R v P, JJ - [2023] SADC 15

District Court of South Australia
(Criminal)
R v P, JJ
Criminal Trial by Judge Alone
[2023] SADC 15
Reasons for the Verdict of his Honour Judge Allen
17 February 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused elected for trial by judge alone on one count of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
It is alleged that between 30 January 2017 and 7 October 2018 at Port Pirie South and Risdon Park South, the accused maintained an unlawful sexual relationship with his daughter, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely: (a) exposing his penis to her on more than one occasion; (b) touching her vagina on more than one occasion; and (c) inserting his finger into her vagina.
Verdict: Not guilty.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 13BA, 13D, 34M , referred to.
Murray v The Queen (2002) 211 CLR 193, considered.

R v P, JJ
[2023] SADC 15
Criminal
Overview

P, JJ (the accused) is charged on an Information dated 4 August 2020 with the offence of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (CLCA).
It is alleged that between 30 January 2017 and 7 October 2018 at Port Pirie, the accused maintained an unlawful sexual relationship with the complainant (KLP) by engaging in two or more unlawful sexual acts with her, namely: (a) exposing his penis to her on more than one occasion; (b) touching her vagina on more than one occasion; and (c) inserting his finger into her vagina.
The accused elected for trial by judge alone. For the reasons which follow, I find the accused not guilty.
Elements of the Offence
The offence of maintaining an unlawful sexual relationship with a child has four elements:
1.   the accused knowingly maintained a relationship with the complainant during the period in which the particularised unlawful sexual acts occurred;
2.   the accused was an adult during the period in which the particularised unlawful sexual acts occurred;
3.   the complainant was a child and under 17 years of age during the period in which the particularised unlawful sexual acts occurred; and
4.   the accused intentionally committed two or more of the particularised unlawful sexual acts during the course of the relationship with the complainant.
Elements one, two and three were not in dispute at trial and are established beyond reasonable doubt. Element four was the issue at trial. As I understand the forensic contest, there were two issues as to whether the prosecution had proved the accused intentionally committed two or more of the particularised unlawful sexual acts. First, whether the prosecution have proved beyond reasonable doubt that the particularised acts occurred. Second, if the prosecution have proved the occurrence of an act, has the prosecution excluded as a reasonable possibility that the act occurred in a non-prurient context, for instance a parent attending to the hygiene needs of a young child.
Preliminary Legal Directions
Having conducted a trial by judge alone, it is unnecessary to set out the various standard directions that would be given to a jury. Nonetheless, I remind myself of the following rudimentary principles.
The standard of proof is beyond reasonable doubt. The prosecution bears the burden of proof. The accused is presumed to be innocent unless and until the evidence satisfies me that each element of the offence has been proven beyond reasonable doubt. It is not sufficient for the prosecution to show a suspicion of guilt or to demonstrate that the accused is probably guilty. The accused is not required to prove that he did not commit the offence with which he is charged.
KLP and her mother (LEP) gave evidence with special arrangements in place. I must not allow the fact of these arrangements to influence the weight that I give to their evidence. I must not draw an adverse inference against the accused as a result of the fact that these arrangements were in place.
The accused did not give evidence. His silence cannot be used against him. I must not draw any inference adverse to him from the choice not to give evidence. I must not treat his silence as an admission, nor must I use it to fill gaps in the prosecution case.
Background
KLP was born on 27 January 2012. She is the biological daughter of the accused who was in a relationship with LEP for a number of years. The relationship between the accused and LEP was described as being ‘on and off’ over a period of about five years. The accused and LEP separated when KLP was about eight months old.
The alleged offending is said to have occurred when KLP was between five and six years of age. As at the date of trial, KLP was ten years of age.
After the separation of her parents, KLP spent time living with both the accused and LEP. This arrangement changed in early 2017 when KLP went to live with the accused at a property in Port Pirie owned by the accused’s mother (LER). KLP commenced reception at Risden Park Primary School on 14 February 2017.[1] The accused and KLP moved in with a friend of the accused (GJP) at a different Port Pirie address in 2018.
[1] Exhibit P11, Agreed Fact 2.
The prosecution alleged that the accused sexually abused KLP at both properties. At the first address, the unlawful sexual acts were said to have occurred in the accused’s bedroom, KLP’s bedroom and in the shower. At the second address, the unlawful sexual acts were said to have occurred in the accused’s bedroom and in the shower. All of the unlawful sexual acts were said to have occurred when the accused and KLP were alone. There are no eyewitnesses to the allegations.
The allegations came to light in November 2018. Sarah Herbert, a social worker with Child Protection Services (CPS), met with KLP on 6 November 2018. On 8 November 2018, Sarah Herbert conducted a prescribed interview with KLP.[2] The accused was arrested on 9 September 2019.[3]
[2] T11.27-35.
[3] Agreed Fact 6.
No evidence of complaint pursuant to s 34M of the Evidence Act1929 (the EA) was adduced by the prosecution.
KLP
The prosecution case is reliant upon the evidence of KLP being accepted as both truthful and reliable beyond reasonable doubt.
The recording of the CPS interview conducted with KLP on 8 November 2018 was admitted pursuant to s 13BA of the EA.[4] I was satisfied that the statutory prerequisites for admission were met, in particular, s 13BA(3)(b) of the EA. KLP also gave sworn evidence in Court at a previous trial. An audio-visual recording of her evidence taken in the previous trial was admitted pursuant to s 13D of the EA.[5] I was satisfied that the statutory prerequisites for admission were met, in particular, s 13D(1) of the EA.
[4] Exhibit P1.
[5] Exhibit P3.
During the course of the CPS interview, KLP was initially non-responsive to questions designed to elicit evidence relating to the unlawful sexual acts. KLP made some generalised complaints about the accused which included a comment ‘he’s kind of mean because he always yells at me’.[6]
[6] Exhibit P1, MFI P1A at p 8.
The CPS interview was somewhat disjointed and difficult to follow. I have taken the entirety of the contents of the CPS interview into account. I set out below a summary of some important aspects of the interview, which I have of course considered in the context of the totality of the interview.
In discussing the first time she alleges being touched on the vagina by the accused, KLP asserted that this conduct occurred ‘kind of eight times’ and that it happened at ‘about 10 or 19 days ago’ at GJP’s house:[7]
[7] Exhibit P1, MFI P1A at p 13-15.
I said‘Hmhm. Did dad [P, JJ] tickle you anywhere else?’
She said‘Nah. Oh kind of he kind of tickles me on my penny every time. And I always go in the shower with him and I said nah I’m getting out of this shower. I was already done and said nah getting out. And I said you stay in there dad I I’m not going in that shower again with you.’
I said‘What happens in the shower?’
She said‘He always shows me his penny, his willy, and I was like oh my goodness, and I say you stay in there I’m getting out and I was washing myself and then I rinsed myself off and I said I’m going bye dad. Then I got dressed, brushed my own hair and I looked at dad with a grumpy face and I said I’m going to watch my movie now. And the movie I was watching was mermaids. One was called Lyla, one was called Nicky and one was called Serena.’
I said‘So you said dad tickles me on my penny every time so has he done that one time or more than one time?’
She said‘Um kind of ahm eight (8) times.’
…
I said‘OK. Thanks for showing me that. I just want to understand everything you tell me. So you said that dad tickles you on the penny and that’s happened eight (8) times. Is there anything more about the last time he tickled you on your penny that you can tell me?’
She said‘Ahm I don’t think I can remember anything else.’
I said‘Yeah? What about the first time he tickled you on your penny? Tell me everything about the first time he tickled you on your penny.’
She said‘Umm well um he just starts tickling my penny and then he stopped and then he got washed his hands and then I washed my hands.’
I said‘What did he tickle your penny with?’
She said‘Ahm his fingers.’
I said‘His fingers?’
She said‘And I don’t like it so I moved away and I said please stop daddy.’
I said‘Yeah.’
She said‘And then he said alright, and then I went to fall asleep then I felt him start to tickle my penny again and I said stop I do not like that. Then he started moving into his room because he’s in my room and I was in my room kind of.’
I said‘Hmm. And did anything else happen at the same time the first time he tickled your penny, do you know when that might’ve been’
She saidAhm it was ahm it was about ten or nineteen days ago I think or ahm I might get a tissue. Thank you. Well ahm what part was I up to again?’
I said‘So I’m just wondering when the first time dad tickled your penny was. Do you know what house you were in when that happened?’
She said‘Ahm it was at my friend’s, it was at dad’s ahm friend’s [GJP’s] house and’
…
In the following extract from the CPS interview, the complainant discloses that the accused ‘flicked his penny’ ‘just three times’ when she was 6 and that the incident took place at ‘GJP’s house’.[8]
[8] Ibid at pp 17, 19.
I said‘Ok. You said ahm dad showers with you and shows you his penny. Tell me more everything about where he shows you his penny in the shower.’
She said‘Well he starts flicking his penny around’
I said‘He flicks it with what?’
She said‘His penny around I don’t know what else he does’
I said‘What does he use to flick his penny?’
She said‘Ahm with his fingers and I don’t really I said I’m getting out this shower. I closed my eyes and then I turn around and gone ha like that cause I don’t really like that’
…
I said‘Yeah. So did dad flick his penny in the shower one time or more than one time?’
She said‘Ahm just three times I think’
I said‘Three times? Can you tell me everything about the first time?’
She said‘Ahmm I can’t really remember’
I said‘How old were you?’
She said‘I was, I was six’
I said‘The first time he tickled his penny in the shower you were six? And whose house were you at?’
She said‘[GJP’s]’
I said‘Where was [GJP] when you were in the shower with dad.’
She said‘Oh [GJP] was the first man I was talking about’
I said‘Yeah. Where was where was he when you were in the shower with dad?’
She said‘Ahm I was in the shower with dad he was out doing a smoke then ahm he was gonna have a shower after dad and then and then ahm I come out wearing a beautiful dress and then [GJP] said you look beautiful and dad said you look amazing but [GJP] said amazing beautiful’
…
The following passage of the CPS interview records a concession from the complainant that she did not remember the last time she saw the accused and was confused. The complainant also describes an exchange between the accused and GJP, during which GJP told the accused that he was ‘smelly’. The complainant said that this was the trigger for the accused to get in the shower with her and touch her vagina. The complainant alleged further that the accused used a cotton bud to touch her vagina.[9]
[9] Ibid at pp 22, 24-26.
I said… Was that the last time you saw dad at [GJP’s] house or was that before?’
She said‘Ahm I think before. Think it was ahm I don’t really know remember’
I said‘Don’t remember?’
She said‘Yeah I don’t really remember and I’m really confused.’
…
I saidOk. So dad [JJP] was in the shower and then he came out and then you went in the shower and then he said that he was still smelly and that [GJP] told him he was still smelly and then he came back in the shower with you.’
She said‘Yeah and then he started touching my penny and I was like nah get out.’
I said‘Yeah’
She said‘And then he got out I said why do you want me to get out? You’re touching my penny mate, I don’t like it.’
I said‘Yeah. What did he touch your penny with?’
She said‘Finger’
I said‘Anything else?’
She said‘Nup.’
I said‘Ok. And when he touched his penny he used his fingers?’
She said‘Ahm ahm he just took his cotton bud’
I said‘Cotton bud?’
She said‘Yeah. Just for not mine, just his’
I said‘What’s what’s a cotton bud?’
She said‘Ahm it’s a little fluffy ahm ball things so a cotton bud is like pretend this is a little ball thing with all white around it and it’s really fluffy’
I said‘Oh yeah just like a small one like that like a little cotton wool bud? Is that what you mean?’
She said‘Yeah’
I said‘Oh yeah so he had one of those in the shower?’
She saidNo he wasn’t doing it to me he was doing it to his self”
I said‘In the shower or outside of the shower?’
She said‘Outside. Outside in his bedroom.’
I said‘In his bedroom so you were in the shower and’
She said‘Yeah’
I said‘He was in his bedroom with a cotton bud.’
She said‘Yeah’
I said‘Was he wearing any clothes?’
She said‘Ahm ah yeah he was wearing clothes.’
I said‘But he was tickling his penny?’
She said‘Hmm’
I said‘Was he wearing any clothes on his penny?’
She said‘Aaah not really’
I said‘Yeah’
She said‘Can’t remember’
I said‘Yeah. And then did he come in the shower with you that time?’
She said‘Ahm no’
I said‘Hmhm’
She said‘Kinda it’s confusing and I don’t yeah but this is kind of like different days he’s been doing that’
I said‘Yeah?’
…
During the following portion of the CPS interview, the complainant said that the accused never touched her vagina when she was 5, before then stating that it was ‘kind of one time’. However, she ultimately said that she could not really remember. The complainant then described an incident that took place during which the accused is said to have tickled the complainant’s vagina with his fingers and thereafter with a cotton bud on top of her clothes.[10]
[10] Ibid at pp 33-35.
I said‘So did he ever touch your penny before your sixth birthday party?’
She said‘Hmm no’
I said‘He didn’t?’
She said‘He never did before my party.’
I said‘He never touched your penny when you were five (5)’
She said‘Ahm oh kind of one time’
I said‘One time when you were five (5)? Tell me everything about that time.’
She said‘Ah well I can’t really remember any stuff’
I said‘You said you were five (5) and you’re at dad’s house’
She said‘Yeah’
I said‘And which room did that happen in?’
She said‘Ahm at my ahm dad’s room’
…
I said‘You’re doing such a good job answering all my really hard questions. Thank you. Tell me everything about the first time that dad touched your penny when you were five (5). You said you were in his room’
She said‘Yeah’
I said‘Whereabouts in his room?’
She said‘Ahm well on the bed.’
I said‘On the bed? What happened before getting on the bed?’
She said‘Oops. Well before I was on the bed I went on the bed, and then, well I was walking to my dad’s room ahm then ahm then I laid down then he starts coming in and tickling my penny and then I went in my room and he followed me in there. And I said I go to Lily because he wouldn’t like Lily that day. So I went in that room and then he said what you doing out there I can’t come out there I don’t and then I knew ahm he was afraid of Lily that day. Because she kept barking at her because I told him to bark at him’
I said‘Ooh. Hmhm’
She said‘She’s my lifesaver dog. She pretty cute. And guess what she even she even does the sad face like this (whimpering sound) once.’
I said‘So you said you were laying on the bed and he came in and started tickling your penny. Can you remember if that was on top of your clothes or under your clothes that time?’
She said‘Ahm on top of my clothes’
I said‘Yeah? What did he’
She said‘I’m going to make a sausage dog’
I said‘Ahm what did he use to tickle your penny that time?’
She said‘Fingers’
I said‘Fingers’
She said‘Fingers and then a cotton bud’
I said‘And then a cotton bud. On top of your penny?’
She said‘Well ahm not on my penny on my ahm clothes’
I said‘On top of your clothes with the cotton bud’
She said‘How do you make it smooth like that?’
I said‘I know, cause I was rolling it like that. What did he do with the cotton bud?’
She said‘Ahm uses to clean my penny with it’
I said‘With the cotton bud?’
She said‘Yeah’
I said‘Hmm. Did he do anything with his penny?’
She said‘Not really’
I said‘No? He just tickled your penny with his fingers and a cotton bud.’
She said‘What?’
I said‘He just tickled your penny with his fingers and a cotton bud?’
She said‘Yeah’
…
The complainant then disclosed that one time the accused touched the inside of her vagina with his fingers at his house. She thought she was 6 when this occurred. When attempting to describe this incident, the complainant stated that she was ‘kind of really confused’ before then saying that she could not really remember what happened. She said further that her vagina was penetrated with a cotton bud and that she was wearing clothes the whole time. The interview relevantly proceeded:[11]
[11] Ibid at pp 40, 43-45.
I said‘Oh and did he touch on top of your penny or inside your penny?’
She said‘Top’
I said‘On top?’
She said‘I didn’t want him to do it inside the penny so he know I didn’t wanna do it inside the penny cause one time he did do it inside the penny and I didn’t really like it’
I said‘What did he touch the inside of your penny with?’
She said‘Hmm. Ahm yeah just his fingers and I didn’t like it and then ahm then ah I didn’t really like it so I said don’t you dare and I done a really loudly and then ahm then I stomped my feet doing this at him stomped my feet really loudly’
I said‘Hmm’
She said‘Louder than a person could’
I said‘Hmm. And was that time when he touched the inside of your penny was that at his house or at [GJP’s] house?’
She said‘His house’
I said‘His house’
She said‘He wasn’t moving that day.’
I said‘Yeah. Do you remember how old you were that time?’
She said‘Ahm ah (unknown words) ahm I think I was six (6) I think.’[12]
[12] Ibid at p 40.
…
I said‘Ok. You said that one time dad touched you on the inside of your penny and you didn’t like it and that was at dad’s house before he moved.’
She said‘Ah before he did yeah’
I said‘Yeah before he moved. Tell me everything that happened when dad touched you on the inside of your penny.’
She said‘Well ahm’
I said‘Start at the beginning so I wanna know everything that’s happened’
She said‘Well there was persons there as well but they weren’t in there that time. And that time dad start tickling my penny and I didn’t like it.’
I said‘Where were you in dad’s house?’
She said‘What?’
I said‘Want a tissue?’
She said‘yeah I need a tissue.’
I said‘Ahm where were you in dad’s house when dad was’
She said‘Ahm I was in the bedroom’
I said‘In the bedroom’
She said‘When I was in my bedroom dad came in’
I said‘You were in your bedroom and dad came in.’
She said‘Yeah’
I said‘Then what happened?’
She said‘Then ahm then he ahm he started ahm ahm kinda of really confused right now’
I said‘Yeah it’s confusing isn’t it?’
She said‘Yeah confusing. This is a really long talk that I wanted to talk about good things’
I said‘Yeah I know it’s hard to talk about the bad things. I just wanna make sure that you’re safe and that daddy that dad [JJP] doesn’t do those things to you hey’
She said‘Yeah I don’t really ahm want to go to him for half all like half of a year, like almost like, pretend it’s a year then I have half of a year.’
I said‘Hmm’
She said‘I and I have half a year here and I don’t wanna have a half of the year there’
I said‘Yeah. Yeah.’
She said‘I don’t wanna go I don’t want to have a half a year there.’
I said‘Yeah. It’s really important that I understand everything so that you’re safe. Ahm so you said on that time that he tickled you inside your penny that you were in your room and dad came in and then what happened?’
She said‘Well then ahm then I can’t really remember’
I said‘Yeah? Can you remember the time that he touched your inside your penny?’
She said‘Not really’
I said‘Not really? Can you remember what he touched the inside of your penny with?’
She said‘Cotton bud’
I said‘A cotton bud. And did you have clothes on that time?’
She said‘Ahm well yes I did.’
I said‘Yeah? And did they stay on the whole time?’
She said‘Ahm ah well ah well yeah they did.’
I said‘They they did what?’
She said‘They did stay on the whole time’
I said‘So how did dad touch you inside your penny?’
She said‘He went through my knick he went through my knickers and he touched my penny’
I said‘With his fingers or something else? Cough cough cough. Do you want a drink of water?’
She said‘With a cotton bud and hands’
…
Previous Trial[13]
[13] Exhibit P3, MFI P3A.

During the course of the complainant’s evidence in the previous trial, the complainant stated that the accused never put a cotton bud near her vagina.
The complainant also said that the accused only touched her on the vagina in the shower on three occasions and never at GJP’s property. She said she was about 4 when this happened. The last time that this happened was when she was 4 years of age. The complainant also stated that she was about 3 the last time he touched her on the vagina; potentially 2. She confirmed that she was never touched ‘in a bad way’ when she was 6 years of age.
A relevant extract of the complainant’s evidence from the previous trial is set out below:
QIn the interview you told Sarah about some things that your dad [JJP] had been doing to you. One of those things that you said was he was flicking his penny. Do you remember that.
AYes.
QCan you tell me or show me what you meant when you said he was flicking his penny.
ASo he grabbed it and he was doing this.
HIS HONOUR
QYou're shaking your right hand, is that right.
AYeah.
XN
QThank you [KLP].[14]
[14] Exhibit P3, MFI P3A at p 99.
…
XXN
QWhen you would shower at [JJP's] house in Port Pirie, often you would still be in your bathers after swimming, is that right.
AYeah.
QBecause [JJP], your dad, had a big aboveground swimming pool, didn't he.
AYeah.
QAnd is that the only reason why you would ever wear bathers in the shower.
AYeah.
QBecause you had been swimming.
AYes.
QNow [KLP], you told Sarah, when you had the long talk in Adelaide, that [JJP], your dad, touched the inside of your penny with a cotton bud; do you remember telling her that.
ANo, I remember him doing the thing but without the cotton bud.
QSo at the moment, am I right in saying that you don't remember [JJP] ever touching your penny, anywhere near your penny, with a cotton bud.
ANo, he never did that with the cotton bud.[15]
[15] Ibid at p 105.
…
QBut when you were much younger, did mum do that.
AYeah, but she doesn't do it as hard as [JJP] does.
QAnd so when you say that [JJP] did it, was that when you were much younger, say about three, that he touched you to put cream on.
AI must have been about two.
QIs that the only time that you remember [JJP] touching your penny with his fingers when he was putting cream on.
AYeah, I think that's the only time.[16]
[16] Ibid at p 106.
…
QIf that's what happened and you were drying yourself in the bathroom and he came in and then started to have his shower under the water, he wouldn't touch you then, would he.
ANo, he normally does that when I'm in the shower. He always get in and then I always say that I'm going to get out.
QBut what I'm trying to be clear on is whether you were both ever under the water at the same time. Not just in the bathroom toilet area together, but both under the water at the same time.
AYeah, that is a couple of times.
QAre you sure you're thinking of the right house. That wasn't what happened in the Adelaide house with [DMW], was it.
ANo, it wasn't in the Adelaide house. It was normally at [GJP's] that he would do that.
QSo it didn't happen when you were living with [JJP], your dad, himself at his house.
ANo, it only happened at [JJP's]. [DMW] never does it.
QJust to be clearer though. You've talked about sometimes [JJP], your dad, and you being under the water together in [GJP's] house; is that right.
AYeah.
QBut you and your dad, [JJP], weren't in the shower under the water together in your dad, [JJP's] house ever, were you.
ANo, we normally - the only time that he does it is when I was at [GJP's] and there was only three times that he did it as his house.
QAnd just to be clear. When you say 'he does it', is that he has a shower with you under the water at the same time.
AYeah.[17]
[17] Ibid at p 108.
…
QWhen you spoke about being in the shower with [JJP] together under the water at the same time, did that happen when you were much younger than -
AYes.
QCan you help us with how old you were at the time that that happened.
AAbout four.[18]
[18] Ibid at p 110.
…
Q[KLP], how old were you the last time you were under the shower with your dad, [JJP].
AAbout four.[19]
[19] Ibid.
…
QWhen you were staying at [GJP's] house and also at [JJP's] house, there was no time where [JJP] touched your penny in the bed, was there.
ANo, not at [GJP's] house, but it was normally every time at [JJP's] house.[20]
[20] Ibid at p 111.
…
QWas it just like he was tucking you into bed and saying good night.
AHe just tucks me in and then he starts to go to bed with me and then he starts tickling me and I always get up and try and go into my bed and then he says, that I have to go back into his bed and then he goes to have a smoke and then he comes back in.
QWas the tickling when you were much younger.
AYeah, I was about three or four when that happened.[21]
[21] Ibid at p 112.
…
QHow old were you the last time he tickled your penny do you think.
AI think it was about three.[22]
…
AWell, he never touched me when I was - when I'm older like I am now.
QAnd he never touched you in a bad way when you were six.
ANo, only when I was three or two.[23]
…
[22] Ibid at p 114.
[23] Ibid at p 116.
LEP
LEP gave evidence that after she separated from the accused, she lived in the Port Pirie area and Port Augusta before moving to Adelaide to commence a relationship with DMW. The accused would continue to see KLP on and off, typically every second weekend.[24]
[24] T24.16-17.
LEP had been in a relationship with DMW for approximately six years as at the time of her evidence. LEP stated that an arrangement was reached whereby KLP was to reside fulltime with the accused for 12 months, from about the start of 2017. Once this arrangement was in place, KLP saw LEP sporadically. This arrangement continued for about 18 months.
LEP confirmed that KLP would use the word ‘penny’ to describe both male and female genitalia.
LEP was cross-examined in relation to a bundle of six photographs of KLP wearing bathers at around the ages of four, five and six.[25] LEP accepted that KLP wore bathers of a style that included a top and shorts. She was also cross-examined in relation to an interview conducted with KLP for the purposes of a family assessment report required in association with Family Court proceedings. LEP confirmed that KLP was interviewed for such a report and made no disclosures of sexual abuse.[26]
[25] Exhibit D7.
[26] T44.1-11.
DMW
DMW, the partner of LEP, gave evidence generally confirming the period when KLP went to live with the accused in Port Pirie. Under cross-examination, DMW accepted that KLP would hover around the doorway to the bathroom when he was having a shower from time to time. He would be required to call out to LEP to come and close the door.[27]
[27] T52.1.
GJP
GJP was the owner of a property in Port Pirie and a friend of the accused. He was effectively the landlord of the accused in 2018 after he moved out of the premises owned by LER. GJP confirmed that the accused had his own bedroom and as at the time the accused was residing with him, KLP would only visit the property from time to time. GJP stated that KLP stayed at the address for one week during the school holidays and possibly stayed on a couple of weekends.
GJP provided a description of the property. There was only one bathroom which was directly adjacent to the living area. When KLP would sleep over, she would stay in the accused’s bedroom and the accused would sleep on the couch in the loungeroom. GJP also described owning a large and aggressive dog, ‘Karma’, that was unsuitable for children to play with.[28]
[28] T57, 63.
Under cross-examination, GJP denied telling KLP that she was wearing a pretty dress and was ‘being beautiful’. He denied that he would ever had said that KLP looked ‘amazing beautiful’. GJP denied telling the accused that he ‘stinks and needed to have a shower’. Under cross-examination, GJP stated that he would not trust his dangerous dog around children and would have prevented KLP from interacting with the dog.[29]
[29] T61-63.
LER
LER, the mother of the accused, was called by the defence. She was the owner of the first property that the accused and KLP resided in at Port Pirie. The accused moved from the property on about 20 September 2018 or 21 September 2018 after a disagreement between LER and the accused which resulted in the tenancy being terminated. LER described observing the interactions between the accused and KLP. She stated that they had a good relationship.[30]
[30] T68, 73.
Agreed Facts
The following Statement of Agreed Facts was tendered:[31]
[31] Exhibit P11.
1.   [KLP] was born on 27 January 2012.
2.   [KLP] first attended Risdon Park Primary School on 14 February 2017. She was in Reception.
3.   [KLP] last attended Risdon Park Primary School on 6 July 2018. She was in year one. She then attended Elizabeth East Primary School.
4.   On 5 July 2018, The Federal Circuit Court of Australia made orders, including that:
A.The child [KLP] born on 27 January 2012 live with the mother with effect from 5pm on the middle of Saturday of the 2018 July school holidays.
B.The said child spend time with the father as follows:
·    During the school term, for every third weekend from 5pm Friday until 5pm Sunday, noting that in the event of there being a long weekend during the school term the father may nominate that weekend as his weekend with the said child, returning the said child at 5pm Monday;
·    For half of the school term holidays, at such times as agreed between the parties and in default of agreement with the father to have the first week with his time concluding at 5pm on the middle Saturday.
5.   School holidays in 2018 were from:
A.14 April – 29 April
B.7 July – 22 July
C.29 September – 14 October
6.   The accused was arrested on 9 September 2019.
Addresses of Counsel
Prosecution Submissions
The prosecution drew attention to the fact that the complainant was very young at the time of the CPS interview and when she gave evidence at the previous trial. It was suggested this necessarily needed to be factored into an assessment of the complainant’s evidence.
The prosecution acknowledged that there were chronological difficulties with the complainant’s description of the first incident of abuse and that the complainant had said that the first time anything happened was about 10 or 19 days ago at GJP’s house. This, on the prosecution case, was clearly incorrect. The Crown case was that a number of incidents of abuse took place at an earlier time prior to the accused’s move to GJP’s home.
The prosecution also conceded that there were problems with other aspects of the complainant’s evidence in terms of when the abuse is said to have taken place. The prosecution contended that this could be explained away as a consequence of the complainant’s age and her inability to recall events and locations chronologically.
It was submitted further that the level of detail provided by the complainant as to the acts of abuse was consistent with the complainant describing events that actually occurred, as opposed to being a product of her imagination.[32] The prosecutor placed emphasis on the physical demonstration given during the course of the complainant’s evidence-in-chief from the previous trial. The prosecutor submitted that the demonstration provided by the complainant represented an instance of the accused masturbating in her presence.[33]
[32] T93.
[33] Ibid.
The prosecution suggested that apparent inconsistencies in the evidence of the complainant by stating that the accused ‘flicked his penny three times’ and stating that she was 6 and that this occurred at GJP’s house, could be explained away by the complainant’s age and difficulty with describing matters in a chronological manner. The prosecutor submitted that the evidence established there had been a number of instances of abuse that took place over at least 18 months, probably closer to two years.
Reliance was placed on the level of detail of the alleged acts of abuse. The prosecutor urged that I could be satisfied beyond reasonable doubt of the charged offence for this, and other, reasons.
The prosecutor nevertheless conceded that the complainant was unable to ‘recount a cohesive narrative’.[34]
[34] T100.24.
As to the evidence of the accused utilising a cotton bud to commit an act (or acts) of sexual abuse, the prosecution candidly accepted this as an inconsistency, given the statement given by the complainant in evidence that a cotton bud was never used, stating that ‘the passage of time between her CPS interview and evidence given at the previous trial accounted for the divergence between loss of memory as to that particular detail’.[35] The prosecution further submitted that the circumstances in which this species of touching was described meant that any innocent explanation could be dismissed and that the touching must have taken place for a prurient purpose.
[35] T105.
The central submission of the prosecution was that the evidence of the complainant was clear and consistent about the sexual abuse said to have been perpetrated against her. The prosecution submitted that the CPS interview and evidence at the previous trial was consistent with a child discussing their experiences about something that actually happened and that the complainant’s account could be accepted beyond a reasonable doubt.
Defence Submissions
Counsel for the accused submitted that there were a multitude of inconsistencies in the evidence of the complainant and that her evidence was so unreliable that it could not be accepted beyond a reasonable doubt.
Counsel highlighted the confusion inherent in the account provided by the complainant. An example of this was said to be the evidence of the complainant that ‘he never touched her in a bad way when she was 6, only when she was 3 or 2’.[36] It was submitted that the significance of this inconsistency was compounded by the complainant stating that the first time anything happened was when she was 6, ‘10-19 days ago’.[37] Aligned with this submission was the contention that if the touching took place when the complainant was 2 or 3 (as she described at one stage), there was a reasonable possibility that there was an innocent explanation for any such touching, such as for hygienic purposes.
[36] T116.
[37] T126.
Counsel pointed to evidence of the complainant that the last time she and the accused showered together was when she was about 4 years of age. This was contrary to the Crown case. The complainant was not living with the accused at that time.
It was submitted by defence counsel that the complainant’s evidence that sexual acts occurred ‘only three times …’ when they were living at GJP’s house, the last occasion being when she was 4, was an impossibility, given that the accused only moved to GJP’s house shortly before the complainant returned to live with her mother in late 2018.
Counsel also submitted that the complainant’s evidence that the accused ‘flicked his penny three times’, did not necessarily sustain a finding beyond reasonable doubt that any such act was an ‘unlawful sexual act’, provided a basis for an innocent explanation for what was being described, and that this description could never amount to proof of an act of masturbation beyond reasonable doubt.
Counsel submitted that the inconsistency between the initial description of a cotton bud being used to penetrate the complainant’s vagina, and subsequent disavowal of this, could not be explained away on account of the complainant’s age. Rather, it was argued that this was a material inconsistency and moreover, it was open to interpret the complainant’s evidence as a description of an innocent event misconstrued in hindsight.
Counsel also submitted that where there was conflict between the evidence of GJP and evidence of the complainant, I should accept the evidence of GJP.
Counsel identified a number of inconsistencies and what were submitted to be inherently unlikely scenarios arising on the evidence of the complainant. It was submitted that the unreliability of the complainant’s account was such as to preclude satisfaction beyond reasonable doubt.
Discussion
The evidence of the complainant contains a number of inconsistencies, both internally and when considered against other evidence. While it may be that some of these inconsistencies relate to matters peripheral to the particularised acts alleged by the prosecution, they cannot be swept aside or excused on account of KLP’s age; nor can it be said that they are of little moment. To the contrary, these inconsistencies are demonstrative of KLP incorporating detail into her account of relevant historical events that cannot be reconciled, either internally or with other aspects of the evidence. This has an adverse impact upon any assessment of the credibility and reliability of the primary prosecution witness.
The importance of these inconsistencies when considering whether the evidence of KLP can be accepted beyond reasonable doubt assumes further prominence when one considers her demeanour when giving this evidence. In my assessment, there was an earnestness on the part of KLP in providing aspects of her account which I find are incompatible with other evidence I have accepted.
I bear in mind that demeanour can often be an incautious guide to the credibility of a witness.
In contrast, the evidence of GJP was consistent and cogent. GJP was unshaken in cross-examination. There is nothing in GJP’s demeanour that causes me to hesitate accepting his evidence.
The prosecution relies upon an act of the accused masturbating in the shower, said to have taken place at GJP’s house. That act, on the prosecution case, is linked to a conversation the complainant states she had with GJP in the immediate aftermath of the incident regarding a dress she was wearing.[38]
[38] See Exhibit P1, MFI P1A at p 7, evidence of GJP at T61.
I cannot accept beyond reasonable doubt this act of masturbation occurred.
Whilst the evidence of the alleged conversation might be considered to be on a topic peripheral to the central allegations relied upon by the prosecution, it is instructive when assessing the credibility and reliability of the complainant’s evidence, particularly when the conversation is said by the complainant to have been proximate to the act relied upon by the prosecution.
Another example of this is that during the course of the CPS interview, the complainant describes playing with the dog of GJP, Karma, a dog that GJP would never permit to be in the vicinity of children.[39] The vicious disposition of Karma led to GJP having the dog euthanised.
[39] Exhibit P1, MFI P1A at p 37.
There is another issue that adversely impacts upon an assessment of the complainant’s evidence as it relates to allegations of sexual abuse occurring at the residence of GJP.
The predominant theme of the complainant’s allegations of sexual offending at GJP’s residence is that the offending took place in the shower.
There is only one shower at GJP’s premises. It is adjacent to the living area, with the sole door to the shower opening directly onto the living area. There were a number of people living in the house including GJP, the accused, the complainant, a woman named Carly, and her son and daughter who visited occasionally.[40]
[40] T61.
Having regard to these matters and the evidence of GJP, it is inherently unlikely that the acts of abuse alleged to have occurred in the shower at the residence of GJP occurred.

Further, I accept the submission advanced by defence counsel that the complainant’s evidence that sexual acts occurred ‘only three times …’ when they were living at GJP’s house, the last occasion being when she was 4, was an impossibility, given that the accused only moved to GJP’s house shortly before the complainant returned to live with her mother in late 2018
These issues cause me disquiet about the credibility and reliability of KLP’s account.
At the CPS interview the complainant described the accused tickling her vagina on the day that the accused was moving house. The complainant’s narrative in relation to this alleged incident is difficult to follow. The complainant was pressed for detail in relation to the incident which led to a response from the complainant saying that ‘she didn’t really remember’ and stated ‘this is hard’.[41] The narrative provided then appears to merge another occasion which happened when she was 5 years of age.
[41] Exhibit P1, MFI P1A at p 30.
Whilst the complainant is able to provide some detail in relation to this occasion, for instance that she had clothes on and that the accused had a cigarette after touching her, there are still unsatisfactory aspects to this evidence. The complainant conceded that her memory was problematic and she had difficulty articulating what is alleged to have occurred. Having regard to the previous observations I have made about problematic aspects of the complainant’s evidence, I am unable to find beyond reasonable doubt this incident occurred.
Innocent Explanation
KLP’s evidence in relation to some of the particularised conduct necessitated consideration of whether the prosecution could exclude as a reasonable possibility that the acts described were unlawful sexual acts. If the prosecution cannot prove beyond reasonable doubt that the particularised conduct relied upon amounts to an unlawful sexual act, then that particular act cannot assist in proof of the fourth element of the charged offence.
On the evidence of KLP, there are three particulars relied upon that require consideration in this regard. They are:
a) Exposing his penis to KLP on more than one occasion;
b) Touching KLP’s vagina on more than one occasion; and
c) Inserting his finger into KLP’s vagina.
During her evidence, KLP gave evidence of the accused (and LEP) applying cream to her genitals. KLP also said that the accused would touch her genitals and then clean her genitals with a cotton bud.
Further, under cross-examination at the previous trial, KLP said that the accused never touched her in a bad way when she was six years of age, only when she was two or three years of age.[42]
[42] T116.13-14.
There is also a troubling lack of detail given by KLP in relation to the allegation that the accused exposed his penis to her and, on the prosecution case, masturbated his penis. When asked about the number of times that the accused ‘flicked his penny’, that is, masturbated, her evidence was ‘just three times I think’.[43]
[43] Exhibit P1, MFI P1A at p 19.
On the evidence of the complainant, a question arises as to whether the accused ‘flicked’ (or stroked) his penis three times or whether such behaviour occurred on three occasions. In these circumstances, I am unable to find that the accused deliberately masturbated in the presence of KLP.
As to particular (a) on the Information, that is, the evidence of the complainant describing the accused ‘flicking his penny’, I am unable to accept beyond reasonable doubt any such incident occurred. Even for the sake of argument, if it were to have occurred, the prosecution has not established that any such act was an unlawful sexual act – that is, the act was performed with a prurient purpose.
On the prosecution case, particular (b) relates to an allegation that the accused touched KLP’s vagina on more than one occasion, in circumstances that amounted to an indecent assault.
Given the deficiencies in the evidence of the complainant, I am not satisfied beyond reasonable doubt that the touching of the vagina occurred as described by the complainant. In any event, there are aspects of the complainant’s evidence that, give rise to the potential for a non-prurient purpose to be attributed to any such conduct, for instance, the application of cream for hygiene purposes upon a particularly young child. I am not satisfied that any such innocent explanation has been excluded beyond reasonable doubt.
On the prosecution case, particular (c) relates to an allegation that the accused inserted his finger into KLP’s vagina.
Initially, KLP stated that the accused touched the inside of her vagina with his fingers at his house when she was 6 years of age.[44] Subsequently, KLP could not remember when this occurred.[45] Under cross-examination at the previous trial, KLP said that the accused never touched her in a bad way when she was six years of age, only when she was two or three years of age.[46]
[44] Exhibit P1, MFI P1A at p 40.
[45] Ibid at p 44.
[46] T116.13-14.
When pressed for detail in the CPS interview, KLP said that the act of penetration occurred with a cotton bud.[47] There was also evidence from KLP that this occurred ‘through her knickers’.[48] The evidence of penetration with a cotton bud stands in contrast with the evidence given by KLP at the previous trial that the accused never touched the inside of her vagina with a cotton bud.[49]
[47] Exhibit P1, MFI P1A at p 45.
[48] Ibid.
[49] T105.30-33.
This summary of the evidence of KLP in this aspect of the matter reveals a multiplicity of material inconsistencies. In my view, these are not peripheral inconsistencies to be explained or excused on account of KLP’s age. I am not satisfied that the allegation of unlawful sexual intercourse has been established beyond reasonable doubt.
Having made these observations regarding the complainant’s credibility and reliability, it is vital that demeanour and presentation not be given undue weight in an assessment of honesty and reliability. Any determination of those issues can only be made having regard to the whole of the evidence, the criticisms raised by the defence during the trial, and whether there is support for the complainant’s evidence. Although I do not have to be satisfied beyond reasonable doubt as to the reliability and credibility of every aspect of KLP’s evidence, it is trite to say that the prosecution case stands or falls on an acceptance beyond reasonable doubt of her evidence as to whether the unlawful sexual acts took place.[50]
[50] Murray v The Queen (2002) 211 CLR 193 at [57].
Conclusion
On the whole of the evidence, given the internal inconsistencies on the account given by KLP, the conflict of the evidence of KLP with the accepted evidence of GJP, the inability of the evidence to exclude as a reasonable possibility an innocent explanation for some of the particularised unlawful sexual acts and, bearing in mind the very high burden that rests on the prosecution, I am left with a doubt that the accused intentionally committed two or more unlawful sexual acts during the course of the relationship with KLP.
I find the accused not guilty.