R v P, RJ
[2024] SADC 64
•30 May 2024
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v P, RJ
Criminal Trial by Judge Alone
[2024] SADC 64
Reasons for the Verdicts of his Honour Judge Allen
30 May 2024
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 three counts of maintaining an unlawful sexual relationship with a child and one count of unlawful sexual intercourse with a person under 14 years, contrary to ss 50(1) and 49(1) respectively, of the Criminal Law Consolidation Act 1935 (SA).
It is alleged that between 7 March 2014 and 1 April 2017, the accused committed the acts against his granddaughter [M] of maintaining an unlawful sexual relationship with [M] by engaging in two or more unlawful sexual acts with [M], namely: (a) causing her to touch his penis; (b) inserting a finger into her vagina; (c) touching or licking her ear with his tongue on more than one occasion; (d) kissing her on more than one occasion.
It is alleged in the alternative that between 28 February 2017 and 1 April 2017, the accused committed the act against his granddaughter [M] of unlawful sexual intercourse by inserting a finger into her vagina.
It is further alleged that between 8 November 2015 and 1 July 2021, the accused committed the acts against his granddaughters [O] and [T] of maintaining an unlawful sexual relationship with [O] and [T] by engaging in two or more unlawful sexual acts with [O] and [T], namely: (a) touching her vagina on more than one occasion; (b) causing her to kiss him on the lips on more than one occasion; (c) touching her buttocks on more than one occasion; (d) causing her to touch his penis on more than one occasion.
Verdict: Not guilty on all counts.
Criminal Law Consolidation Act 1935 (SA) ss 49(1), 50(1); Evidence Act 1929 (SA) ss 13BA, 34CB, 34M, 34P, 34S, referred to.
R v England (2013) 116 SASR 589; R v Maiolo (No 3) [2014] SASCFC 89; R v Jones [2018] SASCFC 80; R v S, DD (2010) 109 SASR 46; R v C, CA [2013] SASCFC 137; MDM v The Queen (2020) 136 SASR 360; DES v The Queen [2020] SASCFC 32; Phillips v The Queen (2006) 225 CLR 303; R v Bonython-Wright (2013) 117 SASR 410; Sexton v The Queen [2022] SASCA 73; R v MJJ; R v CJN (2013) 117 SASR 81; Hughes v The Queen (2017) 263 CLR 338; R v Cassebohm (2011) 109 SASR 465; R v Maiolo (No 2) (2013) 117 SASR 1; R v W, PK [2016] SASCFC 5; R v R, PA [2019] SASCFC 19; Murray v The Queen (2002) 211 CLR 193, considered.
R v P, RJ
[2024] SADC 64Criminal
Overview
On an Information filed 17 October 2022, P, RJ is charged with the following offences:
Count 1:
Offence Details:
Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars
[P, RJ] between the 7th day of March 2014 and the 1st day of April 2017 at Parafield Gardens, maintained an unlawful sexual relationship with [M], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [M] namely:
(a)causing her to touch his penis;
(b)inserting a finger into her vagina;
(c)touching or licking her ear with his tongue on more than one occasion; and
(d)kissing her on more than one occasion.
...
Count 2:
Offence Details:
Unlawful Sexual Intercourse with a Person under 14 Years. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars
[P, RJ] between the 28th day of February 2017 and the 1st day of April 2017 at Parafield Gardens, had sexual intercourse with [M], a person under the age of 14 years, by inserting a finger into her vagina.
...
Count 3:
Offence Details:
Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars
[P, RJ] between the 8th day of November 2015 and the 1st day of July 2021 at Parafield Gardens, maintained an unlawful sexual relationship with [O], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [O] namely:
(a)touching her vagina on more than one occasion;
(b)causing her to kiss him on the lips on more than one occasion;
(c)touching her buttocks on more than one occasion; and
(d)causing her to touch his penis on more than one occasion.
...
Count 4:
Offence Details:
Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars
[P, RJ] between the 8th day of November 2015 and the 1st day of July 2021 at Parafield Gardens, maintained an unlawful sexual relationship with [T], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [T] namely:
(a)touching her vagina on more than one occasion;
(b)causing her to kiss him on the lips on more than one occasion;
(c)touching her buttocks on more than one occasion; and
(d)causing her to touch his penis on more than one occasion.
...
The accused elected for trial by judge alone.
Elements of the Offence
Maintaining an unlawful sexual relationship with a child (counts 1, 3 and 4)
The offence of maintaining an unlawful sexual relationship with a child has four elements:
1. the accused knowingly maintained a relationship with each complainant, [M], [O] and [T] 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. each complainant, [M], [O] and [T], was a child and under the age of 17 years 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 each complainant, [M], [O] and [T].
Elements one, two, and three were not in dispute at trial and are established beyond reasonable doubt. For each of these charges, element four was the issue at trial. The question is whether the prosecution has proven beyond reasonable doubt that the accused intentionally committed two or more of the particularised unlawful sexual acts, as to each complainant. This includes an assessment as to whether a particularised act is proved to have taken place and whether that act is attended with the requisite prurient purpose.
The elements of the offences are:
Indecent Assault
1. there must be an assault, a touching would suffice;
2. the assault must be deliberate as opposed to accidental;
3. the assault must be unlawful;
4. the assault must be indecent according to contemporary community standards;
5. the assault must be committed by the accused with a sexual purpose or intent;
6. the complainant must be under 17 years of age.
Consent is no defence to this charge; a child under 17 years is incapable in law of consenting to sexual activity.
Gross Indecency
The offence of gross indecency occurs when an accused commits an act of gross indecency in the presence of a person under 16 years. The elements of gross indecency which the prosecution must prove beyond reasonable doubt are:
1. the accused must commit an act of gross indecency - in this case the allegation that the accused caused the complainants to touch his penis and caused [O] and [T] to kiss him on the lips;
2. the act must be in the presence of a person under the age of 16 years;
3. the act must be grossly indecent according to contemporary community standards;
4. the act must be committed by the accused with a sexual purpose or intent.
Consent is no defence to this charge; a child under 16 is incapable in law of consenting to gross indecency.
Unlawful Sexual Intercourse with a person under the age of 14 years
The elements of unlawful sexual intercourse with a person under 14 years of age which the prosecution must prove beyond reasonable doubt are as follows:
1. the accused had sexual intercourse with the complainant. For the purposes of this trial sexual intercourse includes penetration of the vagina by a finger;
2. the complainant was under 14 years at the time of the intercourse.
Again, consent is no defence to this charge; a child under 14 is incapable in law of consenting to sexual activity.
Element one of this charge was the issue at trial. The question is whether the prosecution has proved beyond reasonable doubt that the accused had sexual intercourse with the complainant [M].
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 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.
The complainants, [M], [O], and [T], gave evidence with special arrangements in place. I must not allow the fact of these arrangements to influence the weight that I give to the evidence of each particular witness. 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. The accused’s silence cannot be used against him. I must not draw any adverse inference based on his 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.
Brief Background
The accused is the grandfather to each of the complainants. Generally speaking, the alleged acts of abuse are said to have occurred in his house when the children were in his care. The prosecution case is that the accused commenced offending against his granddaughters following the death of his wife on 4 January 2018.
A significant body of the evidence led by the prosecution at trial related to uncharged acts, including those alleged to have been perpetrated against the complainants [O] and [T] whilst on a family holiday in Queensland.
Summary of evidence
Examination-in-chief of complainant [M]
General background
At the time of giving evidence, [M] was 19 years of age. She was employed as a meat packer. Her mother is [JP], and her stepfather is [MP]. [M] was asked to describe her relationship with her stepfather. She described him as a good father who has always been supportive. She would call him dad. [M] has two younger sisters (who are 5 years younger than her), namely [O] and [T], who are twins. At the time of the alleged offending, [M] resided in Murray Bridge with her mother, stepfather, and sisters.
[M] gave evidence that her stepfather had a mother and father, [LP] and the accused. She recalled that [LP] passed away when she was around 10 to 11 years of age. She described having a really good and goofy relationship with her. She referred to her as grandma. She described her relationship with the accused: ‘I didn't have much of a connection or relationship. I was much closer to my grandmother than I was with him.[1]
[1] T41.29.
She gave evidence that whilst growing up she would refer to the accused as ‘Grandpa’.
[LP] and the accused resided at an address in Parafield Gardens. Before [LP] passed away, [M] would visit them throughout the school holidays. Her evidence was that they would frequently visit them in Murray Bridge. Upon [LP] passing away, [M] gave evidence that the accused continued to reside at the Parafield Gardens address. She recalled that after [LP]’s passing, she would attend this address more frequently and stay the night. This only occurred a few months after the passing of [LP]. Prior to [LP]’s passing, it would be uncommon for her to stay the night.
When staying the night, she said that there were times when her twin sisters would be with her but other times that she would be by herself. When asked where she would sleep when her sisters were not present, she gave evidence that some nights she would be in the main bedroom and other nights in the spare bedroom. She clarified that the main bedroom is the accused’s bedroom.[2] When sleeping in the main bedroom, she would sleep in the same bed with the accused. When her twin sisters stayed over, the three of them would sleep in the spare bedroom, although sometimes she would have to sleep in the main bedroom.
Touching torso
[2] T43.24.
[M] gave evidence that when she was in the main bedroom with the accused, the accused would get very close to her. She said that this would make her very uncomfortable. She was then asked whether she could remember the first time that something happened that made her uncomfortable. [M] stated the following:[3]
AI was laying there and he was putting his hands on me, my torso area underneath my shirt (INDICATES).
[3] T44.8.
[M] was asked whether the accused would say anything whilst this occurred. Her evidence was that she does not remember his exact words, but she remembers he would talk about grandma a lot. When asked whether she could remember things he would say about her grandma during this, her evidence was that he would say ‘just what she liked’ and that she liked dolphins.[4]
Black silk robe
[4] T44.23.
[M] was asked whether she remembered anything else happening in the bed. She remembered another occasion that relates to a black silk robe. She did not know how old she was when this occurred.[5] She gave evidence that there was a black silk robe on the back of the accused’s door (main bedroom). [M] said he would try and bribe her with money to wear this robe.[6] He would tell her to wear the robe and dance in the corner for him. Her evidence was the more she said no to this request, the more the accused would offer in money. In terms of how much the accused offered, [M]’s evidence was that he started with $20, and she believed he offered up around $100 before he stopped asking.[7] [M] confirmed that she did not dance in the robe despite the accused’s requests.[8] [M] said that she could only remember one occasion when the accused asked her to wear the robe. She could not recall if the accused said anything when he requested the robe be put on. She could not recall why the accused wanted her to dance in the robe.
Digital penetration – counts 1 & 2
[5] T44.32.
[6] Ibid.
[7] T45.
[8] T45.10.
[M] recalled another incident that occurred when she was 13 years of age. [M] said she asked to go to the accused’s house as she knew he would supply her with alcohol. [M] was asked how she knew that the accused would supply alcohol to her, to which she said the following:[9]
APrevious years he would give me ciders which is how I knew about cider flavours. We would drink them during dinner and he had - I am not too sure what type of alcohol it is, I think it is a type of wine because it was sitting on the wine shelf but he would pour that into a small shot glass and we would also drink that before our dinner.
[9] T49.14.
She gave evidence that at this time, she was in high school, and she said everyone thought that it was cool to drink alcohol.[10]
[10] T48.34-38.
Earlier on in the night, [M] recalled sitting in the spare room with half a bottle of cider. She remembered walking into the kitchen where the accused then entered and proceeded to pour two glasses of the apple cider. [M] said after the accused drunk his glass, he told [M] to go and wait in his bedroom as he wanted to discuss something with her.[11] [M] could not recall how much cider she had prior to going to the bedroom to wait for the accused. [M] gave evidence that she went to the room to wait for the accused. [M] said she did not know what the accused wanted to talk about. [M] gave evidence that she was scared as she knew something was going to happen.[12]
[11] T50.36.
[12] T49.7.
Her evidence was that she sat on the bed, on the side closest to the mirror, her right-hand side, laid down and waited for the accused[13]. She waited for a few minutes. [M] described how she was sitting on the bed:[14]
AI was sort of - before he had come in I was sitting on the edge but it felt like he was taking a while so I put my legs up onto the bed and I crossed them and I laid down. That's when I started to listen out for the tap so I knew when he was coming so I could sit back up.
[13] T51.9.
[14] T51.13.
[M] gave evidence that the accused entered the room and jumped on top of her and held both of her hands at the top of her head. She said her legs were trapped in between the accused’s legs.[15] [M] stated she was scared to fight back and that she froze.
[15] T49.9.
Upon the accused initially jumping on her, [M] gave evidence that he sat on her legs, and that she automatically crossed her arms across her chest.[16] She recalled feeling scared. She said at that point the accused pushed her hands above her head and held them down. She said that the accused used one hand to hold her hands above her head and the other hand he pulled her pants down.[17] [M] said that the accused then ripped her pants below her hip bone and the pants were resting on her thighs. [M] said whilst this occurred she kept wiggling.[18]
[16] T51.23.
[17] T52.
[18] T52.11.
She stated she was fairly skinny at this time and as such had a ‘thigh gap’ between her legs.
Her evidence was that the accused proceeded to put one of his fingers inside her and then removed it.[19] [M] clarified that by ‘inside’ she meant her vagina.[20] [M] described the accused’s legs as ‘propped open’ and that he was positional ‘on his knees’ whilst her legs were stuck underneath.[21] She also says her feet were crossed at this stage. [M] said her feet were crossed and her legs were straight. The accused’s legs were positioned on each respective side of her legs.
[19] T52.
[20] T52.16.
[21] T52.18.
In relation to how she felt when the accused inserted a finger inside her vagina, [M] said she experienced a burning sensation, like something was lodged in there.[22] This feeling only lasted for a couple seconds.
[22] T53.14.
[M] gave evidence that the accused then pulled on her pubic hair with his right hand and started saying racial slurs like ‘black pussies don’t belong anywhere’.[23] This was with the same hand that he used to insert his fingers into her vagina.
[23] T53.33.
Due to the pain of pulling on the hair, [M]’s evidence was that she managed to get one of her legs free and kick the accused in the shoulder/chest area. the accused then fell back onto the bed. [M] pulled her pants back up and ran into the bathroom. When in the bathroom, [M] gave evidence that she began crying.[24] She said that she was unsure of how long she was in there, but says it felt to her like hours. Her evidence was that whilst she was in the bathroom, she could hear the accused calling her, but was unsure what he was doing. When [M] came out of the bathroom, she said she walked quietly into the spare room and shut the door. She did not see the accused. [M] then fell asleep.
[24] T54.9.
[M] gave evidence that she could not remember any other conversations with the accused following this incident. She said that no other like incidents happened as she stopped visiting the accused.[25] [M] said that if her parents ever suggested she visit the accused, she would simply say no.[26] She said she would justify this by saying she needed to focus on school and work.
[25] T55.17-19.
[26] T55.27-31.
This specific incident involving [M] is subject to count 2 on the Information, namely unlawful sexual intercourse with a person under 14 years. This incident also constitutes particular (b) to count 1, the accused inserting a finger into the vagina of [M].
Further particulars of count 1
The complainant, [M], was questioned about other allegations relevant to the particulars of count 1.
Hand in pants
[M] recalled another occasion whilst in bed with the accused where she was half-asleep, and woke up with her hand in his pants, and his head close to her ear.[27] When [M] was asked to clarify what she means by ‘pants’, she said she meant boxer shorts.[28] She said her hand was resting on his genitals, specifically the top half of her thumb.[29] During her evidence, [M] indicated what part of her thumb and the following exchanged occurred:[30]
[27] T46.31.
[28] T46.36.
[29] T46.38.
[30] T47.
QAre you able to describe what part of your hand was resting on his genitals.
AOn the top half of my thumb (INDICATES).
QYou have just performed a gesture, is that right. Can you just hold it up again for the court.
ATop of my thumb (INDICATES).
QYou are holding your hand closed in a fifth so it was the top part of where your thumb was and that part was resting on his genitals, is that right.
AYes.
QIs it the case that your hand was closed like that on top of his genitals, is that what you are describing.
ASo my hand was like this and I remember waking up to his genitals being on top of my thumb (INDICATES).
WITNESS DEMONSTRATES LAST TWO KNUCKLES OF THUMB.
In relation to the accused’s position, [M] said she remembered the accused’s hand being close to her and that he was breathing on the left side of her face. She also recalled that it was her left-hand down the accused’s pants. She could not recall him saying anything during this incident. She could not remember how she acted when she realised what was happening. She does not remember her age at the time.
Tongue in ear
[M] gave evidence that the accused would occasionally try and stick his tongue in her ear.[31]
[31] T55.37.
One incident [M] described was when she was standing at the kitchen sink doing the dishes, and the accused came up from behind her, grabbed her wrist, and then stuck his tongue out and put it in her ear.[32] She could not recall if the accused said anything during this incident.
[32] T56.1-22.
[M] said she was able to remember the incident where the accused placed his tongue in her ear whilst she was in the kitchen because he successfully inserted his tongue in her ear. She said she could not recall a specific similar incident in the bedroom, but described it as being a constant thing.[33]
Watch [M] shower and torso touching (uncharged)
[33] T56.26.
[M] gave evidence that the accused would watch her shower.[34] She said during such incidents that she would be in the shower, he would open the door and stand at the doorway. [M] said she would yell at him to get out. She said he would only leave when he was ready to do so. After a few incidents, she began locking the door. In terms of the frequency of such incidents, [M] was asked how many times this occurred. Her evidence was it occurred one to three times with a duration of 30 seconds to a minute. She said the accused would not say anything, he would just watch and smile. [M] did her best to cover her body. [M] said that the accused touched her torso and neck a lot. He would use his hands to do this.
[34] T57.1.
These are uncharged acts, not forming part of the particulars relied upon by the prosecution on count 1 of the Information.
(Attempted) kissing
[M] also gave evidence that the accused would try to kiss her. [M] said the following in evidence:[35]
[35] T57.32-33.
QYou've described him putting his tongue in your ear, was there anything else that he did with his tongue or mouth.
AHe would try and kiss me. He would pucker his lips and come towards me, but I would move away from him, like grab his face and push it away.
QYou said he would try and kiss you.
AYes.
QDid he ever successfully do that.
ANo.
QWhere would this happen.
AAround the house.
[M] recalled an incident where the accused attempted to kiss her when at the kitchen sink.[36] The accused had his hands around her waist, and he puckered his lips to try and kiss her. However, she said she moved her head away and dodged his advances.
[36] T58.4.
She gave further evidence about another situation where she recalled laying in the bedroom, and the accused would lay with his arm underneath the pillow that she was on, and he would lean over to try and kiss her, but [M] would grab his face and push it away.[37]
[37] T58.
Whilst particularised in count 1 of the Information, there was no evidence given of any actual kissing taking place between the accused and [M].
Observing pornography (uncharged)
[M] gave the following evidence in response to a question as to whether anything else occurring at the accused’s house that made her uncomfortable:[38]
AI woke up to my little sister's, hearing their footsteps running up and down the hallway, it was early in the morning and I'd slept in the main bedroom whilst my little sisters had slept in the spare room and when I got up the accused wasn't in the bed, but I saw my little sister standing by the hallway door, or like the hallway doorway, and she was poking her head around the corner like she didn't want to go out there and he had been watching adult films on the TV. I had grabbed my little sister and I had walked her back into the spare bedroom.
[38] T59.
When asked what [M] meant by adult films, she said she meant pornography. There was no evidence to suggest that any of the complainants were encouraged, counselled, or procured to view pornographic material. I note that this is an uncharged act and not particularised by the prosecution.
Cross-examination
General background
In cross-examination, [M] was asked about her siblings. She said she had a sister, [K], who is 2 years her elder, as well as another older sister and two older brothers. It was put to [M] that [K] would come with her to visit the accused. [M]’s evidence was that this rarely occurred[39]. She denied that she would stay there by herself with [K].
Chores and cleaning
[39] T66.33.
It was suggested to [M] in cross-examination that one of the reasons she visited the accused was to do some cleaning and earn pocket money. [M]’s evidence was that she did not remember.[40] [M] gave evidence that she assisted with some chores, such as washing and dishes, but she could not remember receiving pocket money for it.[41] [M] said she often received money from the accused for her birthday and Christmas. It was put to [M] that she went to the accused’s house in order to earn pocket money. [M] said she could not recall.[42] It was further suggested that one of her chores was to clean the cupboards. [M]’s evidence was that she could not remember. It was further suggested that another chore was to get down on her hands and knees and scrub the floor in the kitchen. [M] said she also could not remember that happening.
Receiving money
[40] T68.9-12.
[41] T68.
[42] T68.35.
In relation to money that was gifted by the accused for Christmas and birthday events, it was further put to her that her older siblings would also receive money. [M] stated the following:[43]
AI'm not too sure about my two eldest ones [D] and [B], that is my older brother and older sister, but I am fairly sure [W] got money as well.
QAnd also [K].
AYes.
Knee condition of the accused
[43] T70.13.
[M] agreed in cross-examination that right after the death of [LP], the accused was quite overweight.[44] She also agreed that he had problems with his knee. She said she was aware that the accused had surgery to his knees, and was seeing a physio for his condition. [M] disagreed with the suggestion that because of the accused’s knee problems, he was unable to bend down.[45] [M]’s evidence was that he was able to do so. She gave evidence that she had seen him do it before, but that the accused did struggle with getting up and down. These difficulties were present on each occasion that she visited him. Later in cross-examination, the following was said about the injuries the accused had:[46]
[44] T69.5.
[45] T69.23-28.
[46] T83.11.
QYou told us as well that you knew that he would go and get physiotherapy for his knees, remember saying that.
AYes.
QNow, he couldn't kneel, could he, because of his bad knees.
AI've seen him do it a couple of times but he struggled.
QDid he struggle to get up again if he did kneel.
AYes.
QHe wasn't somebody that you would see running around, was he.
ANo.
QHe couldn't jump, could he.
ANo.
Later in cross-examination, the topic relating to the accused’s knees arose again. It was put to her that the accused could not kneel due to the poor condition of his knees. [M] gave evidence that she had seen the accused kneel a couple of times, but that he struggled to do so. He also struggled to get back up.
Layout of the accused’s house
[M] was questioned on the features of the accused’s house. She said that there was a bunkbed in the spare room. It was put to her in the following way:[47]
[47] T72.28.
QAnd a spare bedroom.
AYes.
QIn that spare bedroom there was a bunk bed, wasn't there.
AYes.
QIt was one of those sorts of bunk beds that was a double or a Queen down the bottom and a single up top.
AYes.
QSo enough room in that bedroom for you and both of your sisters [T] and [O] to sleep.
AYes.
[M] disagreed with the suggestion that it was normal when she, [T] and [O] would visit the accused, that the three of them would all sleep in the spare room. [M] explained that this would not always occur.
[M]’s evidence was that the accused would always make her sleep with him even if her sisters were there, but at times she would argue with the accused and sleep in the spare bedroom.[48]
[48] T73.7.
[M] recalled that there was a TV in the lounge room.
She also recalled the accused having a TV in his bedroom. Her evidence was that she could not remember whether the TV in the accused’s room was near the video recorder or DVD player. [M] agreed there was no DVD or video recorder in the lounge room. She recalled that there was a PlayStation in the lounge room with the TV. [M] disagreed that the PlayStation was bought for her by the accused after the death of [LP]. Her evidence was that the accused had purchased this for himself. The accused also had an iPod that was connected to a speaker and tablet with a stand. [M] said she was allowed to play on the PlayStation and would do so in the lounge room. [M]’s evidence was that the accused had mobile data which allowed for Wi-Fi in the house. This is something that [M] would connect to when she visited the accused. The following was then put to [M] about her phone usage:[49]
QAt night-time when you were playing on your phone using that data you would do that in the spare room, wouldn't you.
AOr in his room.
QYou told us when Ms Andersen was asking you some questions that you used to ask your parents to be allowed to go to the accused's house, do you remember saying that.
ANo.
QWhen you first started to go to visit your grandfather after your grandmother died, you wanted to go and visit, didn't you.
AYes.
Visiting the accused
[49] T76.3.
[M] agreed that when [LP] died, she wanted to go and visit the accused.[50] It was put to her that she would ask her parents if she could go and visit him. [M]’s evidence was that she could not remember. In relation to visiting the accused, [M] gave the following evidence:[51]
[50] T76.12.
[51] T76.19.
QNow, you have told us about something that happened when you were about 13, do you remember answering some questions about that just before.
AYes.
QOn that occasion that was an occasion where you wanted to go visit your grandpa, wasn't it.
AYes.
QThat was a visit where it was just going to be you on your own going to visit.
AYes.
QYou were not only wanting to go and visit but happy to go and visit on your own, weren't you.
AI wouldn't say I was happy. I wanted to go but I wasn't happy about it.
QWell, when you say you wanted to go, you were the one that raised this as an idea, that is with your parents, to go on that occasion, weren't you.
AI don't remember.
[M] said that she did not enjoy visiting the accused notwithstanding the fact she would make the effort to ask whether she could go to visit him.[52] She said she would feel uncomfortable visiting due to the alleged acts that were perpetrated on her. [M] rejected the suggestion that if she was truly feeling uncomfortable, she would not visit the accused, she went on to explain that she didn’t have a choice and that she was felt guilt tripped into going.[53] [M] ultimately said that whilst she felt uncomfortable, she agreed that she did not feel uncomfortable enough to the extent that she would not visit.[54]
Police statements
[52] T76-77.
[53] T78.9.
[54] T78.17-22.
Under cross-examination, [M] agreed that she understood with every statement that was signed, that it was significant that she included all the important details and that everything was accurate.[55] She also understood that this was made very clear to her by the police.
Apple cider/alcohol
[55] T84.11-18.
[M] agreed that the accused would keep apple cider in the fridge of his house.[56] It was then put to [M] that the accused would have some extra cider that he would keep in the laundry. [M] said she was unaware of this. [M] disagreed with Ms Barnes’ suggestion that she would help herself to the cider. In cross-examination, it was put to her that she was caught drinking cider and was subsequently reprimanded by the accused. [M] gave evidence that she could not recall this happening. The following was then said on this topic:[57]
QWhat I am suggesting to you is that because you thought it was cool to drink when you went to grandad's house, grandpa's house, you would help yourself to something to drink. Is that what happened.
AYes.
QAnd you would go and get a cider from the fridge and take it to the spare room to drink.
AYes on that one occasion.
[56] T85.28.
[57] T86.14.
[M] then disagreed that the accused never gave her alcohol. Her evidence was that he did. She also disagreed that the only time she had alcohol is when she went to get it herself.
[M] was asked about the time where she was at the accused’s house, and she drank what she believed was wine in shot glasses. It was put to [M] that that was something cool to do at 13, namely drinking alcohol. She said that this incident occurred before she was 13. It was then put to her that this memory with the accused was not included in her statement despite her stating earlier that she understood the importance of giving police all important details. [M] agreed that this memory was not included in any of her statements. The following passage occurred:[58]
QIs that something extra that you've just made up now.
ANo.
QThat's something that never happened, is it, that there was any alcohol in shot glasses at grandpa's house.
ANo, it did happen.
Sleeping in the accused’s bed
[58] T87.20.
[M] disagreed with the suggestion that once she reached the age of 10, she stopped sleeping in the accused’s bed. It was also put to her that when she was young and sleeping in the accused’s bed, the accused had told her that if he was too close to tell him and he would move away. [M] disagreed. [M] also disagreed that the accused had a rule which was ‘you tell me if I get too close and I’ll move away’.[59] [M] agreed that the accused would wear pyjama bottoms to bed, however she did not know whether the accused was wearing underwear underneath these bottoms.
Potential for contamination
[59] T88.24.
[M] disagreed with the suggestion that she had talked to [O] and [T] about the incidents she experienced with the accused.[60] It was put to [M] that she had talked to her mother about the incidents. [M] sad she had, but only to a certain extent. Following on from this, it was suggested that when she told her mother about the incidents, her twin sisters were present. [M] disagreed. [M] gave the following evidence in relation to discussing her grandpa’s actions with [T] and [O]:[61]
QWell, I want to read you something from your statement. In your statement you said this, [M], 'Since I found out what happened to [T] and [O] though, our relationship has gotten stronger, they have been a good emotional support'. So you'd agree with me that you do know what has happened to [T] and [O].
AI know that they were touched inappropriately. They didn't tell me themselves. My mum told me. I don't know exactly what happened to them, and we haven't openly discussed it with each other, but our relationship is still very close.
QWhat I want to suggest to you, [M], is that you have talked to both of your twin sisters about what they say grandpa did to them. Do you agree or disagree with me that you have talked to them about it.
AI disagree.
[60] T89.
[61] T89.4.
Following from this, Ms Barnes put to her that she had told her sister/s what the accused did to her. [M]’s evidence was that she had not told them. [M]’s statement was then put to her, specifically that she stated the following: ‘sometimes I want to talk to my sisters about what’s happened, but I struggle to’.[62] [M] agreed that she had put this in her statement.
[62] T91.4-7.
Throughout her evidence, [M] disagreed with the suggestions relating to her having discussed evidence with her sisters. Her evidence was that her sisters knew she was assaulted. That was because when she found out her little sisters were assaulted, she said to her mum ‘he did that to me too, that’s why I didn’t go back’.[63] [M] gave evidence that her sisters were at her mother’s house. She said that she did not know where they were in the house. It was then suggested that at least one of the younger sisters was present in the room during this conversation, to which she replied that she was unsure whether this was true.[64]
Showers and bathroom (uncharged act)
[63] T91.14.
[64] T91.32.
The layout of the accused’s house was again put to [M]. [M] gave evidence that there were two toilets and in one of those toilets, there was a shower (the bathroom). [M] disagreed with Ms Barnes’ suggestion that the only time the accused had seen her have a shower was whenever the accused was already in the bathroom first using the toilet.[65] [M] rejected the suggestion that there was never a situation where the accused stood at the door or came in whilst she was having a shower.
Suggested inconsistencies
[65] T92.10.
Ms Barnes, in cross-examination, put various suggested inconsistencies with [M]’s evidence to her in relation to count 1 on the Information. I outline below the suggested inconsistencies and [M]’s response.
1. Difference in dates
In examination-in-chief, [M] gave evidence about an incident when she was 13 years of age where she says that she asked for the accused to pick her up as she knew he would purchase her alcohol.
In cross-examination, when the same topic was revisited, [M] gave evidence that she does not remember if the accused picked her up or whether she was dropped off by her parents. The following was then put to her:[66]
QSo today you now don't remember whether he picked you up or whether you were dropped off, is that what you're saying.
AI remember being in the car with him when I asked if he could buy me the alcohol and he said yes, and from that point that's when we went to the shop. I stayed in the car but I don't have any memory of if that same drive was from Murray Bridge to Adelaide, or if I was dropped off and we later went on for a drive.
[66] T92.32.
The key feature on the cross-examination of this topic was the suggestion that this sexual incident occurred sometime after [M]’s 13th birthday. [M] agreed with this. [M] gave evidence that she is unsure of the precise date this incident occurred. It was then put to her that she had put something different in her statement, namely that this occurred at the start of 2017 around her birthday. [M] said whilst she accepted this was the date included in her statement, she did not agree with it.
2. Positioning on bed
Another inconsistency that Ms Barnes raised was in relation to [M]’s positioning on the bed. [M] said in her evidence that at the beginning of the incident of digital penetration, she went in the bedroom and sat on the edge of the bed. It was [M]’s evidence that she had her legs down over the edge of the bed, and was on the side of the bed closest to the door. However, [M] accepted that in her police statement she stated that she had sat at the head of the bed with her back against the headboard and her legs crossed on the mattress. [M]’s explanation for the inconsistency was the following:[67]
[67] T104.5.
QThat's different, isn't it, to what you have told us in court that you went and sat on the edge of the bed.
AYes, that was the first position.
QWhat was the first position.
ASitting on the edge of the bed.
QThat's not in your statement, is it.
ANo, it's not.
QIs that because that's an extra bit that you have just made up when you have been telling us about this.
ANo, it's not.
3. Positioning of legs
A further inconsistency raised by Ms Barnes was that [M] gave evidence that during this incident, the accused was sitting on her legs. [M] gave evidence that the particular position the accused was in when he touched her vagina was him leaning over her with his body touching her. Her legs were still crossed when her pants were pulled down. It was then put to her in her police statement she said that the accused managed to uncross her legs and spread them. [M] agreed that she put this in her statement but gave further evidence that she could not remember saying that.[68] She then conceded the version of events in her police statement was not what happened. [M] disagreed with Ms Barnes’ suggestion that this incident did not happen and that she was just making it up.[69]
4. The accused’s entrance to the bedroom
[68] T105.13.
[69] T105.
A further suggested inconsistency was the fact that [M] never mentioned in any of her police statements that the accused jumped on her after entering the bedroom. In her police statement she stated that when the accused came in the room, he stood at the end of the bed, leant forward, and used both hands to grab her ankles and pull her closer towards him. [M] again gave evidence that she could not remember putting this in her statement and maintained that this did not happen.[70] It was then put to her that she said in her statement that she tried to scrunch her legs up towards her chest. [M] gave evidence that she accepted that was in her statement but could not remember saying that and maintained that it did not happen.[71] Rather, she said she kept her feet crossed, and had her hands across her chest.
5. The accused pulling [M]
[70] T106.32.
[71] T107.25.
A further suggested inconsistency raised was that in [M]’s police statement, she stated that the accused kept pulling her closer towards the end of the bed, lifting her feet up towards the roof, almost up to his shoulder. [M] agreed she put this in her police statement, but disagreed that this happened.[72] [M]’s evidence appeared to give no explanation as to why her evidence differs from that of what is stated in her police statement.
6. The accused pulling [M] (No 2)
[72] T107.25.
Another suggested inconsistency raised was that in [M]’s police statement, she stated that the accused stood at the end of the bed and leaned forward, using both hands, he grabbed her ankles and pulled her closer towards him. [M] agreed this was in her statement. [M] was then asked whether this didn’t happen. Her evidence was ‘I don’t remember saying that to the police’.[73] [M] did not give any reason as to why her police statement was not the correct version of events.
7. Positioning of [M]’s legs
[73] T107.36.
Another suggested inconsistency raised was that in [M]’s police statement, she stated she tried to scrunch her legs up towards her chest and that she was confused as to what was going on.[74] She agreed this is what she said in her police statement but disagreed this occurred and does not remember saying this to police. [M] did not give any reason as to why her police statement was not the correct version of events.
8. Clothing
[74] T108.
Under cross-examination [M] gave evidence that the accused had his knees on the side of each of her legs. She said that she was wearing swim shorts at the time of this incident.[75] However, it was put to her that in her statement to police, she described what she was wearing as ‘pants’. When providing an explanation for the inconsistency, the following exchange occurred:[76]
[75] T98.20.
[76] T98.26.
QWhat did you mean when you used that description 'pants' to the police.
AThat was just my terminology but I was wearing shorts for that incident.
QYou had underwear on as well.
AYes.
QYou said that the use of that word 'pants' was your terminology, do you agree with me that you didn't tell the police that they were actually shorts.
AYes, I could have made that clear but I didn't.
QIs that because this never happened and you're not sure what you were wearing at all because it's made up.
ANo, I know what happened, I know what I was wearing.
Following that passage, [M] was asked whether she was trying to suggest that the accused was able to take her shorts and underwear off whilst her legs were crossed.[77]
[77] T99.1.
[M] gave evidence that she never said that he removed them and they were just resting on her thighs, which left him enough room to slip his hand in between.[78]
Black silk robe
[78] T99.4.
In cross-examination, Ms Barnes revisited the topic of the black silk robe. [M] agreed that she would wear this robe sometimes. She also agreed that these gowns might have been considered as warm dressing gowns.[79]
[79] T109.36.
[M] agreed in evidence that whenever she had visited the accused, she could borrow any of the gowns, namely the warmer ones or the black silk one. She also agreed that her sisters could borrow it too. It was then put to her that the black robe that she mentioned in her evidence was actually her older sister [K]’s robe. [M] disagreed with this suggestion.[80] It was put to her that it was a robe that was purchased from Kmart by [K] when she went to visit the accused on one occasion. [M] said that she was not aware of this.[81] [M] gave evidence that she had never seen [K] wear this robe.
[80] T110.16.
[81] T110.19.
[M] was shown Exhibit D3, the photograph of [K] wearing a robe at the accused’s house.[82] [M] gave evidence that this was the first time she had seen this photograph. She repeated that she had never seen [K] wear that robe.
[82] T110.37.
The following was then put to her:[83]
QWell, that's not right, is it, because you have seen her wear it, haven't you.
AJust now, yes.
QNo, but in person you've seen her wear it.
ANot that I remember.
[83] T111.1.
Exhibit D4 was then shown to [M] which depicted [K] cleaning cupboards at the accused’s house whilst [M] was playing the PlayStation in the background. The photo was taken in the lounge room of the accused’s house. It was then put to [M] whether this photograph assists in her memory of [K] wearing a robe. [M] gave evidence to the contrary and said that she still was unable to remember.[84] [M] was unable to say how old she was in the photo in Exhibit D4. [M] disagreed with Ms Barnes’ suggestion that the accused never asked [M] to wear the robe and dance for him. [M] disagreed with Ms Barnes’ suggestion that the accused never tried to give her money to wear the robe.[85] It was also put to her that the accused never made her wear the robe to bed. [M] explained that he tried, but she did not acquiesce.[86]
Tongue in ear
[84] T111.24.
[85] T111.37.
[86] T112.3.
Ms Barnes revisited the topic of the accused sticking his tongue in [M]’s ear. This is the behaviour that amounts to particular (c) under count 1 of the Information.
[M] agreed in evidence that she had heard the words, or term, ‘wet willy’.[87] [M] agreed that she understood this to mean when you put your tongue in someone’s ear as a joke. She agreed this is what the accused used to call it. The following was then put to her about the accused’s behaviour in terms of sticking his tongue into her ear:[88]
QYou said yesterday that when grandpa tried to put his tongue in your ear he would make it a joke, is that right.
AYes.
QIt was a joke, wasn't it.
ANot for me.
QThat was something that grandad used to do and laugh when he was doing it, wasn't it.
AYes.
Hand resting on genitals
[87] T112.5.
[88] T112.13.
Ms Barnes moved to the topic of [M] waking up and realising that her hand was down the accused’s pyjama shorts. This relates to particular (a) of count 1 of the Information.
[M] was reminded that earlier on in her evidence she told the Court that when she woke up, her hand was in a fist. [M] agreed that this was her evidence. [M] then gave evidence that the accused’s genitals were on top of her hand. It was then put to [M] that she said earlier in her evidence that her hand was resting on the accused’s genitals. [M] gave evidence explaining this inconsistency by saying that she didn’t mean on top of the accused’s genitals and meant they were resting with it and his genitals were touching her.[89] She did not mean resting on top. She then gave evidence that the accused’s penis was on top of her thumb. She also added that her hand was below his testicles. She could not remember how her hand came to be in that position.[90]
Pornography
[89] T113.16.
[90] T114.12.
[M] was reminded about the time when she thought she saw the accused watching pornography, and that her sister [T] was hiding behind a hallway door looking into the lounge room. This alleged incident does not constitute any charged act on the Information.
[M] was asked how she knew porn was on the TV. [M] said that she saw a nude woman on the screen,[91] she also said that she had seen pornography before. It was then put to [M] that from her position she could not actually see what was on the tv. Her evidence was that she could. [M] agreed that [T] was hiding behind the door and that the accused could not see her. It was ultimately suggested to her that what was on the tv was a normal movie and was not of a pornographic nature. [M] gave evidence that it was, and said that it was in black and white, and featured a nude woman on the screen. It was put to [M] whether she agreed that it could have been a normal movie. [M] could neither agree nor disagree.
[91] T114.23.
Re-examination
Sleeping with the accused
In re-examination, [M] was queried as to how the accused would make her sleep in his room. [M] gave evidence that he would try and persuade her. [M] could not recall what he would say during these attempts to persuade her. She also could not recall what she would say when she argued with him.[92]
Cider incident
[92] T116.28.
When [M] gave evidence that she would help herself to the cider, she explained that she was referring to the incident when she was 13 years old. She confirmed this occurred after having the conversation with the accused about buying her alcohol.[93]
Digital penetration
[93] T117.7.
In re-examination, [M] was asked whether she remembered when Ms Barnes questioned her about the incident where she gave evidence that she was wearing pants in her police statement and did not tell the police they were actually shorts. It was then asked whether the police asked any question to clarify what kind of pants she was describing. [M]’s evidence was ‘no’.[94]
Knowledge of twin’s situation
[94] T118.4.
It was confirmed in re-examination that [M]’s mother was the one who told her what had happened to her sisters. It was further confirmed that [M] was aware that her sisters had been touched inappropriately by the accused, however that was the extent of her understanding.[95]
The accused jumping on [M]
[95] T119.
Further re-examination was conducted by Ms Andersen to clarify what [M] meant by the accused ‘jumping’ on her. [M] gave the following evidence:[96]
QWhat were you trying to describe by using the word 'jumped'.
AThat he had got on top of me, he had gotten - he'd gotten over my legs. I don't remember jumped, leapt, how he got there but I just remember that moment I froze with (DEMONSTRATES) my arms on my chest.
QSo you were using the word 'jumped' to describe him becoming on top of you, is that right.
AYes.
[96] T119.25.
Examination-in-chief of complainant [O]
[O] is the second complainant in this matter. Her allegations give rise to count 3 of the Information, namely maintaining an unlawful sexual relationship with a child.
Police record of interview
[O] participated in a record of interview with Senior Constable Cooper on 4 November 2021. This interview was played in Court and tendered as Exhibit P5. The interview was admitted pursuant to s 13BA of the Evidence Act (EA). The statutory prerequisites for admission of the interview were met, in particular, s 13BA(3)(b) of the EA.
At the time of the interview, [O], who was born on 9 November 2009, was 11 years of age. I note that in various times of [O]’s record of interview, there is repeated reference to ‘us’ or ‘them’, presumably referring to her and her sister [T]. When [O] was asked what she had come to talk to the police about, she stated she was there to talk about her grandfather always touching her and her sisters and how he would frequently wake them up at 2 in the morning and start touching them. There is no definitive age as to when this alleged offending occurred, but based on the interview, it is possible that she was aged 5, 6 or 7 years of age.[97] Frequently, it is not clear from the interview whether what was being described related to charged or uncharged acts, or both.
Townsville incident (uncharged)
[97] MFI P5A pp 29, 31.
A particular incident [O] recalled is when she was in Townsville. This incident that [O] recalls is an uncharged act, and does not relate to any of the charged offending on the Information. The uncharged offending seems to be the focus of the interview.
It is common ground that the accused, his son [MP], and the complainants [O] and [T], took a caravanning holiday to Queensland in 2021. The prescribed interviews of [O] and [T] disclosed various events of discreditable conduct during the course of this trip.
The common, undisputed evidence of the caravanning trip was that [O], [T], their father, [MP], and the accused, took a family holiday to Queensland together in 2021. The family lived with each other in the relatively close confines of a caravan.
Whilst on the trip, [O] described the accused starting to lick his fingers and touch her ‘vagina and stuff’.[98] She said he was rubbing with his fingers. Beyond describing the rubbing sensation, [O] was only able to say that he continued to touch ‘it’. She said that whilst this was occurring, the accused would lay on his back, lick his fingers repeatedly and stare at the roof.[99] [O] was just standing there and trying to move away and pull her pants up. [O] stated in the interview that [T] and her dad were sleeping on the other side of the caravan.[100] [O] was originally sleeping, and the accused had woken her up and turned her on her back as she was laying on her side. She stated that her clothes were put down to her ankle. She believed this lasted for ‘like 5 minutes or something’. She said the accused throughout this incident audibly asked her if she wanted him to stop.
[98] Ibid at p 13.
[99] Ibid at p 14.
[100] Ibid.
In response, [O] said ‘yes’, and then the accused asked her if she was scared and she said ‘yes’. The accused then told [O] he would not do it again. After the accused said this, [O] said that he just went back to sleep. [O] then pulled up her pants and went back to sleep. [O] recalled that she was wearing pyjamas but does not remember which ones she was wearing. When asked if anything happened in the morning, she said that she slept in a little longer and that the accused woke her up and breakfast was ready.[101] When asked whether she told anyone about this, she said only her sister [T].
Charged offending
Sleeping with the accused at home
[101] Ibid.
[O] stated that she and [T] would sleep in the accused’s bed because they were scared of the dark when they were younger. She stated that she would sleep on one side and [T] would sleep on the other side. The accused would be in the middle. [O] stated in her interview that the accused would shove one of his hands down her undies and his other hand down the undies of [T]. This occurred under the clothing. Whilst under the clothing, she said he was rubbing.[102] [O] believed she was probably 5 or 6 years old at the time.
[102] Ibid at p 30-31.
During this incident, [O] stated that the accused would make both of their legs go over his legs and that she could feel his penis. She said that this happened on more than one occasion.
Kissing the accused
[O] stated that every kiss they would give the accused, they would get money. It would seem that this allegation related to a group kiss on Christmas morning, in the presence of their parents when the group split $160 between them. [O] described it as being a kiss on the lips.
She also recalled when going to his house, the accused would make them sit on his lap and have his hand on their butt, underwear, and start kissing them.[103] [T] would sit on his lap first, and then [O] would get on his lap.[104] She said he would also rub her legs and bum. The kissing in these cases would also occur on the lips. She described it as a bunch of kisses. This made her feel uncomfortable and awkward. The rubbing of her bum occurred over the clothing. She could only remember this happening once.
[103] Ibid.
[104] Ibid.
It is this conduct that gives rise to particulars (b) and (c) as in Count 3.
Swimming in Cairns (uncharged)
Whilst in Cairns, there was a swimming pool that the accused would let them swim in. [O] stated that whilst in the swimming pool, the accused would grab ‘them’.[105] He would hold her by the waist which made her feel uncomfortable. [T] and her father were present during such incidents, but her father was outside of the pool. [O] stated that the accused would do this when her father was not paying attention.[106] [O] stated that they would sit on the little bench in the corner and then the accused would grab her and [T] by their waist. The accused would then suggest that both [T] and [O] should dive under his legs.[107] She then recalled that he would try to do that and then he used to pull them up so they could touch his dick.[108] [O] was asked how many times this happened. She stated that they used to go to the pool every day when they were in Cairns. [O] was asked to provide further information as to what would happen when they would dive between the accused’s legs. She said that the accused would push both [T] and her bum together and ‘touch their arses’. In terms of which body part would touch the accused’s dick, [O] said her back and arses.[109] After coming out of the water, she stated that the accused would grab them and put his hands underneath her vagina and just hold them there. [O] said they would try to swim away.
Incident in unknown town (uncharged)
[105] Ibid at p 19.
[106] Ibid at p 18.
[107] Ibid at p 19.
[108] Ibid.
[109] Ibid.
[O] recalled another incident with the accused but could not recall the particular town of where this occurred.[110] This occurred on the first night of the trip and [O] and [T] wanted to sleep with their dad because they did not want to be touched. [O] ended up having to sleep with the accused. Whilst in bed, [O] said that the accused started putting his hand down her pants. She said this occurred under the clothing. His hand remained there for the whole night. She said this occurred on the very first night of her holiday. She said this was a little town and could not recall whether it was in South Australia or Queensland. She said this made her feel very uncomfortable.
Evidence in court
[110] Ibid at p 21.
At the time of giving evidence in Court, [O] was 13 years of age. She was in year 8 at school. [O] gave evidence that her mother is [JP] and that her father is [MP]. Her evidence was that she has a twin sister whose name is [T]. She has other brothers and sisters whose names are [B], [W], [D], [M], [K], [C], [J] and [Z]. All of these siblings are older than [O]. [O] was able to recall her paternal grandparents’ names, and identified them as [LP] and the accused.
Toilet incident in Queensland (uncharged)
The toilet incident that [O] had previously mentioned in her police interview was put to her. [O] remembered that the accused took a photo of her on the toilet and that she told police as such. The following passage transpired in evidence:[111]
[111] T129.7.
QYou told the police officer that before this happened that something was being unzipped.
AYeah, coz on the toilet there's like a little zip thing that leads into the cavity.
QSo the toilet was like there was an attachment to the caravan, is that what you are saying.
AYes.
QCan you describe what that attachment part looked like.
AIt was just like grey and it was just unzipped.
QThere was a toilet inside this structure, is that right.
AYep.
QYou said that was unzipped. Who unzipped that.
AIt was already unzipped.
QThere was a photo that was taken of you on the toilet, is that right.
AYep.
QWho took that photo.
AThe accused.
Upon the photo being taken, [O] gave evidence that this photo was then showed to her by the accused. As the accused showed her this photo, she said he had zoomed in on her private parts. When further clarification was sought by what she meant by private parts, [O] clarified that she meant her vagina. [O] recalls that the accused did not say anything throughout this incident. [O] was then asked whether the accused showed the photo to anyone else. [O] gave evidence that he showed the photo to her father but only zoomed up on her face and not her vagina.
Incidents at the accused’s house (charged offending)
[O] was reminded in evidence that she told the police officer that something had happened in bed with the accused at his house. [O] agreed in evidence that she told the police officer that the accused put his hands down her and [T]’s clothing, and started rubbing her stuff.[112] When further clarification was sought about what she meant with the word ‘stuff’, [O] gave evidence that she meant her vagina and arse. When asked how often this would occur, [O]’s evidence was that this would mainly occur every night that they would sleep with him.
[112] T130.
Cross-examination
Visiting the accused’s house
Ms Barnes, in cross-examination, began with the topic of visiting the accused at his house. [O] agreed that the accused would come to pick up [O] from Murray Bridge from time to time. [O] also agreed there were times that her older sister, [K] was there. She also agreed that all four sisters would be there as well.[113] It was put to [O] that when she would go to visit the accused in Adelaide, he would take her out to the shops and buy her things. [O] said she could not remember. For example, she could not remember going to K-Mart and having clothes bought for her. It was put to [O] that when she would visit the accused, he would take her out for junk food or to a restaurant. [O] said that this would sometimes occur.
[113] T133.
[O] agreed that uncle [A] lived next door to the accused. She also agreed that she could basically go over to uncle [A]’s whenever she wanted whilst at the accused’s house.[114] It was then put to her that uncle [A] used to come over to the accused’s house all the time whilst she was there. She agreed with this. Whilst uncle [A] came over, he would watch TV with [O]. [O] agreed that this would occur during the day, but she could not remember if it was the same at night-time. The layout of the accused’s home was then introduced. The following passage occurred in cross-examination:[115]
QGrandpa's house had two bedrooms and then another room that was an office, didn't it.
AYep.
QOne of those bedrooms had bunk beds in it, is that right.
AYeah.
QThat room with the bunk beds in, is that the room that you would sleep in when you visited with your sisters.
AYeah.
[114] T134.7.
[115] T134.29.
Further, in cross-examination, [O] confirmed in evidence that when all four sisters had slept at the accused’s house ([O], [T], [K] and [M]), they would all sleep in the spare room together.[116] [O] agreed this was the same arrangement if it was only [O], [T] and [M] staying. However, when it was just [O] and [T] staying they would not sleep in the spare room.
Collusion
[116] T135.3-5.
Ms Barnes reminded [O] that in her police interview, she said that she was in the room when [M] talked to her mother about what had happened to her with the accused. [O] was asked to identify which room that she was in whilst she heard this conversation. Her evidence was that it was her mum and dad’s room. When asked who was present in the room, [O] said in evidence that it was her father and [T]. [O] said she did hear [M] talk about her experience with being touched by the accused. She was asked what she heard [M] talk about. She gave the following evidence:[117]
[117] T139.16.
QWhat did you hear [M] talk about.
AI just heard her say that 'He did it to me too'.
QWhat did you understand her to mean when she said 'He did it to me too'. Did you understand what she was saying.
AYeah.
HIS HONOUR
QWhat did you think that meant.
AThat he was touching her too.
[O] confirmed in evidence that this conversation that her mother had with [M] occurred after she had told her the accused was touching her inappropriately.[118]
[118] T139.
[O] said that [M] had never spoken to her about the accused’s inappropriate touching. [O] was asked whether [M] talked to her before the above passage about inappropriate touching. She said no.
[O] was reminded that in her police interview, she told the interviewer that the accused used to touch her older sister [M] and she thought if she would let him do it to her, he would not do it to them.
[O] said that the only time she heard [M] discuss the accused touching her was when she overheard the conversation between [M] and her mother; [O] said she was not aware that [M] had been touched prior to staying at the accused’s house. The following proposition was then put to [O]:[119]
QI am going to suggest something to you and you can agree or disagree with me but what I am going to suggest to you, [O], is that you had been told by [M] some time before you told your mum about it that she had been touched inappropriately by grandpa. Is that right, that she told you before that day.
ACan't remember.
Kissing
[119] T140.23.
The topic of kissing was revisited in cross-examination. [O] agreed that the accused would give a kiss to all of the family. She agreed that he would give a hello and goodbye kiss. [O] agreed that the accused would also kiss her when other people in the family were present.[120]
Toilet incident in Queensland (uncharged)
[120] T140.
The incident in relation to the photograph of [O] in the toilet was revisited. [O] agreed that the toilet was actually inside the caravan. [O] agreed that the ‘zip’ she had mentioned could be described in the following way:[121]
QAnd when you talk about something being unzipped, was that sort of like a bit of canvas so that if somebody was having a shower it might be zipped up so you couldn't see inside.
AYeah.
[121] T141.5.
[O] agreed that the accused showed the photograph of her on the toilet to her father. She also agreed that she and her father began laughing. However, she said that she did not actually find it funny. [O] agreed that the photo depicted her face with an expression of a bit of shock or surprise on her face.
A booklet of photographs from their holiday was then shown to [O]. [O] agreed that this was a booklet that she had seen before. This was Exhibit D6. [O] agreed that the said photograph of her in the toilet was in that booklet. She agreed that her mother and father had seen this booklet. When shown the photograph of her on the toilet, it was put to her that her vagina was not visible in it. Her evidence was that the image had been cropped.[122] It was put to her that the image never displayed her vagina. [O] gave evidence that the accused was zooming in to see if he could see her vagina. [O] agreed that the accused took the photograph when holding his phone over the top of the zip toilet. [O] agreed that the accused was not inside the zip toilet. [O] disagreed however that the photo was immediately shown to her father. The following evidence transpired in relation to the visibility of [O]’s vagina in the photo:[123]
[122] T144.20.
[123] T145.6.
QWhen dad was shown the photograph, it was still the photograph on the phone, wasn't it.
AYeah.
QNot a cropped version shown to dad.
ANo.
QAnd you couldn't see your vagina in the photograph, could you.
ANo.
QYou couldn't see your bottom in the photograph, could you.
AYou could but just where he's cropped.
QWell, you were sitting on the toilet when the photograph was taken, weren't you.
AYeah.
QSitting on your bottom.
AYeah.
QSo you couldn't see your bottom in the photograph, could you, because you were sitting on it.
AYou could see my legs and - yeah.
Inappropriate touching
[O] disagreed with Ms Barnes that it was never the case that the accused touched her inappropriately.[124] [O] further disagreed in evidence that the accused never touched her inappropriately when he was in the bed with her.[125]
[124] T146
[125] T146.
It was put to her that there was never a time at the accused’s house that he touched her vagina. Her evidence was that there was. The topic of invention/imagination arose, and the following was said:[126]
QHave you got confused about what you heard from either [M] or [T] about what grandpa - what they say grandpa did to them.
ACan't remember.
QAnd has what they've said made you think that something might have happened to you.
ANo.
[126] T146.26.
[O] agreed with Ms Barnes that the inappropriate touching at the accused’s house is something that was talked about with [T] on more than one occasion. [O] rejected the suggestion that she was merely repeating a story to the Court that [T] had told her. Her evidence was no. It was again put to her that nothing happened to her at all. She rejected this suggestion.
Examination-in-chief of complainant [T]
[T] is the third complainant in this matter. Her allegations are subject to count 4 of the Information, namely maintaining an unlawful sexual relationship with a child.
Police record of interview
[T] participated in a record of interview with Senior Constable Cooper on 4 November 2021. At the time of this interview, [T] was 11 years of age. This interview was viewed in Court and tendered as Exhibit P7. The statutory prerequisites for admission of the interview were met, in particular, s 13BA(3)(b) of the EA.
Cairns trip (uncharged)
[T] said the last time the accused touched her inappropriately was when they were on holiday in Cairns.[127] During this holiday, they stayed in a caravan where the accused would sleep on one side of the caravan and her father would sleep on the other side. [O] and [T] would take turns as to who would sleep with the accused.[128] She recalled that [O] slept with the accused the first night of the holiday. However, [T] recalled that no inappropriate touching occurred on the second night and she could not remember much. She remembered that he was rubbing her stomach on this night, under her clothing. She said on the second night he was rubbing her stomach and then began touching her inappropriately. When asked what she meant, she said her ‘private part’.[129] [T] said that her private part is her vagina. She said he would lick his fingers and rub it. She said this occurred under the clothing. When asked what she was wearing to bed, she said she was wearing shorts and a t-shirt, as well as knickers.
[127] MFI P7A p 4.
[128] Ibid at p 5.
[129] Ibid at p 6.
[T] said after the accused started to touch her vagina, the accused would put his hands under her shorts and undies, and then he would start to lift her top and rub her stomach.[130]
[130] Ibid at p 7.
[T] recalled that, at the time of this touching in the caravan, the accused was talking about whether she was enjoying the holiday and what should they do. [T] recalled that the accused was just touching her with one hand. When asked what the accused was wearing, she said he was wearing ‘silk short thingys’.[131]
[131] Ibid at p 8.
She said [O] and her father were also in the caravan, but they were sleeping. She did not know how long this incident lasted for. She said it felt like a long time. [T] said she was unsure how long this incident lasted. [T] said she fell asleep prior to the accused, but believed the incident stopped because he fell asleep.[132] She said that prior to the accused falling asleep, he was rubbing up and down on her private part and only used his hand to do so. She said she felt two fingers.
[132] Ibid at p 9.
[T] said the following morning felt normal and that the accused did not discuss the incident. [T] said the accused would repeat this behaviour on the other nights of the holiday. She was not able to provide any further details about other similar incidents.
When Senior Constable Cooper asked [T] whether anything happened prior to being touched when she was asleep, [T] responded, ‘not that I know of’.[133]
Recollection of last incident (on holiday)
[133] Ibid at p 10.
Further in [T]’s record of interview, she described the last incident that she can recall. [T] was unable to recall where or when this occurred. This final incident relates to an uncharged act.
When asked what she remembered from the last time the accused touched her, she said she could not really remember, and then later stated that she ‘kinda’ remembers the accused pushing her hand down his pants.[134] She said that the accused told her to rub his stomach, and then he said that she should go down his pants. When she failed to do so, he pushed her hand down his pants. She said he made her hand touch his private part. She said that the accused said that was an accident and that people do that all the time. When asked what she meant by private part, she said ‘his nuts’.[135] [T] recalled this occurred under the clothing. [T] remembered the accused would pull her hand down to force her hand to his private parts. [T] said that the accused would show her how to rub his stomach. She said that the accused asked her if she was scared. [T] said she responded by saying ‘no’ because she was scared.[136] [T] believed that the accused made her touch his testicles about two times under his clothing, as she was trying to pull her hand back. When he began to rub her, the accused pulled down her shorts and undies. The accused lifted her top. The accused continued to rub her stomach and vagina. [T] recalled that the accused was licking his fingers and ‘going up and down’.[137] [T]’s evidence was that the accused did this for 20-30 minutes. She recalled that she then fell asleep. This incident is alleged to have occurred within the confines of the caravan in proximity of [MP], the father of [T].
Visiting the accused’s house
Touching their bum
[134] Ibid at p 12.
[135] Ibid at p 13.
[136] Ibid at p 14.
[137] Ibid at p 16.
[T] said that she had been touched multiple times when they stayed over at the accused’s house.[138] Senior Constable Cooper asked [T] to tell her what she remembered about the first time she was touched at the accused’s house. [T] proceeded to recall an incident but not the first one.[139] She said that the accused would tell them to come into his room and lay next to each other. He would then put his hands in their pants and on their bum. This occurred under the clothing. When asked who she meant by ‘we’, she said her and [O]. When asked how she knew that the accused was touching [O], [T] said she would look over and see the accused’s hand. [T] said it was only the three of them when this would occur.[140]
Touching their vagina
[138] Ibid at p 17.
[139] Ibid.
[140] Ibid at p 19.
Following from the above, [T] recalled that when they were laying by the side of the accused, he would put his hands down, feel their bum and vagina.[141] This would occur in his room. He was rubbing it and smacking their bums.
[141] Ibid at p 20.
During such incidents, [T] described her position on the bed. She said she would lay on top of the blankets and her clothes were ‘down the bum but his hands were underneath out clothes’.[142] She said following these incidents the would fall asleep and the accused would keep his hands on their bums.
[142] Ibid.
[T] said that the accused was laying on his back when this would occur. She again stated that his hand would be rubbing against her vagina.[143] She said this happened during the day. [T] said she felt sore and too scared to move. She said this incident lasted for approximately 15 to 20 minutes before they fell asleep.[144] When they woke up, they saw the accused on his phone. She recalled this incident occurring after her grandma died.[145] [T] said the way the accused rubbed her vagina during this incident was different to the way he did it when they were on holiday. She explained that during this incident he used most of his fingers and was going side to side.[146] [T] said that the accused used two fingers, whereas on holiday he only used one finger. She also noted that the accused did not lick his fingers on this occasion. [T] also recalled that the accused was talking to them and saying what they should do the next day during this incident.
Further touching of bum and vagina
[143] Ibid at p 21.
[144] Ibid at p 22.
[145] Ibid at p 23.
[146] Ibid at p 27.
[T] recalled another incident when she and [O] would be in bed with the accused, and he would tell them to put their legs over his as this is what their grandma used to do.[147] Whilst this occurred, he would rub their vagina and bum under their clothing. She said this would occur when she was 8 years of age. No particular details were provided for this incident.
Touching of chest and stomach
[147] Ibid.
[T] said another area that the accused touched her that she considered to be inappropriate was her chest area. She said this would occur when they were lying in bed, and he would sometimes touch their chest under their clothing.[148] She said that this made her feel nervous and scared. She was not able to recall when this occurred; she said she forgot.
[148] Ibid at p 30.
[T] described that when sleeping with the accused, he would rub their stomachs and put his hands down their pants and touch their private parts.[149] She said that the accused knew that he was doing it. She said she believed he was aware of his actions because he continually apologised, but continued to perform the touching. Further, [T] stated that the accused would make her rub his stomach and try to put her hands down his pants.
Recollection of final incident
[149] Ibid at p 4.
As Kourakis CJ emphasised in R v C, CA,[304] an assessment of the probative force of similarity of account evidence requires a focus upon those similarities and dissimilarities that bear upon the improbability of independent concoction, fabrication, or imagination. In the circumstances of that case, for example, the fact that the three complainant boys were of a similar age, did not have a father figure in their lives, were all acquaintances of the accused’s foster son, and all accompanied the accused on outings, were held not to be probative similarities for this purpose.
[304] [2013] SASCFC 137 [93].
This emphasis was repeated in DES v The Queen,[305] and MDM v The Queen.[306] In MDM v The Queen, Peek J explained the need to focus upon similarities in the narrative of the allegations made by the complainants, rather than personal characteristics of the complainants or the accused.[307]
[305] [2020] SASCFC 32 [70].
[306] (2020) 136 SASR 360 [14]-[16] (per Kourakis CJ, Kelly J agreeing) and [128]-[135] (per Peek J).
[307] Ibid [135].
The narrative accounts need not be strikingly similar to attain the requisite probative force.[308] In considering similarities in the narratives of the allegations, the focus must be on the ‘peculiarity and detail’ of those narrative accounts,[309] rather than features that are commonplace and unremarkable.[310] As the Court said in Phillips v The Queen:[311]
The similarities relied on were not merely not ‘striking’, they were entirely unremarkable. That a male teenager might seek sexual activity with girls about his own age with most of whom he was acquainted, and seek it consensually in the first instance, is not particularly probative. Nor is the appellant’s desire for oral sex, his approaches to the complainants on social occasions and after some of them had ingested alcohol or drugs, his engineering of opportunities for them to be alone with him, and the different degrees of violence he employed in some instances. His recklessness in persisting with his conduct near other people who might be attracted by vocal protests is also unremarkable and not uncommon.
[308] Phillips v The Queen (2006) 225 CLR 303 [58].
[309] R v Bonython-Wright (2013) 117 SASR 410 [50].
[310] Sexton v The Queen [2022] SASCA 73 [121].
[311] (2006) 225 CLR 303 [56].
In DES v The Queen, Doyle J said that the focus must be upon the degree of similarity between the complainants’ allegations of abuse, rather than the number or regularity of the instances of alleged abuse. Importantly, the similarity must be between the complainants’ allegations, rather than the complainants’ characteristics.[312] As outlined by Peek J in MDM v The Queen:[313]
… the similarities to be taken into account when applying similar account reasoning are only those appearing within the narrative of allegations made by each of the relevant complaints such as to make it improbable that each complainant would have independently falsified to that same level of detail.
[312] [2020] SASCFC 32 [70].
[313] (2020) 136 SASR 360 [130].
The Court in Sexton v The Queen stated:[314]
If it is a reasonable possibility that the similarity of account is the product of collusion or contamination between the complainants, the probative value of the evidence is defeated. Put another way, the probative force of the similarities in the accounts of each complainant is necessarily undermined if the similarities are due to collusion or contamination between the complainants. It is only if the prosecution excludes collusion or contamination as a reasonable possibility that the evidence can be legitimately used by the jury as a basis for objective improbability reasoning. If the prosecution does not, the evidence of similarities in each complainant's account proves nothing.
[314] [2022] SASCA 73 [190].
Having regard to the above, the similar age and gender of the complainants, the role played by the accused as a grandfather of all complainants and the location of the offending are all of limited relevance for the purpose of similarity account reasoning. These matters are peripheral to the physical sexual offending alleged against the accused.
The determinative inquiry in the present case is whether the commonality and peculiarity of detail amounts to such that the probative value of the complainant’s evidence in excluding the hypothesis of independent fabrication can outweigh the prejudice associated with multiple allegations of sexual impropriety being adjudicated by the one trier of fact.
[M]’s account of the charged offending is qualitatively different from that described by [O] and [T] for the charged act upon which [M] came up to proof. The charged act upon which [M] came up to proof is described as a violent and penetrative act of abuse. This is to be contrasted with the non-penetrative and more subtle sexual behaviours described by [O] and [T]. In these circumstances, [M]’s account is not sufficiently common and peculiar in nature to be admissible for similarity of account reasoning in relation to her sisters’ evidence.
It is evident that [O] and [T] discussed their accounts with one another on a number of occasions. They discussed both charged and uncharged acts and were together when disclosures were made to their mother, [JP]. In those circumstances, the prosecution has not excluded as a reasonable possibility the serious risk of contamination between [O] and [T]. It follows that the evidence of [O] and [T] is not cross-admissible for the purposes of improbability reasoning.
Sexual interest
As I understand the submissions of the prosecution, it is submitted that the charged and uncharged acts against each of the complainants, [M], [O], and [T] are admissible pursuant to s 34P(2)(b) of the EA in that the evidence demonstrates that the accused had a sexual interest in his pre-pubescent granddaughters and a demonstrated willingness to act on this sexual interest when the opportunity arose.[315] Further, the prosecution submitted that the evidence of sexual interest and a tendency to act in furtherance of that interest makes it inherently more likely that the offending occurred.[316]
[315] Prosecution Written Submissions on Discreditable Conduct.
[316] Ibid.
I turn then to the question of whether the evidence of the charged and uncharged sexual acts alleged to have been committed against [M], [O] and [T] are capable of establishing that the accused had a propensity to sexually offend in a particular manner; that the accused had a sexual interest in pre-pubescent girls; that he had a willingness to act upon that sexual interest; and whether he was therefore more likely to have acted pursuant to that propensity in relation to the charged acts.
For evidence to be admissible for a propensity purpose, it must first pass the test in s 34P(2)(a) of the EA That is, the probative value of the evidence must outweigh any prejudicial effect it may have on the accused. Further, for the evidence to be admitted for a permissible use that relies on a particular propensity or disposition of the accused as ‘circumstantial evidence of a fact in issue’, it must have strong probative value, having regard to the particular issue or issues arising at trial pursuant to s 34P(2)(b) of the EA.[317]
[317] MDM v The Queen (2020) 136 SASR 360 [9].
In R v MJJ; R v CJN, [318] Kourakis CJ made the following observations about weighing the probative value of evidence:
The impermissible use identified in s 34P(1) of the Evidence Act is the drawing of an inference of guilt from the fact that the accused has engaged in other conduct which has no relevant connection to the offence other than to share the epithet discreditable. Evidence of discreditable conduct of that kind may, admittedly with some imprecision, be described as evidence of a mere, or general, propensity. Section 34P(2)(b) expressly provides for the admission of discreditable conduct evidence which shows a particular propensity or disposition of the defendant. The particular propensity or disposition must be strongly probative of the offence charged and outweigh its prejudicial effect. Discreditable conduct which has a permissible use, other than by way of demonstrating a particular propensity, need only have a probative value, whether weak, moderate or strong, which substantially outweighs its prejudicial effect.
At the core of the assessment of the probative value of discreditable conduct evidence are two analytical steps. The first is to identify the particular fact which is in issue. The second is to consider how, if at all, the discreditable conduct evidence circumstantially increases, as a matter of human experience, the probability of the existence of that fact. Resorting to generalities such as ‘context’, ‘background’ and ‘underlying unity’ will seldom illuminate the analysis. [Citations omitted]
[318] (2013) 117 SASR 81 [18]-[19].
The probative value of the evidence will depend on the extent to which the propensity makes the elements of the offence charged more likely. This involves a comparison between the propensity and the facts in issue. As outlined by the plurality in Hughes v The Queen:[319]
A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant.
[319] (2017) 263 CLR 338 [64].
Determining the admissibility of propensity evidence is necessarily a fact‑sensitive task. The evidence of [M], upon which she came up to proof, reveals one episode of digital penetration when [M] was 13 years old. Self-evidently [M] could not be described as ‘pre-pubescent’.
Having regard to all of the evidence, including the charged and uncharged acts relied upon by the prosecution and the ultimate findings adverse to the prosecution case in this regard, the prosecution has not established the relevant evidence has sufficient probative value to prove the asserted sexual interest in [M].
Kourakis CJ in R v C, CA was not satisfied that a single isolated incident of offending against one complainant, standing alone, manifests a propensity which is strongly probative of the greater offending against the other complainants.[320] The remarks of Kourakis CJ are apposite to this matter. In the present case, there is an allegation of a course of conduct with a multiplicity of sexual acts involving [O] and [T] as opposed to evidence of a single incident involving [M], upon which [M] came up to proof.
[320] [2013] SASCFC 137 [74].
Further, on the evidence of [O] and [T], they were 6 and 7 when the offending began, and 11 after the Queensland holiday.
I am mindful of what was said by Kourakis CJ in R v C, CA:[321]
In my view, s 34P(3) of the Evidence Act is more likely to weigh against the admissibility of discreditable conduct evidence when the permissible form of reasoning is based on a propensity or disposition which is not powerfully established by the evidence of discreditable conduct.
[321] [2013] SASCFC 137 [79].
In assessing whether the evidence establishes that the accused has a sexual interest in [M], [O], and [T], I have regard to the whole of the acts relied upon, both charged and uncharged. Ultimately, for reasons which follow, the Court is not satisfied of proof beyond reasonable doubt on the charged acts. In those circumstances, the uncharged discreditable conduct is not capable of rehabilitating flaws in the evidence of the charged offending. Further, for the reasons that follow, the Court is not satisfied that much of the uncharged discreditable conduct was proved, and therefore does not meet the criteria for admission pursuant to s 34P(2)(b). The evidence relied upon by the prosecution is not capable of demonstrating a sexual interest on the part of the accused towards [M], [O], or [T] because of various inconsistencies, shortcomings and deficits on the prosecution case.
Forensic disadvantage
Whilst the requirement to direct on s 34CB of the EA does not apply to a trial by judge alone, the principle of forensic disadvantage remains. The question of forensic disadvantage pursuant to s 34CB of the EA was discussed by the Court of Criminal Appeal in R v Cassebohm,[322] R v Maiolo (No 2),[323] R v W, PK,[324] and more recently in R v R, PA.[325]
[322] (2011) 109 SASR 465.
[323] (2013) 117 SASR 1.
[324] [2016] SASCFC 5.
[325] [2019] SASCFC 19.
What is crucial is that s 34CB is exclusively directed at the forensic disadvantage to the accused, and that disadvantage is not diluted by virtue of similar disadvantages to the prosecution witnesses.
In R v Cassebohm, Doyle CJ, relevantly said:
I consider that it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that that is so.
In R v Maiolo (No 2), these factors result in a diminution of the accused’s ‘ability to effectively conduct the case including to cross-examine the complainant(s) in a way that effectively casts doubt upon issues of credibility and/or reliability’.
I direct myself that in respect of all counts, the accused has been substantially forensically disadvantaged in terms of being able to effectively conduct his case. I will take into account that forensic disadvantage to the accused when I come to scrutinise the evidence of the prosecution, and to assess whether the prosecution has proved the objective elements of the relevant count against the accused. In this case, no specific items of forensic disadvantage were identified or advanced by defence counsel. Notwithstanding this, I accept the existence of a forensic disadvantage in accordance with that expressed in R v Maiolo (No 2), above.
Good character
The accused called two witnesses, [DL] and [KP], to give evidence as to his good character and reputation. Each witness was aware of the nature of the allegations made against the accused by his granddaughters.
[DL] has known the accused for 40 years through her late husband’s association with the accused through their employment at the railways. She said the accused is well-liked and respected by those who know him and that he has a reputation for honesty.
[KP] was the wife of the accused’s late son, [A]. She has known the accused since 1992. [KP] and [A] separated in 2011. Notwithstanding the separation, [KP] remained in contact with the accused. She said that the accused is highly respected and held in high regard, as well as having a reputation for being an honest person.
The evidence of the accused’s good character is relevant for the following purposes:
First, when assessing the credibility or truthfulness of the accused’s evidence. A person of good character is generally considered to be less likely to lie or to give a false account of themselves when giving evidence, and as such, this is a consideration when deciding whether to accept the prosecution’s evidence.
Secondly, it is evidence that can be used in determining the likelihood that the accused committed the offence. This is because it is generally considered that a person of good character is less likely to commit a criminal offence and, in this way, is a consideration when deciding whether to accept the prosecution’s allegations that he committed the offences.
However, it is to be noted the mere fact that someone is of good character cannot alter proven facts. It is only one of the many factors that the court can take into account in determining whether it is satisfied beyond reasonable doubt of the guilt of the accused.
Record of Interview (ROI) of the Accused
As previously mentioned, the accused participated in a record of interview with the police in relation to the allegations raised by [M], [O], and [T].
Whilst there were some differences in the detail upon which the accused was taxed during the ROI and those ultimately relied upon by the prosecution, the accused was consistent in his denials of any wrongdoing.
The accused agreed that he had the opportunity to offend against each of the complainants, and made concessions as to [M], [O], and [T] sleeping in his bed. The accused made a comment that sometimes his hand would flop down, and his thumb would be inside the elastic of [O] and [T]’s underwear. Whilst this aspect of the accused’s interview is concerning, when considered in the context of the entirety of the interview, it does not amount to a confession, nor having regard to all of the evidence, does it cause me to reject his denials as being reasonably possibly true. This admission does, however, support aspects of the complainants’ evidence that the accused would sleep with them in circumstances of close contact with their underwear and associated regions of their bodies. I have paid close regard to this aspect of the narrative of the accused.
An overall assessment of the interview leads me to conclude that the accused made appropriate concessions, was consistent in his account, and whilst there were admissions to sometimes odd, unusual, or behaviour requiring careful scrutiny by the Court, there is nothing in his account, when considered along with all of the evidence presented at trial, that would cause the Court to reject his denials as being reasonably possibly true.
SMS communication with JP
The SMS exchange between JP and the accused after the allegations came to light are contained within Exhibit P10. The fact of those communications do not appear to be in dispute. The communications do not amount to an admission to any charged incident on the part of the accused. The communications of the accused with [JP] support aspects of the prosecution case which are not materially in dispute; namely the opportunity of the accused to commit the charged acts, and admissions by the accused to close physical contact with the complainants.
Generally speaking, the SMS communications authored by the accused are similar to much of what the accused stated in the record of interview.
Discussion
Counts 1 and 2
The evidence of [M] was adversely impacted in a number of material ways. [M] failed to come up to proof in relation to particular (d), an allegation of the accused kissing her on more than one occasion. As to particular (c), there was evidence that the accused touched or licked [M]’s ear on only one occasion, as opposed to on more than one occasion, as alleged. Whilst it is true that [M] disclosed an occasion when the accused made contact with her ear using his tongue on one occasion, I am not satisfied beyond reasonable doubt that this occurred in circumstances of indecency. The prosecution have failed to exclude the reasonable possibility that this incident arose from horseplay. Further, acting on the evidence that on one occasion [M] woke up with her thumb resting on the accused’s genitals, the complete absence of any explanation as to how her thumb came to be in that position means that the Court cannot be satisfied beyond reasonable doubt that the accused caused [M] to touch his penis, as alleged in particular (a).
This has the consequence of the sole remaining particular, particular (b), an allegation of the accused inserting his finger into [M]’s vagina, being the only surviving particular of count 1. On the Crown case, this is an isolated act of digital penetration that is alleged to have occurred on a single specified occasion.
It follows that the Court is not satisfied of proof beyond reasonable doubt as to particulars (a), (c) and (d) of count 1. Given that particular (b) to count 1 relates to a single allegation of digital penetration, it necessarily follows that the prosecution has not proved that the accused intentionally committed two or more of the particularised acts and therefore the accused is to be found not guilty on count 1.
Count 2 is an alternative to count 1.
The allegations giving rise to particular (b) of count 1 and to count 2 are the same. Whilst [M] was able to describe the act of digital penetration relied upon, her evidence included a number of proved inconsistencies between her evidence and statements previously provided to police, which included [M]’s positioning on the bed, the positioning of [M]’s legs, the evidence of [M] that the accused jumped on top of her on the bed effectively pinning her down,[326] that the accused kept pulling [M] closer, lifting her feet up towards the roof (up almost to his shoulder), [M] stating that the accused stood at the end of the bed, grabbing her by the ankles and pulling her closer, and [M] telling police that she had to ‘scrunch’ her legs up to her chest.
[326] T49-51.
Whilst [M]’s complaint to [AR] is capable of demonstrating consistency of conduct in that [M] complained of being touched on the vagina by the accused, the detail of [AR]’s evidence reveals further inconsistencies on the part of [M], notably, that [M] was pretending to be asleep when the touching of the vagina occurred.
The inconsistencies do not relate to peripheral matters. There are multiple inconsistencies. Considered together, the alternative version arising from the inconsistencies describe a mechanically very different incident to the version given by [M] in evidence. Further, on the evidence which I accept as to the physical limitations of the accused, there was a consistent theme that those limitations mean that it was not possible for the accused to ‘jump’ onto [M] as suggested. When given the opportunity to clarify the use of this language in re-examination, [M] reiterated that the accused ‘jumped’ or ‘leapt’. The evidence before the Court as to the physical limitations of the accused overwhelmingly support a finding that the accused was not physically capable of jumping or leaping onto [M]. Put simply, it was not possible for the accused to leap onto [M] in the manner she described.
Particular (b) of count 1 and count 2 have not been proved beyond reasonable doubt. The accused is not guilty of count 2.
Count 3 – complainant [O]
The prescribed interview of [O] (Exhibit P5) took place when she was 11 years of age. [O] was 13 when giving evidence at trial. The predominant focus of Exhibit P5 was the uncharged conduct alleged to have taken place in Queensland.
During the course of the prescribed interview, [O] frequently lapsed into a plural-first-person subjective description of events. It is often difficult to disentangle the narrative in order to ascertain what is alleged to have happened to who, presumably with reference to her sister, [T]. Even making allowances for the age of [O] when the prescribed interview was conducted, the lack of detail she provided is concerning.
This absence of detail extends to the charged particulars. In relation to particular (d), causing [O] to touch the penis of the accused on more than one occasion, the high water mark of [O]’s evidence to this particular is that the accused would put ‘their’ legs over his legs and she could ‘feel his dick’ and that it happened more than one time.
The at times confusing nature of [O]’s account and lack of detail were compounded by aspects of unsatisfactory evidence. One of those topics related to the photograph taken of [O] on the toilet during the Queensland holiday. The toilet photograph formed part of Exhibit D6. It was also a subject of evidence from [MP], the father of [O].
The recurrent theme from [O] relating to this photograph was that it was prurient in nature. [O]’s evidence was that the focus of the photograph was upon her vagina.
When shown the photograph under cross-examination, she agreed that her vagina was not visible. [O]’s immediate explanation was that the picture had been cropped. However, when pressed, [O] agreed that the accused showed the photo to her father [MP] immediately after it was taken and that she and her father started laughing. When pressed on the issue further, [O] agreed that she was sitting on the toilet on her bottom and that her vagina was not visible in the photograph.
[MP] stated that he was shown the exhibit photo immediately after it was taken. The image he saw appears as it does in the exhibit. [MP] agreed that he found the photograph funny, and that it was not a photograph of any concern.
I accept the evidence of [MP] on this topic. [MP] was very matter of fact and dismissive of any nefarious aspect to the taking of the photograph. I do not accept the photograph was cropped as suggested by [O]. The evidence that the photograph was immediately shared with [MP] is contrary to [O]’s assertion in this regard.
A difficulty that arises with [O]’s evidence on this topic is that it demonstrates a capacity, if not willingness on the part of [O], to retrospectively attribute a nefarious prurient description to something considered to be humorous or anodyne conduct on the part of the accused. The fact that [O] was prepared to insert incorrect details into her account, such as the editing of the image, to support her position is also problematic.
The insertion of incorrect details may well be as a result of [O] reconceptualising events in a different way utilising hindsight. This is a concern in the circumstances of this particular matter, given the potential for reconceptialisation of the events giving rise to particular (b), namely causing her to kiss him on the lips on more than one occasion. This tends to be supported by the evidence of [O] saying that the kissing would consist of a bunch of kisses, and that kissing on the lips was something that would occur in the presence of other family members. This is particularly so in relation to the group Christmas kiss[327] discussed earlier in these Reasons, seemingly nefarious at first blush, but innocent on a proper assessment of the evidence.
[327] See [112] above.
Another inconsistency of significance relates to [O]’s evidence under cross‑examination that she did not see the accused touch her sister [T] inappropriately. This is contrary to what [O] stated in her prescribed interview.
Careful consideration has been given to the respective arguments of prosecution and defence on this inconsistency. In assessing the significance of the inconsistency, I am mindful of the age of the complainant and the difficulties sometimes associated with young and/or unsophisticated witnesses responding to certain types of questions during cross-examination. However, ultimately, I am satisfied that the witness properly understood the suggestion and answered accordingly. It follows that this is a material inconsistency.
A common issue arising on both the evidence of [O] and [T] is the likelihood of the alleged acts of abuse occurring at night time inside the family caravan. This is worthy of discussion, particularly in light of the evidence that arose from [O] and [T]’s father, [MP], and the photographs related to the family holiday in Queensland that was tendered.
[O] and [T] describe being indecently assaulted by the accused at night in the beds of the caravan. Those accounts include descriptions of less than momentary sexual touching, accompanied with discussions between the accused and the object of his assault, be it [O] or [T].
[MP] described the layout of the relevant caravan, which is consistent with the tendered photographs. The theme of this evidence, which the Court accepts, is that the sleeping quarters within the caravan were cramped, and that there was virtually no privacy. To use the words of [MP], ‘Well, you could hear if somebody farted’ and that you could basically hear everything when inside the caravan.
[MP] agreed that he never heard anything being said by the accused in the caravan at the relevant times to either of the girls. [MP] did not see or hear anything troublesome in the caravan.
Whilst the Court accepts that sexual offending against children can often occur in the most brazen circumstances, it is inherently unlikely that the accused would be able to offend in the manner explained by [O] and [T] at night time in the confines of the caravan, in the presence of their father, against each of them, on a multiplicity of occasions.
Pool incidents – uncharged
The prosecution rely on discreditable conduct said to arise on [O]’s evidence about activity taking place in a swimming pool whilst on holiday in Cairns. [O] described playing a game in the pool that involved [O] and [T] diving under the water between the accused’s legs. The description given by [O] about this activity is devoid of adequate detail about the nature of physical contact between [O], [T] and the accused to permit any finding that any touching was attended with a prurient purpose. It cannot be excluded that what had occurred was horseplay forming part of normal interactions between [O], [T] and the accused during the course of playing games in the swimming pool. The revisionist nature of [O]’s evidence about the toilet photograph is also relevant to an assessment of this evidence.
Count 4 – complainant [T]
The prescribed interview of [T] (Exhibit P7) took place when she was 11 years of age. [T] was 13 when giving evidence at trial. As was the case with her sister [O], the predominant focus of [T’s] prescribed interview was the uncharged conduct alleged to have taken place in Queensland.
[T] described uncharged acts taking place at night in the caravan in close proximity of [JP], the father of the complainant. This included the accused talking to, and encouraging, [T] to touch his genitals. Again, the layout of the caravan, the almost complete lack of privacy and close proximity of the family, means that it is inherently unlikely that the uncharged offending inside the caravan occurred as described, or without going unnoticed.
The contents of Exhibit P7 as they relate to the charged allegations are frequently expressed in the plural as ‘we’ and ‘our’. An example of this is when asked when the touching started, [T] responded ‘we can’t remember’, and that the accused would touch ‘our bum’. The focus of [T] as to the charged offending in Exhibit P7 appears to be about smacking on the bottom, and that any touching on the vagina is something of an afterthought.
There is also the difference in account by way of omission on the part of [T], in that at no stage did [T] make mention of the accused having both twins sit on his lap, kiss them, and touch them on the bottom. The charged particular (b) in relation to [T] relies entirely on the evidence of [O]. [T] has never described being inappropriately kissed by the accused.
In relation to particular (d); the accused causing her to touch his penis on more than one occasion, as it relates to [T], the evidence on this topic is vague and lacks specific detail. The evidence of [T] describing the accused telling ‘us to put our legs over his legs’ is vague. Overall, the evidence on this topic lacks sufficient detail for this particular to be proved.
General observations
The evidence of [O] and [T] is left generally in an unsatisfactory state. Their prescribed interviews are confusing, on occasion devoid of detail, absent of context, and often told either on behalf of the other complainant or on behalf of both complainants.
Their sworn evidence fails to rehabilitate these shortcomings.
The inconsistencies that I have found proved and the lack of particularity on the part of each of the complainants is not inconsequential.
Assessment of the credibility and reliability of the complainants
Whilst there was nothing in the demeanour of each of the complainants in the course of examination‑in‑chief or cross‑examination which caused me any concern about credibility or 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 defence in the course of the trial, and whether there is support for the evidence of each complainant. Whilst I do not have to be satisfied beyond reasonable doubt as to the reliability and credibility of every aspect of the complainants’ evidence, it is trite to say that the prosecution case stands or falls on an acceptance of that evidence as to whether the sexual acts took place, beyond reasonable doubt.[328]
[328] Murray v The Queen (2002) 211 CLR 193 [57].
On the whole of the evidence, given the inconsistencies that arose on the evidence of [M], [O], and [T], the confusing accounts given by [O] and [T] in the prescribed interviews, including the frequency in which those narratives were expressed in the plural; difficulties in distilling the acts said to have been perpetrated upon whom; whether the acts occurred in Queensland or South Australia, the inherent improbability of the uncharged acts taking place in the caravan on the Queensland holiday; the inability of the prosecution to prove a prurient component to the accused’s impugned behaviours; the forensic disadvantage suffered by the accused; the good character of the accused and the fact that the Court could not exclude the denials of the accused as being reasonably possibly true, the Court is not satisfied as to proof of the charges to the exacting standard of proof beyond reasonable doubt.
Verdicts
1. The Court is not satisfied beyond reasonable doubt as to the particulars of count 1.
2. The Court is not satisfied beyond reasonable doubt as to count 2.
3. The Court is not satisfied beyond reasonable doubt as to the particulars of count 3.
4. The Court is not satisfied beyond reasonable doubt as to the particulars of count 4.
Having regard to all of the evidence, I find the accused not guilty on all counts.
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