. He admitted that he got drunk from time to time and that he and KP’s mother fought physically, often hitting each other. I do not need to summarise his evidence with the same level of detail as that given for KP’s evidence. Ultimately the question before me is whether or not I accept, beyond reasonable doubt, KP’s account of the incident said to give rise to Count 1. I accept that the indecent assault the subject of Count 2 occurred – the accused has pleaded guilty to this. I take the view that if I am to rely on any of the other alleged but uncharged unlawful acts in a reasoning process that leads to a finding of guilt with respect to Count 1, I must first find such matters proved beyond reasonable doubt.[2]
[2] HML v R; SB v R; OAC v R (2008) 235 CLR 334.
Difficulties for the prosecution case
In this context, I turn first to consider the uncharged allegations.
KP’s evidence concerning the uncharged allegations was given (and understandably so) with a high degree of generality as to when events occurred. Only one incident of kissing with an open mouth was identified as occurring at a particular time, that is, the Christmas when KP received the horse bridle as a present. Kissing of this nature was also said to have occurred as part of the allegations underlying Count 1. The shower incident in 1990 and the incident underlying Count 2 were given a relatively precise timeframe. The incident underlying Count 1 was given a particular context, that is, during one of the visits by the family S. However, the best that KP could do by way of identifying a timeframe was that it occurred some time before she cut her hair in 1985.
These specific incidents (apart from the 1990 shower incident) were set against a background of regular, almost routine uncharged conduct, as described, between 1982 and 1986.
KP said that the kissing occurred regularly – if it wasn’t every night it would be at least every second or third night, more so when the accused had been drinking alcohol. Similarly, the alleged masturbation under the quilt and the penis rubbing cuddles are said to have occurred on school mornings with great frequency. Whilst not impossible, it is surprising that over a period of more than 3 years (1982-1986) KP’s mother never observed or gained an inkling of any conduct falling within any of these three descriptions. She said she would have done something about it if she had known of it.
The accused denied masturbating under the quilt whilst observing KP doing her hair. He told the court that during the period in question he had, what he believed to be, genital herpes and would scratch his groin area from time to time. He did not see a physician; he said, because it was too embarrassing. He self medicated with creams such as Solyptol and Paraderm. He told the court that he had contracted this condition from KP’s mother. This was an inference which he drew based on his understanding about how the condition is transmitted and his assumption that she must have had an extra marital affair. KP’s mother denied ever suffering from genital herpes or being aware that the accused, during their time together, suffered from genital herpes.
I am not satisfied beyond reasonable doubt that the accused was masturbating on any such occasions that KP observed movement of the quilt. I cannot dismiss genital herpes or some other itchy and aggravating condition as at least a reasonable possibility[3] to explain some movements under the quilt that may have occurred from time to time. Furthermore and in any event, KP never saw an act of masturbation or the accused’s hand on or near his penis. She has inferred as much from her observation of movement of the quilt. The court has before it evidence given by an adult woman of her present recollection of the observations she made whilst in front of the dressing table mirror some 25 and more years ago and the inference which she, as a 12-15 year old, then drew. I have no doubt that the relationship between KP and the accused deteriorated significantly at Reeves Plains, that he behaved quite inappropriately from time to time, that KP was frightened of and anxious about the accused and that she became, certainly after 1986 if not before, deeply wary and suspicious of the accused. The accused may have masturbated under the covers on a number of occasions. However, I cannot dismiss, as a reasonable possibility on the evidence, that the inference drawn by KP here is not justified but rather the product of her imagination and her anxiety as a young teenager about the accused, combined with reconstruction and reinforcement of her beliefs about the accused over time.
[3] While acknowledging this as a possibility, I certainly have not accepted or adopted the accused’s stated assumption that he contracted any such condition from EFW or that the accused was telling the truth when he said this was his belief.
I turn to the allegations of cuddling and rubbing with an erect penis. The accused admitted that sometimes KP would get into bed in the mornings for a cuddle whilst he was naked and that sleeping naked (apart from a T-shirt sometimes in winter) was his practice. The accused told the court that he could see nothing inappropriate about cuddling his 14 or 15 year old step-daughter under the covers whilst he was naked. Sitting as the trier of fact, I record a finding that this behaviour does not accord with my sense of propriety or decency. Perhaps more relevantly, I am satisfied that this is not just a matter of my individual taste but a matter that in accordance with any reasonable standard, both contemporary and as at the 1980s, would be described as indecent. This would be all the more so if any rubbing with an erect penis occurred.
As far as these allegations are concerned, KP said that there were a lot of occasions when the accused would pull her into him and she could feel his erection on her back or her front. She said that he would rub at times for as long as 10 to15 minutes. During her evidence in chief she said that her mother would either be in the shower or in the kitchen or out feeding the animals “she would never be in the room at that stage at the same time. If she was, she would just walk through and walk out again”. However, in her initial statement given to the police in December 2005 she said that “on most occasions when this abuse occurred mum was not in the bed” and that “[the accused] rubbed his penis against me whether or not mum was also in the bed”. Later in her evidence she told the court that those things she told the police were not correct because her mother was never in the bed at the time of this abuse. On another occasion she qualified that answer and said that she did not know if her mother had ever been in the bed. I am confident that if her mother had become aware of this behaviour she would have said or done something about it and that she was not aware of this behaviour at the time. I am also confident that had this behaviour occurred in the manner described by KP whilst her mother was in the bed, her mother almost certainly would have become aware of it. Accordingly, I accept that KP has become confused with the passage of time as to whether or not her mother might have been in the bed on some of the occasions that penis rubbing occurred.
However, unlike the movement of the quilt allegations, the penis rubbing is something that KP said she directly experienced. I accept the complainant’s evidence in this respect and am satisfied that an incident of this nature did occur and on more than one occasion. Whether this occurred as frequently or for as long as KP has said (10-15 minutes) is to my mind much more doubtful.
I also accept KP’s evidence and am satisfied that inappropriate kissing, that is, with an open mouth and sometimes with the use of the tongue, as described by KP, also occurred on occasions. Like the penis rubbing, given the nature and circumstances of this activity as described, this is not something that KP would readily be mistaken about.
The defence relied upon a number of other inconsistencies in KP’s evidence or other aspects of her evidence that might cause one to doubt the reliability of the entirety of her account. In what follows I mention some examples, only, of the defence criticisms.
KP’s evidence was to the effect that prior to and after moving out of Reeves Plains in 1990 she attended Teacher’s College after which she took up employment at Spark and Cannon Pty Ltd. However, she completely overlooked, perhaps blocked out, 14 months of full time work for the accused at his business in Willaston between 5 December 1991 and 11 February 1993. Throughout this period she worked 40 or so hours per week in the accused’s business. After February 1993 she worked for some isolated periods part-time, finally leaving the accused’s employ in July of 1993.[4] There may be a quite understandable reason why KP has completely forgotten or even repressed this 14 month period of her working life. The reason may be related to the accused’s behaviour towards her either as described in her evidence or in ways additional to the matters as described by her. Nevertheless, 14 months full time work with the accused, after leaving Reeves Plains in anger following the perceived masturbation incident outside the shower, is a lengthy and significant omission in KP’s history with the accused. Her failure to recollect this some 20 years later underscores just how fragile memories of events long ago (in this case approximately 21-29 years ago) can be.
[4] See the yearly time book, exhibit D1, which was completed and signed by KP.
KP also engaged solicitors in Adelaide in August 1995 to make a formal claim for underpayment of wages against one of the accused’s companies. Proceedings in the Industrial Relations Court of South Australia were threatened. The company concerned responded to KP’s solicitors and denied the claim.[5] KP maintained that she had absolutely no recollection of making such a claim or instructing solicitors with respect to such a claim.
[5] Exhibits D4 and D5.

In her evidence in court KP maintained that she did not see the accused ejaculate at any time and that she didn’t at any time tell her mother that she had seen the accused ejaculate. However, her mother, EFW, told the court that at the time KP complained to her about the October 1986 incident she told her that the accused had once ejaculated on KP’s bed. I prefer EFW’s evidence on this topic.
As far as the allegation of masturbation outside the shower in 1990 is concerned the defence adduced evidence[6] which had a tendency to contradict KP’s account and/or timing of this allegation. I was left with a concern that, again, I could not be certain about how much of this allegation was accurate recollection and how much was unwittingly reconstructed.
[6] From the accused himself, from the step brother WAP and concerning the time when a second bathroom was constructed.
I have already set out KP’s evidence concerning Count 1, the trundle bed incident. In her police statement KP said that this incident occurred in the first half of 1987. That would have placed it well after the October 1986 (Count 2) incident and during the period when KP agreed in her evidence that no inappropriate conduct, to her knowledge, occurred. However, in her evidence in court KP maintained that this incident occurred in 1985 or prior to 1985 which would place the incident much earlier in the course of inappropriate conduct. Her evidence of the timeframe was a product of reconstruction. It was based on her recollection of when she had her long hair cut. Reconstruction of this nature is not of itself necessarily of concern. However, this particular recollection (juxtaposition of incident with long hair) only came to her shortly before the trial, that is, some 25 or so years after the alleged event. Defendants routinely identify discrepancies between evidence given in court and prior out of court statements. Often they are trivial, explainable or for other reasons carry little weight. However, in the circumstances of this case I am prepared to accord some weight, in the defence case, to this particular prior inconsistency.
It also is to be remembered that KP’s evidence was that after the assault she went into the lounge room, cuddled her mother and complained of a bad dream. This aspect of KP’s evidence was not corroborated by her mother. Of course, it is quite understandable that a mother might not recall some 25 years later a specific occasion of this relatively routine nature. KP’s evidence of complaining about a bad dream, if in fact this occurred, could not be regarded as complaint evidence – it carries with it no consistency with the alleged sexual offending. However, it does raise the possibility that KP did, in fact, have a bad dream, even one instigated by her fears and anxieties concerning the accused and his previous behaviours, perceived or in fact, towards her.
Conclusion
At the end of the trial I was left with an appreciable feeling of unease or disquiet concerning KP’s evidence. I am satisfied that the accused behaved quite inappropriately towards KP over a period of time. Count 2 has been established and uncharged acts of open mouth tongue kissing and penis rubbing have been established to my satisfaction. However, I am unable to accept beyond reasonable doubt that these uncharged acts occurred with the frequency asserted by KP.
In my view there is a real risk that KP’s memory has failed her over the intervening 25 years or so between her years in Reeves Plains and the trial. KP clearly has been traumatised and distressed as a result of conduct involving the accused during those years. She has a firm belief as to the nature and extent of that conduct. She may well be correct in her recollections. However, KP has had a very long time to dwell on the events of those years. I cannot exclude as a reasonable possibility that fear and suspicion became in KP’s mind, on occasion, reality, and that over time reconstruction has intruded. I accept as a reasonable possibility that KP has, and, if so, almost certainly unwittingly, exaggerated in material respects the nature and extent of conduct of a sexual nature between the accused and her. That process of reconstruction may have generated, in part or whole, the trundle bed allegation. I cannot dismiss the possibility that a dream or nightmare may have contributed to this process. As such, I am not satisfied beyond reasonable doubt that the trundle bed incident (the basis of Count 1) occurred.
The accused has pleaded guilty to Count 2 and in due course the allocutus will be read and a conviction recorded. However, I enter a verdict of not guilty of the charge of indecent assault in Count 1.