R v PLN

[2024] SADC 97

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v PLN

Criminal Trial by Judge Alone

[2024] SADC 97

Reasons for the Verdict of his Honour Judge Alexandrides 

14 August 2024

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

The accused is charged with one count of maintaining an unlawful sexual relationship with a child. The acts are alleged to have occurred between 13 December 2014 and 1 March 2018 when the victim was aged between nine to 10 years and 13 years.

The accused elected for trial by judge alone.

Held: Guilty

Evidence Act 1929 (SA) s 34, referred to.

R v PLN
[2024] SADC 97

Prosecution case

1. KN, the female complainant in this matter, was born in Vietnam on 17 January 2005.[1]

   [1]     T16.6-9.

2. PLN, the accused, is the father of KN. The accused was born on 3 February 1966.

3. The accused separated from KN’s mother, KXN, when KN was about two years old. KN lived with her mother in Vietnam and saw her father on weekends.

4. In 2014 when KN was nine years old, she came to Australia with the accused and an older brother XQN (known as Vince). The family arrived as migrants on 12 December 2014.

5. After a period of short-term accommodation, on 6 February 2015 the family secured a rental property at 49 Days Road, Croydon Park. A tenant named Mr Loc also lived at the premises.

6. On 6 February 2015, KN’s eldest brother XLN came to Australia and moved into the Days Road premises.

7. The accused worked as a farm labourer engaged in pruning and picking fruit. XLN and the tenant Mr Loc were engaged in the same work. Vince attended English classes and then school in those early years and was also engaged in farm work. XLN and Vince worked periodically as farm labourers and restaurant hands and also attended university and school. KN commenced school at Kilkenny Primary School on 9 February 2015.

8. It is alleged that around 2014 or 2015 the accused began an unlawful sexual relationship with KN.[2]

   [2]     T20.14-35.

9. The first alleged unlawful sexual act by the accused with KN occurred in the accused’s bedroom at the 49 Days Road premises. The accused and KN shared the bedroom.

10. KN was on the computer in the bedroom, wearing her pyjamas. The accused told her to get on his bed where he was sitting up, covered with a blanket. KN got under the blanket next to the accused.  She was lying on her back.

11. The accused took her hand and placed it on his penis under the blanket. The accused had his hand around her hand and was using her hand to masturbate himself.

12. The accused then removed the blanket, placed his hand on KN’s chest under her clothes and rubbed her nipples while still masturbating using KN’s hand.

13. The accused then moved his hand down to KN’s vagina under her clothing and rubbed her vagina while continuing to masturbate using KN’s hand.

14. The accused then ejaculated and left the room after cleaning himself with a tissue.

15. It is alleged that the second unlawful sexual act by the accused with KN occurred about two days later, again at the Days Road premises.

16. KN was at home when the accused told her to go to his bedroom. She was scared and complied.

17. In the bedroom, the accused sat upright on the bed with his legs extended. He removed her pants and underwear, pulled down his pants and told her to sit on his penis. KN complied and sat on the accused placing her vagina on top of his penis. The accused tried to insert his penis into KN’s vagina. After a short time, he inserted his penis into her vagina, which KN said hurt a little.

18. The accused told her to move her body. He told her to ‘ride him’ and move up and down. KN was scared but did what he told her.

19. The accused then told her to get off. He then directed her to suck his penis and told her how to suck his penis. KN complied.

20. The accused then told her to suck his testicles and instructed her how it was to be done. KN complied. While she was sucking his testicles, the accused was masturbating. He then ejaculated. The accused then cleaned himself up, put on his clothes and left the room.

21. It is alleged that from that point onwards the accused engaged in unlawful sexual acts with KN continually which became routine. KN could not recall the specific details of these further incidents of sexual acts by her father.

22. While living at the Days Road premises, KN gave evidence that the sexual acts occurred four to five times a week when her father was not at work.

23. The incidents occurred often around daytime or after school before her brothers got home from work, or around bedtime when everyone was in their room and she was sleeping.[3]

    [3]     T45.24-38.

24. The sexual acts involved the accused inserting his penis into KN’s vagina on every occasion. Sometimes the accused would lick her vagina, sometimes he would cause her to suck his penis, to masturbate his penis and cause her to lick his testicles.

25. The accused told KN, ‘don’t tell anyone’, and ‘don’t let nobody know about this’.[4]

    [4]     T40-41.

26. When KN finished year 5 at Kilkenny Primary School, the family moved to a premises at 17 Murchison Street, Mansfield Park. At those premises, KN shared a bedroom with the accused or sometimes her brothers, who were sharing a room. A different tenant lived with them at Murchison Street.

27. It is alleged that the sexual acts between the accused and KN continued while they lived at Murchison Street. The frequency and nature of the sexual acts remained the same.

28. As time progressed, the touching of KN’s vagina by the accused changed. It went from occurring for a longer period to a shorter period.[5]

    [5]     T47.1-20.

29. After the first incident of penile vaginal intercourse when KN sat on the accused’s penis, sexual intercourse would most often occur with her lying on her back and the accused on top and facing her.

30. On some occasions, but rarely, she would lie on her stomach and he would insert his penis into her vagina from behind.

31. Once the accused had ‘showed her everything’, namely, after he had showed her how to suck his penis and after he had inserted his penis into her vagina, KN would not masturbate him using her hands because most of the time he would insert his penis or make her suck his penis.[6]

    [6]     T49.16-26.

32. When the accused began engaging in penile vaginal intercourse with KN, he would ejaculate in her vagina. Later when KN began to menstruate, he would ejaculate outside her vagina just under her ‘tummy’.[7]

    [7]     T60.26-T61.6.

33. When KN was about 11 years old and in year 6, the family then moved from 17 Murchison Street to 44 Liberty Grove, Woodville Gardens. KN then began attending Woodville Gardens Primary School.

34. The accused’s bedroom at Liberty Grove was formerly a lounge room. The front door to the premises was located in the room. The front door was not generally used; the occupants and people attending would enter the house from a rear door adjacent to the laundry which was towards the rear of the house.

35. There were a series of tenants living at the house at the same time. There were two rooms occupied by tenants.

36. KN usually shared a bedroom with her brother Vince at the Liberty Grove premises. She sometimes slept in a tenant room when there was a vacancy.

37. It is alleged that the frequency and nature of sexual acts by the accused with KN generally remained the same at Liberty Grove. However, the accused would lick KN’s vagina more frequently at this time.

38. While living at the Liberty Grove premises, the accused engaged in a particular sex act with KN for the first time. It involved each of them performing oral sex on the other simultaneously. The accused licked KN’s vagina and at the same time KN sucked the accused’s penis while they faced each other. That sexual act occurred more than once, but not often.

39. When KN was about 12 years old and in year 7, the family moved to 33 Essex Street, Woodville Gardens. KN continued to attend Woodville Gardens Primary School.

40. KN had her own bedroom at 33 Essex Street. It was adjacent to the accused’s bedroom and shared an internal wall with that room.

41. The unlawful sexual acts by the accused with KN continued after they moved to 33 Essex Street.

42. The sexual acts would commence each time after the accused knocked on the bedroom wall which divided his and KN’s room. KN knew from experience that the accused was knocking to summon her to his bedroom where the sexual conduct would occur.

43. If KN did not comply, he would go to her room and direct her to his room. If she locked her bedroom door, he would use his key to unlock the door.

44. The frequency of the sexual acts remained the same, at four to five times a week. The sexual acts always involved penile-vaginal penetration. The accused would also make KN suck his penis, he would rub her vagina and he would masturbate. This occurred as frequently as it had at the Liberty Grove premises. The frequency of licking her vagina was the same or increased.

45. While living at Essex Street, KN’s brother XLN moved out because of his disagreements with the accused over money and the accused’s gambling habit.

46. Later, Vince also moved out of Essex Street because of difficulties with his relationship with the accused. Vince arranged for KN to move in with him at premises in St Clair.

47. The accused continued to support KN financially after she moved out.

48. The sexual abuse did not continue after KN moved out of the accused’s premises. However, on one occasion when the accused attended the St Clair premises, he attempted to engage in sexual intercourse with KN. The attempt was unsuccessful because Vince was heard to return home.

49. When in year 9 or 10 at Woodville High School, KN told her school friend YL that she was sexually abused at home. KN told YL that her dad did it. When asked by YL, KN confirmed that her father had inserted his penis into her vagina.

50. After KN moved away from her father to live with Vince at St Clair, she told him that their dad had ‘raped’ her.

51. The accused is charged on an Information dated 22 April 2022 with the following offence.

    Statement of Offence

    Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of Criminal Law Consolidation Act, 1935).

    Particulars of Offence

    [PLN] between the 13th day of December 2014 and the 1st day of March 2018 at Croydon Park and other places, maintained an unlawful sexual relationship with [KN], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [KN], namely:

    (a)    touching her nipples;

    (b)    touching her vagina on more than one occasion;

    (c)    causing her to masturbate his penis;

    (d)    inserting his penis into her vagina on more than one occasion;

    (e)    causing her to perform an act of fellatio on him on more than one occasion;

    (f)     causing her to lick his testicles;

    (g)    masturbating in her presence on more than one occasion; and

    (h)    performing an act of cunnilingus on her on more than one occasion.

    This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.

    Defence case

52. The accused elected for trial by judge alone. He was represented by experienced counsel and assisted by an interpreter who was present throughout the trial.

53. The accused exercised his right to remain silent and did not give evidence.

54. The allegation of maintaining an unlawful sexual relationship was contested and through his counsel, the accused put his denials of wrongdoing to the complainant, KN.

55. The defence case relies on several issues which are said to give rise to a reasonable doubt about the credibility of the complainant and her reliability as a witness.

56. In essence those issues are;

    1.Lack of opportunity to commit the acts of sexual abuse in the circumstances, timing and frequency alleged;

    2.Inconsistencies and omissions between the complainant’s evidence and prior statements to police and initial complaint evidence;

    3.The complainant’s motive to lie, due to the claimed withdrawal of financial support from the accused and his marriage to his second wife, who the complainant did not like and resented.

    Legal Principles

    Onus and burden of proof

57. The prosecution carries the onus of proof. The accused is presumed to be innocent unless and until the prosecution can prove each of the elements of the offence beyond reasonable doubt. If there remains a reasonable doubt about any of the essential elements of the offence, then the prosecution has not proven its case and the accused is entitled to an acquittal on that charge. Expressed in another way, if there is a reasonable possibility that the accused has not committed the offence as alleged, the prosecution case must fail. The accused is not obliged to prove anything to secure his acquittal.

58. The elements of the offence with which the accused has been charged and which the prosecution must prove beyond reasonable doubt are discussed later in these reasons.

    Assessment of testimonial evidence

59. The testimonial evidence of witnesses must be assessed for both its credibility and reliability.

60. I am permitted to consider the demeanour of the witnesses when determining their credibility and reliability. In doing so, I am required to take into consideration that witnesses who come before the court vary in age, background, education, intellectual capacity, ability to express themselves and personal characteristics.

61. The assessment of the evidence of each witness requires a consideration of, amongst other things, its cogency and consistency, whether it is consistent with other facts which I accept, whether the witness has made inconsistent statements in the past and whether the witness has been shown to have lied in the past.

62. I may accept or reject a witness’s evidence in its entirety, or I may reject some aspects of the evidence of the witness and accept other parts.

63. The prosecution case rests on the evidence of the complainant and I am required to scrutinise her evidence carefully.

    Evidence of the accused

64. The accused exercised his right to silence and did not give evidence.  I do not draw any inference adverse to the case he puts forward from his exercise of that right.  His silence cannot be used to fill any gaps in the prosecution case.  He is not required to prove anything.

    Evidence of good character

65. It is an agreed fact that the accused does not have any criminal antecedents. No other evidence of good character was led.

66. I take into account the accused’s good character in assessing the likelihood that he committed the offence with which he is charged.

    Special arrangements for taking evidence from witnesses

67. The complainant KN gave evidence with special arrangements in place, namely the provision of a screen to obscure the complainant’s view of the accused, the presence of a court companion and the court being closed to the public. A witness, YL, gave evidence with a screen in place to obscure her view of the accused. I have not drawn any adverse inference against the accused from the fact that these arrangements were in place. I have not allowed the fact of these special arrangements to influence the weight that I gave to the evidence of the two witnesses involved.

    No prejudice, sympathy or fear in the assessment of the evidence

68. I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, prejudice, or fear.      

    Discreditable conduct

69. The evidence in this case disclosed conduct which is not the subject of any charges in which the accused was apparently engaged which might reasonably be regarded as discreditable.

70. The evidence and its relevance can be summarised as follows.

71. It was said the accused was experiencing financial difficulties because of his involvement in gambling. The financial difficulties were the cause of disagreements between the accused and his two sons. There was evidence at trial that the accused would ask his sons to borrow money and would yell and become abusive. It was said by Vince that he believed the accused had taken some money from him. The complainant knew the accused and her brothers argued over financial issues, including the non-payment of bills by the accused and monies allegedly owed by the accused to her eldest brother.  

72. The evidence was relevant because it explains why KN’s brother Vince departed the accused’s home and the circumstances in which KN also left.

73. It was also relevant because it related in part to the financial issues, which on the defence case, provide a potential motive for the complainant to lie about the alleged sexual abuse.

74. The evidence was not objected to and was admissible pursuant to s 34P(2)(a) of the Evidence Act 1929 (SA) for a permissible use identified above.

75. The evidence of potentially discreditable conduct was not relevant for any other purpose.

76. The evidence, if accepted, is not to be used for the impermissible use, namely, to reason that because the accused has engaged in the discreditable conduct, he is a person of bad character and therefore more likely to commit the offence with which he is charged. 

    Initial complaint and elaboration

77. In her evidence, KN said she made an initial complaint to her school friend YL in year 9 or year 10 at Woodville High School about her father’s alleged unlawful sexual acts. The evidence of the complainant was also that she elaborated on that initial complaint to her brother Vince after they moved into the St Clair premises.

78. I remind myself about the requirements under s 34M of the Evidence Act about the use of the initial complaint evidence and the evidence about an elaboration of that complaint.

79. Firstly, the evidence of the complaint by KN to YL and subsequently to her brother informs the court about when the allegations made by KN against her father first came to light.

80. The second permissible use is as evidence of the degree of consistency of conduct of KN. As a matter of law, the making of a complaint or disclosure of sexual abuse or misconduct is admissible and relevant in assessing the consistency of conduct of an alleged victim about that sexual abuse or misconduct.  It may be taken into account to assess whether the complainant’s disclosure to YL and her brother about her father’s alleged conduct is consistent with the alleged conduct having occurred. In other words did the complainant, in reporting the conduct, act in a way consistent with the way a person who had experienced such conduct would have acted? Furthermore the content of the disclosure, the account given by the complainant to YL and her brother, may be considered to assess the consistency of the evidence of the complainant given in court about the alleged sexual offending. 

81. The evidence of KN’s disclosure of the alleged sexual abuse to YL and her brother is not evidence of the truth of what KN said to either of them. The law does not permit the use of what KN disclosed to them as evidence of the truth of what she said happened. Because she disclosed an allegation to them does not mean it was true when said.  The disclosure cannot be used as evidence which supports the truth of the evidence she gave, namely that her father did any of the things alleged against him.

82. However, the disclosure can be used to assess KN’s credibility to the extent to which the disclosure demonstrated a degree of consistency of her conduct in making the complaint and the degree of her consistency in evidence about the alleged conduct of the accused.

83. It is for the trier of fact to determine the degree or extent of the consistency of conduct demonstrated in KN’s disclosures to YL and Vince.  To the extent that the disclosure is consistent in terms of her conduct and her narrative, it may be used to support her credibility.

84. I also note that there may be a variety of reasons why an alleged victim of sexual offending makes a complaint or disclosure of alleged offending at a particular time to a particular person.  It follows that there may be a variety of reasons why a complaint was not made at an earlier time or to another person. 

    Motive to lie

1. On the defence case it was suggested that KN lied about the alleged sexual abuse by the accused, potentially because she was aggrieved about a disagreement between the accused and her brothers over money, the level of financial support the accused was providing for her and the fact he had remarried and she did not get along with the accused’s new wife. These suggested reasons for lying were interrelated.

2. I remind myself of the approach I must take when considering the evidence about which it is suggested by defence possibly provides a motive for KN to lie.

3. I must consider this argument and any evidence said to support such a motive to lie.  I must consider whether that argument and evidence affects whether I accept KN’s evidence.

4. The defence is not required to prove that KN had a motive to lie. If I reject the argument or theories put forward by defence, that does not mean that KN is telling the truth.  It does not strengthen the prosecution case.  There may be many reasons why a witness may lie. 

5. The defence have suggested possible reasons but if those reasons are rejected there may be another or indeed other reasons.  It is not possible to discern why a person may lie. 

6. I am not to treat KN’s evidence as more credible or more believable because I have rejected a possible reason or reasons for her to be lying.  There may be other reasons that no-one has identified. 

7. If I conclude that there is no evidence that KN has a motive to lie, or lied for a particular reason, I must not conclude that she has no reason to lie and is therefore telling the truth.

   Forensic disadvantage

8. As a trial Judge hearing a matter without a jury, I am not required to consider the question of whether the accused has suffered a “significant forensic disadvantage” which may have enlivened the obligation to direct myself in accordance with the provisions of s 34CB(2)(a) and (b) of the Evidence Act.

9. However, the circumstances of this case do require that I consider the circumstances which do give rise to a forensic disadvantage to the accused.

10. There is, in this case, a real possibility that the accused suffered a forensic disadvantage by virtue of the delay between the time it is said the alleged incidents occurred and when the allegations were first reported to the police and came to the attention of the accused.

11. The accused is disadvantaged by the passage of time because of its effect on his memory about details such as his movements and work arrangements. The disadvantage arises from a limitation on his ability to instruct his counsel sufficiently to challenge the complainant’s evidence about the details of the time and circumstances of the alleged acts of unlawful sexual conduct. Those issues were relevant on the defence case about the opportunity of the accused to have committed the unlawful sexual acts at the relevant times and with the frequency alleged. It was also relevant to the issue of who else may have been present at the premises at the time of the alleged unlawful sexual acts. Such evidence would be relevant indirectly to the issue of opportunity insofar as there may have been a risk of detection.

12. The delay in this case may have affected the accused’s capacity to contact potential witnesses who were living at the premises where it is said the alleged unlawful sexual acts occurred, and who may have been able to provide evidence about the issues identified above.

    Excluded evidence

13. During the trial, the defence sought the exclusion of proposed evidence on the prosecution case of an alleged conversation between the witness Vince and the accused. The evidence of the alleged conversation was relevant on the prosecution case as a statement against interest made by the accused.

14. The proposed evidence was excluded. I gave reasons for the exclusion of the evidence at the time and it is not necessary to repeat those reasons.

15. There was no application at the time of the ruling that I should recuse myself having heard the evidence which was claimed to be confessional.

16. I disregard the excluded evidence from my deliberations.

17. Whether the prosecution has proven its case is to be decided only upon the admissible evidence.

    Elements of the offence - Maintaining an unlawful sexual relationship with a child

18. The offence of maintaining an unlawful sexual relationship with a child is comprised of four elements which the prosecution must prove beyond reasonable doubt.

19. The first element the prosecution must prove is that the accused maintained a relationship with KN during the relevant period covered by the charge.  The charge relates to alleged conduct occurring from 13 December 2014 to 1 March 2018.  There is no dispute that the accused is the complainant’s biological father. There was a continuing familial relationship of father and daughter between them which was maintained by the accused during the period of the alleged offending. 

20. The second element the prosecution must prove is that there was an unlawful sexual relationship between the accused and KN.  An unlawful sexual relationship is defined at law as a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child over the period encompassed within the particulars of the charge.  An unlawful sexual act means any act that constitutes a sexual offence.  The alleged unlawful acts are set out in the particulars of the charge on the Information.  There are eight different unlawful sexual acts which are particularised on the Information.

21. The prosecution is not required to allege particulars of the unlawful sexual acts that would be necessary if the acts were charged as separate offences. The prosecution is not required to prove the particulars of the unlawful sexual acts as if the acts were charged as separate offences, but must prove the general nature or character of those acts.

22. As a matter of law, each of the particularised acts pleaded in the charge, if proven, constitute a sexual offence.

23. The acts particularised on the Information, at paragraph a) touching her nipples, paragraph b) touching her vagina, would each constitute the offence of indecent assault. 

24. An indecent assault is an assault that is accompanied by or committed in circumstances of indecency.  An assault for the purpose of this offence is simply any intentional, that is a deliberate rather than accidental, application of force to another person without lawful excuse or justification.  Touching someone would be sufficient to constitute an assault for this purpose provided the touching was intentional and unlawful.

25. The application of force or touching must be unlawful, that is without lawful justification or excuse.  The alleged acts in this case are denied and no such lawful excuse or justification has been raised.

26. The assault must be indecent.  That means the assault must be accompanied by or committed in circumstances of indecency.  Here 'indecency' means something which offends the community's contemporary or existing standards of propriety or decency and which has a sexual connotation or overtone.

27. The acts particularised on the Information at paragraph d) inserting his penis into her vagina, e) causing her to perform an act of fellatio on him and h) performing an act of cunnilingus, would each constitute the offence of unlawful sexual intercourse.  The offence of unlawful sexual intercourse is established if the prosecution has proved that there was an act of sexual intercourse engaged in between an adult and a person under the age of 17 years.  Sexual intercourse is broadly defined at law and includes the act of cunnilingus, that includes licking any part of the vagina.

28. The acts particularised on the Information at paragraph c) causing her to masturbate his penis, f) causing her to lick his testicles and g) masturbating in her presence would each constitute the offence of committing an act of gross indecency.

29. An act of gross indecency in the context of this case involves doing something of a sexual nature or with sexual overtones, with or in the presence of a person under the age of 16 years. Whether an act is indecent is to be determined according to contemporary standards of behaviour. A gross act of indecency means an extreme or flagrant act of indecency.

30. Returning now to the elements of the offence charged. In relation to the second element of the offence, namely, to establish that there existed an unlawful sexual relationship, the prosecution must establish beyond a reasonable doubt that there were at least two unlawful sexual acts during the period encompassed by the charge on the Information. 

31. It is not necessary to prove all the alleged unlawful sexual acts occurred. It is necessary to prove only two or more sexual acts particularised on the Information occurred in the relevant period.

32. It does not matter which two of the particularised unlawful sexual acts are proven, so long as there have been at least two acts proven to have occurred over the period alleged in the charge. 

33. The issue of consent or lack of consent of KN to any of the alleged acts of unlawful sexual conduct simply does not arise.  As a matter of law, a child (for the purpose of these offences), someone under the age of 17 years, is deemed not capable of consenting to any form of sexual activity.  During the period alleged in the charge, KN was under the age of 17 years and did not have the legal capacity to consent.

34. Thirdly, the prosecution must prove that KN was a child during the period of time encompassed by the charge.  Again, for the purpose of this offence, a child is a person who is under the age of 17 years.  KN was born on 17 January 2005. There is no dispute that she was a child during the relevant period.

35. The fourth element the prosecution must prove is that the accused PLN was an adult during the period encompassed by the charge.  There is no dispute that between the dates charged the accused was an adult.

    Summary of Trial Evidence

    KN – The Complainant

    Examination in chief

36. At the time of giving evidence, KN was 18 years of age. She was born in Vietnam on 17 January 2005.[8]

    [8]     T16.6-9.

37. Her mother is KXN who lives in Vietnam.[9]

    [9]     T16.10-13.

38. KN has two brothers. Her oldest brother is XLN.  Her middle brother is XQN, also known as Vince.[10]

    [10]   T16.14-21.

39. KN’s parents separated when she was about two years of age and still living in Vietnam.[11] After her parent’s separation, KN lived with her mother and saw her father on weekends.

    [11]   T16.24-29.

40. In 2014, KN came to Australia with her father and brother Vince when she was nine years of age.[12] When they first arrived, they moved in with KN’s great aunt and remained there for about two months. At that house KN, her father and Vince slept in the same room.[13]

    [12]   T16.30-37.

    [13]   T17.3-13.

41. When KN came to Australia she could not speak or write English. When she went to Kilkenny Primary School there was a special program for kids who had just moved to Australia. KN learned English from there.[14]

    49 Days Road, Croydon Park

    [14]   T50.7-12.

42. After leaving the great aunt’s house, KN and her family lived at 49 Days Road, Croydon Park.[15]

    [15]   T17.27-31.

43. Initially, KN’s oldest brother, XLN, remained in Vietnam. XLN joined the accused, KN and Vince in Australia once they had moved to the Days Road address.[16]

    [16]   T17.14-31.

44. KN was shown a document which she recognised had her name and signature written in her handwriting dated 26 August 2021. KN identified it as a document she drew of the floor plans of the houses in which she lived with her father. The floorplans were tendered as Exhibit P3.

45. The floorplan numbered 1 on Exhibit P3 was 49 Days Road.

46. With reference to the floorplan, KN identified the room in which a tenant stayed. That tenant’s name was Mr Loc. He was not related to her. He lived there for whole time her family lived at that address.[17]

    [17]   T18-T19.

47. KN also identified two rooms marked ‘Brother room’ where her brothers lived. Her oldest brother was in the room next to the tenant’s room. KN identified her middle brother’s room as the one next to the room marked ‘Dad’s room’.[18] KN said that at Days Road, there was no separate bedroom for her.  She shared a bedroom with her father.[19] There was only one bed in the room and they slept on the same bed every night.[20]

    [18]   T19.5-11.

    [19]   T19.12-18.

    [20]   T50-T51.

48. While at Days Road, her father worked in farming.[21] KN said her brothers XLN and Vince also worked with her father in farming.[22] Her father worked every day except when it was raining. He was involved in seasonal work cutting apples and picking cherries.[23]

    [21]   T19.20-22.

    [22]   T20.1-13.

    [23]   T19.31-33.

49. The tenant, Mr Loc, did not have any work that KN was aware of.[24]

    First incident

    [24]   T19.36-38.

50. KN identified the first alleged sexual incident involving her father, which occurred at the Days Road address. KN could not remember exactly what time of year it was, but it was around 2014 to 2015. She said she was not yet going to school because it was in December and it was school holidays.[25]KN said she was sitting at her computer in her dad’s bedroom. On Exhibit P3, she marked the location of the computer desk.[26]

    [25]   T20.33-38.

    [26]   T20.19-24.

51. KN also identified a booklet of 12 photographs tendered as Exhibit P4 depicting 49 Days Road, Croydon Park. KN said that photograph number three was taken inside her father’s room. The headboard of the queen bed was up against the fireplace. The computer desk was on the opposite wall to the wardrobe shown in the photograph.[27]

    [27]   T28.7-32.

52. At the time of the incident, KN said that she was wearing pyjamas, namely a long sleeve top with polka dots and long pants. Her father was wearing a T-shirt and shorts, which KN described as ‘at home clothes’.[28]

    [28]   T21.1-6.

53. KN said that she was on the computer and her father was in the room with her. Her father told her to get on his bed. She did what he told her to do. He was already on the bed.[29]

    [29]   T21.8-21.

54. When she got on the bed, her father was on her right side and she was on the left side of the bed. He was under a blanket and she got under the blanket too.[30] KN was laying on her back.[31] Her father was sitting up with his legs straight out.[32]

    [30]   T21.22-T22.5.

    [31]   T26.38-T27.5.

    [32]   T21.29-30.

55. KN said that her father grabbed her right hand and placed it on his penis and made her touch it. KN demonstrated how she was holding his penis and agreed that she had wrapped her fingers around his penis.[33] The accused’s hand was wrapped around her hand the whole time and he was demonstrating how to masturbate him. She said that he made her stroke his penis up and down.[34]

    [33]   T22.13-23.

    [34]   T22.36-38.

56. KN could not remember how long that went on for but estimated around five minutes.[35]

    [35]   T23.1-3.

57. At that point, the accused had his pants pulled down to his knees, but still had his top on.[36]  KN did not see how the accused’s shorts came to be around his knees. The blanket was flipped over and the accused was no longer under the blanket.[37]

    [36]   T23.7-9.

    [37]   T23.10-17.

58. When the accused first put KN’s hand on top of his penis, she did not know what it was.[38]

    [38]   T27.16-21.

59. KN said that the accused also put his hand up her shirt onto her chest. He placed his hands around her nipples and rubbed in a circular motion for about 30 seconds. While he did this, he still held her hand showing her how to masturbate his penis.[39]

    [39]   T23.19-35.

60. KN said that after he touched her nipples, he moved his hand down to her vagina.[40] KN still had her clothes on. The accused put his hand under her pants and inside of her underwear.[41] His hand was on the ‘outside’ of her vagina, meaning that his hand was in contact with her vagina while rubbing it. He did not put his finger in her vagina.[42]

    [40]   T23.36-38.

    [41]   T24.4-11.

    [42]   T24.12-19.

61. While rubbing her vagina, he was continuing to show her how to masturbate him. KN said that he rubbed her vagina until he ejaculated.[43]

    [43]   T24.38-T25.2.

62. KN said that at first, his penis was ‘squishy’ but then it got harder.[44]

    [44]   T25.12-13.

63. At the time of this incident, KN did not understand ejaculation. She described that when he ejaculated, ‘white stuff’ came out of his penis.[45]

    [45]   T25.14-19.

64. KN said that her father then took ‘some tissue’ and cleaned himself up.[46] After wiping off, he put his clothes on and walked out of the room. He did not say anything as he left and pretended like it never happened.[47]

    [46]   T25.20-21.

    [47]   T25.32-38.

65. After this, KN said she was just lying there. At the time, KN felt confused and scared.[48] She was thinking, ‘what just happened’ and ‘why is he doing this to me’. KN remembers that she knew that it was not normal.[49] Aside from telling KN to get on the bed, the accused did not say anything else throughout the incident. KN said she just did what he told her to do. She did not say anything to him.[50]

    [48]   T25.22-23.

    [49]   T26.7-13.

    [50]   T25.24-31.

66. At the time of this incident, KN remembers that the tenant was home but not in the house. He was in the backyard doing something. Her two brothers were not home.[51]

    [51]   T26.15-22.

67. KN was asked when she was sitting at the computer and the accused told her to get on the bed, whether the accused said anything more to her about what she should do when she got on the bed. KN said that it was the first time it happened and she did not expect anything like that to happen. When she got on the bed, she lay on her back, but that was not because of anything her father had said to her.[52]

    Second incident

    [52]   T26.30-T27.5.

68. KN said that around two days after the first sexual act there was another incident.[53]

    [53]   T28.33-T29.1.

69. KN said that at the beginning, she was sitting outside somewhere. The incident occurred at the same house at Days Road. KN was sitting in Vince’s bedroom.[54]

    [54]   T29.2-7.

70. The incident began when her father said, ‘go into my room now’.[55] KN felt scared because she did not know what was going to happen. There was no one at home, so she did what her father told her. KN went into her father’s room and he followed her from Vince’s room. Her father was behind KN when she went into his room. Her father then locked the door.[56]

    [55]   T29.8-11.

    [56]   T29.24-33.

71. Her father told her to get on the bed and KN did so. After her father had locked the door, he sat on top of his bed. He told KN to come and lay on the bed. Her father was wearing ‘at home clothes’ again, namely pyjamas, shorts and a cotton T-shirt.[57] KN did not remember what she was wearing.[58]

    [57]   T30.4-11.

    [58]   T31.33-37.

72. When KN first got on the bed, she was sitting on the edge of the bed with her legs over the edge.[59]

    [59]   T30.12-T31.8.

73. Her father was sitting on the bed with his legs straight out while leaning on the bedhead.[60] While on the bed, her father pulled down his pants and told her to sit on top of his penis. Before her father told her to sit on top of his penis, he took off her pants. Her underwear was also off.[61] He said, ‘come, come sit on top of me’.[62] KN did what he told her.[63]

    [60]   T31.22-28.

    [61]   T31.14-18-T32.7-10.

    [62]   T31.30.

    [63]   T31.31-32.

74. KN sat on top of the accused. His penis went under her vagina but did not go into her vagina. She agreed that her vagina was positioned above his penis as she sat on him. His penis was under her vagina and was touching it.[64] The accused still had his T-shirt on.[65]

    [64]   T32.30-36.

    [65]   T33.2-3.

75. After KN sat on the accused, he was trying to insert his penis into her vagina. After a few minutes, he was successful. KN said that it hurt ‘just a little bit’ but did not hurt that much.[66] She said she could feel his penis in her.[67]

    [66]   T33.10-12.

    [67]   T33.9-12.

76. After the accused put his penis in her vagina, he told her to move her body. He told her to ‘ride him’. He said to move ‘up and down. Jump on it, bounce’.[68]

    [68]   T33.16-18.

77. At this time, KN said she was really scared and did not know what was going to happen to her, but she just did what the accused told her.[69]

    [69]   T33.19-21.

1. This did not go on for long. It came to an end when the accused was frustrated that KN did not know what to do, so he told her to get off him.[70] She got off.[71] KN knew he was frustrated from the way he looked and from what he said.[72] The accused then made her suck his penis. KN was questioning him by saying, ‘What is this? What are you doing?’. In response, her father told her that he created her body and ‘he can have it whenever he likes, he can use it whenever he likes’.[73]

   [70]   T33.24-26.

   [71]   T33.27-28.

   [72]   T37.19-31.

   [73]   T33.33-36.

2. The accused told KN to suck on his penis, so she put her mouth over his penis and started sucking on it, like how she would suck on a straw.[74]

   [74]   T34.1-4.

3. This did not go on for long. KN said she did not satisfy him, so he told her to stop sucking on it. After this, he told her to suck his balls/testicles. He told her to suck the skin of his ‘balls’.[75] The accused told her, ‘Do not suck it on – too much, only, only suck on the skin outside, do not, do not use too much pressure’.[76]

   [75]   T34.8-11.

   [76]   T34.16-19.

4. While KN was sucking his testicles, the accused’s body was still in the same position. KN was the one moving.[77]

   [77]   T34.37-T35.4.

5. KN was kneeling on her knees on the bed while trying to suck his balls.  The accused was laying on his bed. She put her head near his private areas and sucked his balls. Her knees were closest to his bottom near the pelvis area. He was on her right side and she was on the left. Her whole body was on the bed. She was turning sideways to kneel on the bed and suck his balls.[78]

   [78]   T35.5-T36.12.

6. KN sucked on his balls for under five minutes, until he ejaculated. His hand was rubbing his penis while she was sucking his balls.[79] When he ejaculated, the ejaculate got on his hands.[80] The accused cleaned up the ejaculate with a tissue.[81]

   [79]   T34.20-22.

   [80]   T34.29-32.

   [81]   T36.13-16.

7. The accused told KN that she should try to drink his semen because it ‘gave you beautiful skin’. He told her that her mum did it and, ‘that’s why she got nice skin’. He told her that she should practice drinking his semen.[82]

   [82]   T36.20-24.

8. After wiping himself off with the tissue, the accused did not say anything. He just left the room and pretended like it never happened. He had put his clothes back on.[83]

   [83]   T36.25-28.

9. After he left, KN sat in his room and cried. She was feeling as though he was not her father; he was not acting like it.[84] KN put on her pants and underwear and sat on the bed and cried.[85]

   Subsequent incidents

   [84]   T37.4-6.

   [85]   T37.7-11.

10. KN said that from then on, her father kept making her have sex with him continuously. She did not remember separate occasions because it was like a routine at that point.[86]

    [86]   T38.37-T39.5.

11. At the Days Road address, her father would engage in sexual acts with KN four to five times a week. There was a routine of sexual acts whereby her father would tell her to get into his room, he would lock the door and he would perform sexual acts on her. He would insert his penis into her vagina every time. He would sometimes make her suck his penis and sometimes he would suck/lick her vagina.[87] The sucking or licking of her vagina would occur one to two times a week. When he could not get his penis in her vagina, he would try to lick her vagina to make it easier for his penis to go in.[88]

    [87]   T39.25-38.

    [88]   T40.6-10.

12. KN said that there were no other sexual acts that occurred in addition to those.

13. The accused would tell KN to go to his room and she would do as she was told. If she did not do what he told her, he would follow her around making her uncomfortable until she gave in.[89]

    [89]   T41.3-9.

14. KN was asked whether the accused said anything to her about what might happen if she told anyone.[90]He told her she would get in ‘big trouble’ if she said anything. He told her, ‘Don’t tell anyone’, and ‘Don’t let nobody know about this’.[91]

    [90]   T40.33-34.

    [91]   T40.38-T41.1-2.

15. At Days Road, the routine of sexual acts happened in her father’s bedroom. KN remembered just one occasion where it occurred outside of her father’s bedroom. The tenant had moved out and her father was painting the walls and rearranging the room. She remembered that he was using a roller to paint the walls white. He told her to come to him. He took off his pants and made her suck his penis. She was kneeling down and he was standing up painting the walls. She did this for five minutes. After this, he pulled her and told her to come to his bedroom. In his bedroom, he had sexual intercourse with her by inserting his penis into her vagina.[92]

    [92]   T41-T42.

16. On the occasions that the accused made her have penile-vaginal intercourse, he would insert his penis into her vagina until he ejaculated.[93]

    [93]   T42.18-24.

17. Before KN got her period, the accused would ejaculate inside her vagina.  He would then clean up using a tissue to wipe her vagina and then clean up after himself.[94] After she got her period, he would ejaculate outside of her vagina, on her pelvis area below her lower tummy.[95] KN got her period when she was in year 6 when she was around 11 or 12 years of age. By that time, they had moved to a different address.[96]

    [94]   T42.25-31.

    [95]   T60.36-T61.6.

    [96]   T42.32-38.

18. While at the Days Road address, KN started attending Kilkenny Primary School.[97]

    [97]   T42.15-17.

19. Her older brother XLN came to live with them at Days Road when he arrived in Australia a few months after the accused, KN and Vince. Her older brother was living at the Days Road address at the time of the first incident when her father touched her inappropriately.[98]

    [98]   T44.28-T45.6.

20. The incidents occurred often around the daytime when her brothers were working. Sometimes it would occur in the night-time. At this time, KN was attending school from 8:40am to 3:00pm and would arrive home at around 3:30pm.[99]The incidents would occur after school before her brothers got home from work, or around bedtime when everyone was in their room and she was sleeping.[100]

    17 Murchison Street, Mansfield Park

    [99]   T45.24-33.

    [100] T45.34-38.

21. The accused, KN and her brothers moved from Days Road, Croydon Park to 17 Murchison Street, Mansfield Park towards the end of the year while she was still attending Kilkenny Primary School.[101] KN stayed at Murchison Road until after she finished year 5 at Kilkenny.[102]

    [101] T43.1-7.

    [102] T50.16-17.

22. While at Murchison Street, XLN worked at a sushi restaurant. KN could not remember if he went to university when living there.[103]

    [103] T71.29-T72.3.

23. KN could not remember if her brother Vince was still working in farming or doing something else when they moved to Murchison Street.[104]

    [104] T72.4-9.

24. KN identified the floorplan of Murchison Street which is marked number 2 on Exhibit P3. She identified her father’s room and marked the position of his bed. She marked the tenant’s room which was next to her father’s room. This was a different tenant to the tenant who lived at Days Road. It was a mother and daughter who shared the same room.[105] Both of KN’s brothers shared the room marked ‘Brothers Room’.[106]

    [105] T44.9-12.

    [106] T46.9-10.

25. KN did not have her own bedroom at Murchison Street. She slept in her father’s room or her brothers’ room. There were multiple mattresses in the brothers’ bedroom. KN did not have her own mattress but the mattress in the brothers’ bedroom was big so they were spaced out when they slept. At Murchison Street, she mainly slept in her father’s room. There was just one bed in that room.[107]

    [107] T50.34-T51.24.

26. KN identified a bundle of nine photographs of 17 Murchison Street, Mansfield Park (Exhibit P5).[108] By reference to photograph eight in Exhibit P5, KN said that her father’s bedhead was up against the window/curtains.  The bed was centred with space on either side of the bed.[109] There was a desk with a computer in the room. This was to the left of the bed if you were looking at the bed.[110] With reference to photograph 8 of Exhibit P5, the desk would have been to the left of photograph 8.[111]

    [108] T50.

    [109] T61.23-36

    [110] T61.37-T62.6.

    [111] T62.10-11.

27. At Murchison Street, the sexual acts always occurred in her father’s room.[112]

    [112] T50.1-6.

28. KN said that the frequency of sexual acts with her father stayed the same at the Murchison Street address, namely four to five times a week.[113] The type of sexual acts also stayed the same. There was penile-vaginal intercourse all of the time. KN would suck his penis most of the time. He would suck or lick her vagina sometimes.[114] He would put his hand on her vagina and rub her vagina every time he tried to have intercourse with her.[115] He would rub her vagina every time at both Days Road and Murchison Street.[116]

    [113] T46.14-18.

    [114] T46.24-38.

    [115] T47.5-8.

    [116] T61.7-14.

29. In relation to the first time the accused rubbed her vagina at Days Road, KN was asked whether that action was the same or different compared to when she was at Murchison Street. KN said that, ‘now that he keep on having sex with me, he don’t have to do it for too long. He can just check if I’m prepared and then he would just enter’.[117] The first time he touched her vagina for a long time, but once it became a frequent routine, he would not touch her for long before inserting his penis into her vagina.[118]

    Subsequent incidents of sexual acts

    [117] T47.9-16.

    [118] T47.16-20.

30. On the second occasion of sexual activity, where the accused inserted his penis into KN’s vagina, he tried to put his penis into her vagina by using his hands. On subsequent occasions, he would use his hand again at the base of his penis and would try to slide his penis into her vagina. KN indicated a kind of forward guiding motion with her hand.[119]

    [119] T47.31-T48.8.

31. During the instances of penile-vaginal intercourse after the first occasion where the accused told KN to sit on him, KN would often lay on her back and the accused would be on top of her. They would be facing each other.[120] That was their position most of the time.[121]  Sometimes she would lay on her back and he would enter. Sometimes she would be in a position where her back was facing a pillow and the accused was behind her. He would insert his penis into her vagina from behind, whereby they would both be facing the same way. KN would be lying down on her stomach. This happened rarely, but it did happen.[122]

    [120] T48.20-27.

    [121] T48.15-19.

    [122] T48.28-32.

32. KN did not remember other positions where they had penile-vaginal intercourse.[123]

    [123] T48.33-36.

33. KN said there was no particular order to the sexual acts.[124]

    [124] T62.15-24.

34. KN could not remember whether the first incident of penile-vaginal intercourse was the only time intercourse occurred in that position whereby she was sitting on top of him.[125]

    [125] T49.16-26.

35. The act of the accused causing KN to masturbate his penis by using her hand did not happen again after the first alleged sexual act at Days Road. After he had shown her how to suck his penis, and after he inserted his penis into her vagina, he would not make KN masturbate him using her hands because most of the time he would insert his penis and make her suck his penis.[126]

    [126] T49.22-26.

36. There were other occasions when he masturbated himself in her presence. That happened some of the time.[127]

    [127] T49.30-38.

37. There was not a time when she physically resisted the sexual acts at Days Road.[128]

    [128] T61.18-22.

38. KN described her father’s penis as small.[129]

    44 Liberty Grove, Woodville Gardens

    [129] T61.15-17.

39. After living at the Murchison Street address, the accused, KN and her brothers moved to 44 Liberty Grove, Woodville Gardens.[130]

    [130] T62.25-29.

40. While living at Liberty Grove, KN attended Woodville Gardens Primary School.  She was 11 years old and in year 6.[131] She stayed at Liberty Grove for the whole of year 6.[132]

    [131] T62-63; T69.

    [132] T74.9-10.

41. At Liberty Grove, her father was doing seasonal farm work. He did that type of work at Days Road, Murchison Street, Liberty Grove and at the next address they resided at. The number of days he worked depended on the season. He would leave the house by 5:00am and would come back around 5:00pm.[133]

    [133] T70-T71.7.

42. While at Liberty Grove, XLN worked in a sushi restaurant for some time. He was also enrolled at university. His hours of work and university were irregular and KN did not remember them.[134]

    [134] T71.12-25.

43. At Liberty Grove, Vince worked at a Vietnamese restaurant and studied at Woodville High School.[135] KN could not remember the hours Vince worked at the restaurant but he did not arrive home until around 10:00pm or 11:00pm. She did not remember how many times he worked in a week but he did work weekends.[136] KN did not know whether the tenant, Mr Loc, was still doing farm work at Liberty Grove.[137] The other tenants were not permanent.[138]

    [135] T72.10-16.

    [136] T72.21-28.

    [137] T72.29-34.

    [138] T72.35-37.

44. At Liberty Grove, the frequency of sexual acts stayed the same, namely four to five times a week.[139] The frequency of penile-vaginal intercourse was the same, namely all the time. The frequency of the accused making KN suck his penis was the same, which was most of the time. The frequency of the accused licking her vagina happened more often at Liberty Grove. The frequency of the accused rubbing her vagina stayed the same, which was every time. The frequency of her father masturbating himself in her presence stayed the same, which was some of the time.[140]

    [139] T63.5-12.

    [140] T63-64.

45. There were other acts of sexual abuse at the Liberty Grove address.

46. KN described an occasion where the accused was trying to put KN in a position where her face was ‘facing his penis’ and her vagina was ‘facing his face’. The accused was telling her to lick his penis while the accused was licking her vagina.[141] KN did not remember whether this act occurred for the first time at their residences in Woodville Gardens, but she did not remember it happening before moving to Liberty Grove. This sexual act occurred more than once at Liberty Grove, but not a lot.[142]

    [141] T64.17-20

    [142] T65.3-7.

47. KN said that they lived at that address for a year until she finished the whole of year 6.[143]

    [143] T64; T74.

48. No other sexual abuse occurred at Liberty Grove.[144]

    [144] T64.33-35.

49. KN identified floorplan number three in Exhibit P3 as her father’s bedroom at 44 Liberty Grove. KN had marked her brothers’ rooms and her father’s room. KN had marked a front door in her father’s room. She explained that his bed was in the living room where the front door was situated. This room did not have a privacy door, you could just walk in and see the accused’s bed in the lounge room.

50. KN was shown Exhibit P6 and identified photograph 3 as a photo of the loungeroom that had been turned into her father’s bedroom.[145] In reference to the photo, the front door was on the opposite side of the heater. His bedhead was against the heater and under the air-conditioner. The side of the bed was up against the wall under the window. The bed was in the corner of the room.[146] On the floorplan contained in P6, KN identified the room marked ‘Lounge’ as the room her father slept in as a bedroom.[147]

    [145] T66.35-38.

    [146] T66-T68.

    [147] T68.22-29.

51. When people entered the house, they would usually enter from the front gate shown in photograph 13 in Exhibit P6 through the back door that leads to the carpark. That door lead into the laundry room, that then went into the kitchen and dining area.[148]

    [148] T68.36-T69.10.

52. KN identified the tenant’s room in the top left of the diagram in Exhibit P3. The tenant was the same tenant that stayed at Days Road – Mr Loc.[149] There was another tenant that stayed in the middle bedroom but KN said they had people constantly moving in and out, so she did not remember any of them.[150]

    [149] T69.22-27.

    [150] T69.28-32.

53. At Liberty Grove, KN usually slept in Vince’s bedroom. If there was no tenant, she would sometimes sleep in the tenant room. The sexual acts would mostly occur in her father’s bedroom. They sometimes occurred in Vince’s bedroom. KN did not remember if sexual acts occurred in any other room.[151]

    33 Essex Street, Woodville Gardens

    [151] T73.12-38.

54. KN said their next address was 33 Essex Street, Woodville Gardens.

55. While living at this address, KN was in year 7 and was around 12 years old. She was still attending Woodville Gardens Primary School.

56. KN identified the floorplan of the house at 33 Essex Street on Exhibit P3. She identified where she marked her brothers’ bedrooms. The room that she marked with the word ‘Sister’ was her room. KN explained that in Vietnamese culture she would be referred to as sister.[152]

    [152] T74.29-34.

57. KN identified her father’s bedroom on the floor plan. She said the rectangle drawn in that room represents his bed with the bedhead up against the internal wall. The bedhead of her bed backed onto the other side of the same wall in the next room.[153]

    [153] T75.1-18.

58. While living at Essex Street the frequency of the sex acts stayed the same, namely four to five times a week.[154]

    [154] T76.4-10.

59. Her father would indicate to KN that he wanted to engage in sex by knocking on the internal wall between their rooms. That occurred four to five times a week.[155]

    [155] T76.4-29.

60. KN explained how she came to understand her father’s intentions when he first knocked on the wall. She said when he first knocked, she did not understand so she did not go to his room. The accused then came into her room and told her to go into his room. This routine continued. KN said every time her father knocked, she would go to his room. KN described an incident where the accused lost his keys and he borrowed her set of keys to make a new key. At that time he made a copy of her room key. Every time he knocked on the wall and she did not go to his room and had locked her door, he would use the key to unlock her room and tell her to get into his room.[156]

    [156] T76.17-29.

61. At Essex Street, all the sex acts occurred in the accused’s room.[157]

    [157] T76.31-35.

62. The sex acts always involved penile-vaginal intercourse.

63. The accused would make her lick or suck his penis the same frequency as at the previous addresses, which was most of the time. He would lick her vagina at the same or at an increased frequency as he had done at Liberty Grove. He would rub her vagina at Essex Street with the same frequency as he had done before. He would masturbate himself at Essex Street at the same frequency as he had done before. KN could not remember if at Essex Street the oral sex had occurred with her sucking his penis and him licking her vagina at the same time while facing each other.[158]

    [158] T76.31-T77.23.

64. KN could not remember any other sexual acts her father made her perform at that address.[159]

    Ambulance incident

    [159] T77.24-26.

65. KN remembered one time where her father’s leg was hurting and he tried to have sex with her that day. She said she ‘slightly pushed him away’ but he had sex with her anyway. The next day his leg hurt and he could not get out of bed. KN was at school and he called the school. A teacher told KN there was a family emergency and dropped her home. When she arrived home an ambulance was already there. She got into the ambulance and went to the hospital. Her father was a patient in the ambulance.[160]

    [160] T78.8-27.

66. At some point KN’s oldest brother, XLN, moved out of the Essex Street address. KN and Vince moved out less than two months after this.[161]

    [161] T78.29-T79.6.

67. When living at Essex Street, KN could not remember XLN going to work but he sometimes worked on the farm with her father. He was no longer working at the sushi restaurant. XLN was still doing studies, the same as before, when they lived at Liberty Grove. XLN was working irregular hours at that time.[162]

    [162] T79.13-36.

68. When they moved to Essex Street, Vince’s work arrangements changed. He would sometimes do farm work with her father. The work was seasonal, and the days and hours would vary.[163]

    [163] T79.37-T80.12.

1. The hours her brothers were out of the house for work varied.[164]

   [164] T80.16-21.

2. KN gave evidence that there was no tenant at Essex Street.[165]

   Disagreements over money and moving out of the accused’s home

   [165] T80.22-26.

3. KN understood that her oldest brother XLN moved out due to a disagreement with her father. She did not know what the disagreement was about.[166]

   [166] T80.30-35.

4. KN said the reason that she and her brother Vince moved out of Essex Street was because of a disagreement between Vince and her father. She did not know what that disagreement was about.[167]

   [167] T80.36-T81.12.

5. KN understood that there was some disharmony and disagreements about financial problems. The source of the financial problems was that the bills could not be paid on time. She did not know who it was that could not pay the bills.[168]

   [168] T81.13-29.

6. KN said that she could not say why the household bills were not paid on time because they never talked to her about money problems.[169]

   [169] T81.30-33.

7. KN said she was aware that there were money problems but was not sure why.[170]

   [170] T81.34-36.

8. KN knew that the money problems were her father’s. KN knew that her father’s money problems were because of gambling.[171]

   [171] T81.37-T82.5.

9. KN said that when her father and two brothers had a talk together and argued, she was not allowed to be in the same room. She was not allowed to listen to the conversation.[172]

   [172] T82.6-12.

10. KN moved out with Vince because Vince did not think it would be best for her to stay with her father.[173]

    Living at the St Clair premises with Vince

    [173] T82.16-19.

11. KN moved to the St Clair address with Vince almost straight after they got back from a trip to Vietnam.[174]

    [174] T86.5-12.

12. She and Vince rented the premises at St Clair. She was 13 years old and had started year 8 when they moved to St Clair.[175] It was the beginning of year 8 and she was going to Woodville High School. [176] It was Vince who arranged the rental property for them.[177]

    [175] T82.25-26.

    [176] T82.29-31.

    [177] T82.20-27.

13. The St Clair premises had two bedrooms.  It was just KN and Vince living there and they had separate rooms.[178]

    [178] T83.8-14.

14. The sexual abuse by her father did not continue at St Clair.[179]

    [179] T82.32-34.

15. KN gave evidence that there was one occasion where her father was inappropriate at St Clair.[180]

    [180] T82.35-37.

16. Her father came over to look around at the new house. Vince was not at home. Her father told KN to get into her room and take off her pants. He then undressed himself. He was about to insert his penis into her vagina when Vince arrived home, so nothing happened.[181]

    [181] T83.2-7.

17. Before Vince interrupted her father, he had got undressed and taken off KN’s pants. They were in her room and were both on the bed.[182] She was lying on her back and he was on top of her facing her. He was touching her breast and he was about to insert his penis into her vagina. It happened quickly and then her brother came home.[183] She knew her brother had come home because she heard the door; it made a clicking sound.[184]

    [182] T83.25-30.

    [183] T84.9-12.

    [184] T84.13-16.

18. KN then put on her pants and got dressed. The accused quickly pulled up his pants and walked outside like nothing happened.[185]

    [185] T84.18-19.

19. While living at St Clair KN was unemployed. Her brother and father were supporting her financially. Her father gave her money every two weeks. He gave the money to her through her brother.[186]

    [186] T84.20-30.

20. Her father also gave her money directly when she asked for it. That would happen every week. The amount depended on how much she asked for, around $50-$200.[187]

    [187] T84.31-38.

21. KN did not have a bank account and the accused would often come over to her house and gave her cash directly.[188]

    [188] T85.1-5.

22. KN would ask for money to hang out with friends and buy some new shoes, or some new clothes. When hanging around with friends she agreed she would purchase food and entertainment, that sort of thing.[189]

    [189] T85.11-23.

23. KN operated a mobile phone. Her father bought her the phone and paid the ongoing phone bill.[190]

    Vietnam trip

    [190] T85.24-31.

24. Around December 2017, before moving into the St Clair premises, KN went back to Vietnam with her brother Vince.[191] They returned around 19 January 2018. The purpose of the trip was to visit their mother.[192]

    [191] T85.33-T86.2.

    [192] T86.3-4.

25. When they returned from Vietnam, they started packing straightaway and moved into the St Clair premises within the next week after returning.[193]

    [193] T86.5-12.

26. The money that her father gave KN continued up until the day she reported the matter to police in May 2021.[194]

    Initial complaint

    [194] T86.13-23.

27. KN said the first person she told about what her father was doing to her was her friend, YL.[195]

    [195] T86.24-29.

28. She first met YL at Woodville Gardens Primary School. They both did year 6 and year 7 at that school.[196] They met in year 6 and became best friends in the middle of year 6.[197]

    [196] T86.33-36.

    [197] T86.38-T87.6.

29. They both later attended Woodville High School.[198]

    [198] T87.7-8.

30. The first time KN told YL of the offences was in class. They were at High School. KN could not remember whether it was in year 9 or year 10.[199]

    [199] T87.9-19.

31. KN gave evidence that the conversation occurred in either the Science or IT class, because they had the same teacher for those classes.[200]

    [200] T87.20-26.

32. The conversation came up when KN was feeling sad and was not having the best day.[201]

    [201] T87.27-29.

33. She told YL, ‘I’m going to tell you a secret, don’t tell anyone’. KN said it was easier to tell YL because she was not her family.[202]

    [202] T87.29-32.

34. KN could not remember the exact words she said to YL. She remembers the conversation was short. [203]

    [203] T88.1-7.

35. KN said that in her memory she told YL, ‘Can you please keep this secret?’. YL said yes. KN then told her, ‘I got sexually abused at home’. YL asked her who abused her and KN said, ‘My dad did’.[204]

    [204] T88.7-10.

36. KN said that YL asked her if she meant that her father inserted his penis into KN’s vagina. KN replied, ‘Yes he did’.[205]

    [205] T88.21-23.

37. KN said that she did not say anything else to YL about the sexual abuse.[206]

    [206] T88.27-28.

38. KN said that she did not describe to YL any of the sexual acts performed on her by her father or which he made her perform on him. KN said she only told YL that he inserted his penis into her vagina.[207]

    Elaboration of complaint

    [207] T88.33-38.

39. KN said the second person she talked to about the sexual abuse was her brother Vince.[208]

    [208] T89.2-3.

40. The conversation began in the kitchen at the St Clair premises. They both then moved to Vince’s bedroom to talk privately.[209]

    [209] T89.12-17.

41. That conversation happened around year 9 to 10. KN was not sure what time of year it was.[210]

    [210] T89.18-22.

42. KN gave evidence about what led up to her telling her brother. She stated it was because she was not doing good at school. She was skipping school a lot and her brother asked her if she was okay. He asked, ‘What happened’.[211] KN told him, ‘Can he please keep a secret?’. After he promised he would keep a secret, she told him what happened; that she had been ‘raped by my dad’. KN was begging Vince not to tell anyone.[212]

    [211] T89.24-26.

    [212] T89.26-30.

43. KN could not remember the exact words she said to her brother.[213]

    [213] T89.31-33.

44. KN said she straight up told Vince that her dad raped her, nothing more. KN said that she used the word ‘rape’.[214]

    [214] T90.1-7.

45. After she told Vince she had been raped by her dad they just sat there quietly. Her brother told her that he was confused and that he did not know what to do. He said, ‘this is a lot’.[215]

    [215] T90.11-16.

46. Her brother did not ask her anything after that.[216]

    Complaint to police

    [216] T92.15-20.

47. KN gave evidence that she spoke to her mother in Vietnam by telephone around Mother’s Day in May 2021. Soon after the conversation, around 16 May 2021, she reported what her father did to her to the police.[217]

    [217] T92.25-34.

    Cross-examination

    Family relationships

48. Before she moved to Australia, KN and Vince lived with their mother in Vietnam. The accused would sometimes see her and take her out on weekends.[218]

    [218] T93.16-18.

49. KN is close with Vince and she gave evidence she still lives with him.[219] He has helped her with the court proceedings. He has spoken to the police on her behalf to arrange appointments and has gone with her to meetings with the police.[220]

    [219] T93.27-37.

    [220] T93.38-T94.8.

50. KN was close with her mother between 2014-2021.[221] KN would call her twice a week.[222]

    Days Road address

    [221] T93.24-26.

    [222] T139.5-6.

51. KN went to Kilkenny Primary School.[223]

    [223] T101; T119.

52. At 49 Days Road, KN would rarely sleep in Vince’s bedroom in the rear room of the house. She did not remember her father sleeping with her older brother.[224] KN remembers her brothers sleeping together and she would sleep in the accused’s bedroom.[225]

    [224] T94.26-32.

    [225] T94.29-32.

53. The accused’s bedroom door had a lock, but KN does not remember what kind of lock, other than it being a key lock. The door could be locked from the inside. A key was required to lock it from the outside.[226]

    [226] T99.27-T100.13.

54. KN gave evidence the offending mostly occurred after school.[227]

    [227] T101.38-T102.5.

55. The accused worked as a fruit picker and farm hand. When he left for work, he would leave at about 5:00am or 6:00am and return at about 6:00pm. KN did not remember if Mr Loc would work with the accused.[228] Her eldest brother, XLN, worked with the accused when he arrived in Australia.[229] The accused also got Vince a fruit picking job. The accused would work at different times to her brothers.[230] They would work in different places together.[231]

    [228] T103.8-20.

    [229] T104.19-23.

    [230] T104.24-32.

    [231] T105.7-9.

56. Vince was attending English Secondary school and then moved to Woodville High School.[232] KN did not remember if Vince came straight home after school.[233]

    [232] T103.35-38.

    [233] T104.2-4.

57. KN agreed that it was rare for the offending to occur outside of the accused’s bedroom. She agreed that the first time she mentioned the incident that occurred while her father was painting a room at Days Road was during her evidence in court.[234] She disagreed that this was because she was making it up. In re-examination, when asked why she did not mention to police the incident that occurred when her father was painting the walls, KN explained that this incident involved oral sex, and she had already given a statement to police that stated she had performed oral sex on her father, therefore did not mention this occasion.[235]

    [234] T114.1-19.

    [235] T159.2-9.

58. KN’s grandfather also lives in Australia.[236] When she attended the English program at Kilkenny Primary School, buses were provided to drop the students off and take them home. When she finished that course at the end of the year, they stopped providing that bus service. At the end of the year, her grandfather would sometimes pick her up and take her home.[237] He continued to do that until she started attending Woodville Primary School. She started riding her bike and walking to school after that.[238]

    [236] T119.4-6.

    [237] T119.10-16.

    [238] T120.7-9.

59. KN did not recall that when the accused was at work, Mr Loc would often be home. Mr Loc would sometimes go out of the house, but he would usually be at home when he was not working with the accused.[239]

    Murchison Street address

    [239] T120.14-29.

60. At Murchison Street, KN said she sometimes slept in her brothers’ room. She disagreed that she slept with them all of the time.[240]

    [240] T95.8-10.

61. The accused’s bedroom had a door with a door handle. She was not sure if there was a lock.[241] The offending mostly occurred after school. When KN was on school holidays, it would also occur during the day – in the morning, around lunchtime and before her brother got home.[242]

    [241] T100.22-23.

    [242] T102.4-19.

62. The accused would leave the house about 5:00am to go to work and return at about 6:00pm.[243] Vince would work with the accused from time to time.[244]

    [243] T103.3-18.

    [244] T104.5-7.

63. KN did not remember if the tenant there (who was a mother with a daughter) had a disability.[245] She remembered seeing the mother walk. The mother was not home quite often.[246]

    [245] T120.36-38.

    [246] T121.1-3.

64. KN did not remember how long she lived at Murchison Street, but she was still wearing her Kilkenny school uniform. In her mind, they lived there for a short time. She did not know what the daughter of the tenant did, they did not communicate much. KN is not in contact with them now. She was not aware if the mother had passed away.[247]

    [247] T121.11-19.

65. KN gave evidence that the other tenants would sometimes stay for months or weeks, not permanently. She recalled three or four tenants. The tenants did not talk to her, so she did not know when they were going to be home or not. KN did not know their routines.

    Liberty Grove address

66. The accused’s bed was in the corner of the bedroom near the heater. KN stated that this was the bed on which the accused did sexual things to her. She said she made a mistake when drawing the bed in front of the front door on Exhibit P3. She maintained that the bed was in the corner of the room. There was nothing blocking the front door.[248] She does not remember if the front door opened. There was no internal door from the hallway into the lounge room (i.e. the accused’s bedroom).[249]

    [248] T98.3-26.

    [249] T99.10-12.

67. Again, KN gave evidence the offending mostly occurred after school.[250] At Liberty Grove, the accused would leave the house about 5:00am to go to work and return at about 6:00pm.[251]

    [250] T102.10-23.

    [251] T103.26-29.

68. Mr Loc was a tenant at Liberty Grove for a short time. There were also other tenants that would stay for weeks or months. They were not permanent. KN remembered around three of four tenants and they would come and go at different times. KN did not know when they would be coming and going, they did not talk to her.[252] KN did not know their routines.[253]

    [252] T121.23-38.

    [253] T122.1-3.

69. Vince would work at a Vietnamese restaurant. KN stated he did not just work there on weekends only. When asked, she said she was unsure if he mainly worked there on weekends.[254]

    [254] T104.8-12.

70. KN agreed that she told police that the accused’s bed was backed up against the front door and she drew a diagram of it in that position.[255] KN advised she did not deliberately position the bed in front of the door, knowing that it was not the correct position, so that she could convince others that people could not walk in on the accused while he was performing sexual acts on her. KN said drawing the bed in front of the door was a mistake.[256]

    [255] T116.11-14.

    [256] T115-117.

71. KN said the accused would sometimes abuse her in Vince’s bedroom. This was different to the normal pattern of the offending occurring in the accused’s bedroom. She agreed that something ‘not in the pattern of things’ would stick out in her mind.[257] She agreed that she did not tell police that the offending sometimes occurred in Vince’s bedroom. She agreed that she told police on 22 December 2021 that the offending occurred on the accused’s bed.[258]

    Essex Street address

    [257] T117.25-28.

    [258] T116-117.

72. KN gave evidence that she had her own bedroom in Essex Street. She would sleep in that bedroom.[259]

    [259] T99.16-23.

73. The door of the accused’s bedroom had a handle and a lock. KN was not sure what kind of handle or what kind of lock.[260]

    [260] T100.28-33.

74. All of the sexual things that happened between KN and her father happened in the accused’s room.[261] The offending mostly occurred after school.[262]

    [261] T100.24-27.

    [262] T102.4-5.

75. Again, the accused would leave the house about 5:00am to go to work and return at about 6:00pm.[263] Vince worked with the accused sometimes on the farms.[264] Vince was also attending Thebarton Senior College.[265]

    [263] T103.13-17.

    [264] T104.13-15.

    [265] T104.16-18.

76. KN knew that there was a man who stayed in the living room at Essex Street. She did not know if he was a tenant, because there was no room for him. She thought he was a friend. He slept on a sofa bed in the living room.[266] KN does not remember him spending much time in the living room.[267]

    [266] T124.24-38.

    [267] T125.1-4.

77. KN was shown Exhibit P3. She said the living room was directly outside her bedroom. The accused’s bedroom was right next to her bedroom.[268]

    [268] T125.10-17.

78. KN did not know if another mother and daughter tenant moved into the Essex Street premises after she moved to St Clair. When asked, KN did not recall meeting a woman called Tran Hahn or another woman called Tran Noc.[269]

    [269] T125.27-30.

79. After KN moved out of Essex Street she never went back to that address. She did not recall going back to Essex Street and she had never met a woman there.[270] She did not know who the accused was living with. She denied spending the night at Essex Street sometimes after she moved out. She denied that Vince spent the night at Essex Street after moving out.[271]

    St Clair address

    [270] T125.36-T126.3.

    [271] T126.18-23.

80. The landlord at the St Clair residence was Uncle Murphy, the accused’s half-brother.[272]

    [272] T118.12-14.

81. No one saw the accused try to have sex with her at this address.[273] This was the only time the accused did anything inappropriate at this address. It was the last time that anything sexual happened with the accused.[274] KN agreed that the first time she mentioned this incident was in her statement to police on 6 June 2023.[275]

    Finances

    [273] T118.4-11.

    [274] T118.22-24.

    [275] T118.29-36.

82. At each of the four houses that they lived at, KN said the accused and her brothers paid rent.[276] The accused and her brothers never involved her in anything to do with money.[277] She remembers the accused working and paying for groceries.[278]

    [276] T102.32-36.

    [277] T102.34-36.

    [278] T102.37-T103.1.

83. The family moved to Essex Street when KN commenced year 7. XLN lived with the family at Essex Street. XLN moved to Melbourne when KN was at the end of year 7, the same year.[279] When she was living in Essex Street, KN found out that the accused gambled.[280]

    [279] T136.31-38.

    [280] T136.12-14.

84. KN did not know if her father asked XLN to borrow money due to his gambling. She did not know if the accused would ask Vince for money. She knew that the accused and her brothers argued about money because of the accused’s gambling and that fact the household bills were not being paid. The accused was responsible for buying the groceries.[281]

    [281] T137.2-23.

85. Vince would never mention money to KN. Vince moved out because of arguments about money and gambling. Both KN and Vince did not like the accused gambling. KN thought that the accused should have spent the money he spent on gambling on the household, supporting her and her brothers.[282]

    [282] T137.26-38.

86. KN stated that Vince told her he was not happy with the accused and she then moved out with Vince into Uncle Murphy’s house. Vince arranged the move.[283] They moved into that house almost as soon as KN got back from a trip to Vietnam. When she was in Vietnam, she stayed with her mother.[284] She agreed that her mother has always told her to stay close to her brother and that she wants KN to have a close relationship with him. KN said her mother always reminded her about that, even in phone calls.[285] She would speak with her mother twice a week.[286]

    [283] T138.3-10.

    [284] T138.14-16.

    [285] T138.22-29.

    [286] T139.5-7.

87. Vince did not tell her that he thought the accused had stolen money from him while at Essex Street. He and the accused would argue in a separate area. They would sit in the room and talk calmly and KN could not hear them. They would tell her to go into her room. She could sometimes hear them say ‘money’. She knew they were arguing.[287]

    [287] T139.18-32.

88. When KN was living at Essex Street, she wanted a dress for her year 7 graduation. The accused told her that he could not afford to give it to her. She agreed that she argued with him about it.[288]

    First occasion of offending

    [288] T139.37-T140.9

1. As a corollary to that submission, counsel for the defence suggests that it was curious that KN did not suggest that moving out of her father’s home was anything to do with the sexual offending.

2. The relevance of evidence of discreditable conduct in such cases is often relevant and can be highly probative in terms of explaining the acquiescence and response by the complainant to the accused’s conduct. However, the absence of such evidence in this case is quite neutral in terms of assessing the complainant’s conduct in response to the alleged offending. The complainant’s response must be assessed on the evidence which the court accepts. The cogency of that evidence must be assessed in all the circumstances of the case.

3. In this case, KN was highly dependent on the accused. She was very young. The objective evidence establishes that she had only recently arrived in Australia and had little or no English language skills on arrival. The accused was in the position of sole parent and guardian following the family’s migration to Australia. It is not surprising, in my view, that the accused would have some confidence about the low risk of detection when he engaged in the first unlawful sexual act with the complainant. The accused had a very significant degree of control over the young complainant. The escalated alleged unlawful sexual acts which followed were accompanied by demands of the accused of the complainant’s silence. There is the likelihood too, that in the circumstances alleged by the complainant that she did not make a complaint for some time, that the accused’s confidence grew about the risk of detection.

4. I do not consider that the absence of grooming behaviour or the absence of demands of silence at the initial stages of the offending undermine the credibility or reliability of the complainant. I am also not satisfied that the complainant’s credibility and reliability is affected by the evidence that she moved out of the family home for reasons apparently unrelated to the offending behaviour. Those other reasons relate to financial issues which are addressed below.

   Financial arrangements

5. It was suggested by counsel for the defence that in her evidence KN demonstrated a real reticence to talk about financial matters. It was submitted that her reluctance in this respect was relevant to her overall credit.

6. I accept that the complainant told the court that her older brother moved out of the family home following a disagreement with the accused, but that she did not know what it was about. KN agreed that about two months later she and Vince moved out to an address in St Clair. She said that that was also following a disagreement with the accused. She said that she did not know what the disagreement was about. The complainant was then asked whether there was a common reason that disagreements would occur. KN then identified financial problems as the common reason for disagreements. The complainant said that bills could not be paid on time. She said that the accused and her brothers never talked to her about money problems and she was not sure why there were money problems. The complainant told the court that it was her father who had the money problems and not her brothers. She said it was her father who had money problems because of gambling. Importantly, the complainant said that when the accused and her brothers would argue and talk together, she was not allowed to be in the same room as them. KN said that she was not allowed to listen to the conversation. She agreed that the best she knew was that there were money problems and her dad gambled.

7. I do not consider the complainant’s evidence about the financial difficulties of the family undermined her credibility or reliability. I accept her evidence that she was not directly involved in the discussions between the accused and her older brothers about financial problems. It is clear from her evidence that she was deliberately kept out of those discussions. Bearing in mind the complainant’s age at the time, one might expect that she would not be involved in these discussions to avoid any embarrassment and disrespect of her father. In addition, the complainant would have been aware by virtue of her exclusion from discussions of the sensitivity of the subject. In those circumstances it is unsurprising that it was a subject that she approached with caution as a sensitive family issue about which she knew little.

   Complaint evidence

8. Counsel for the defence suggested that there were circumstances in which the complainant found herself where it might be thought natural to complain and where one ought to have complained and no complaint was forthcoming. These circumstances included the fact that she was living away from her father with her brother Vince, among other points. It was submitted that absence of a complaint in those circumstances is relevant to the consistency in the sense of having made a complaint.

9. As I understand the submission, it is to suggest that there was an inconsistency of conduct in the making of the complaint because a complaint was not made when it would have been expected to have been made.

10. It was submitted that this was relevant to the complainant’s credibility.

11. Counsel for the defence specifically disavowed any suggestion that the delay by the complainant in the making of a complaint was in any way probative.

12. Section 34M(4(c) of the Evidence Act requires as a matter of law that a direction be given about the use of complaint evidence, namely that there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person.

13. The evidence of KN was that she was reluctant to report her father to the police because at that time she still loved her father and still saw him as her father. I am satisfied that her evidence on this topic was sincere. Although that evidence related to a report to the police, it is relevant to the extent that it discloses the nature of her relationship with her father and her attitude generally to disclosing his behaviour.

14. The complainant’s evidence about disclosing her father’s sexual misconduct to YL is also relevant. KN told the court that she disclosed the allegation to her school friend because she was not having the ‘best day’ and it was easier to tell her friend because she was not her family.[533] The complainant also asked her friend not to tell anyone.

    [533] T87.27-32.

15. KN finally disclosed the accused’s alleged conduct after she had left her father’s home and was living with her brother at St Clair. She said that she was not doing well at school and was skipping school a lot. Her brother Vince asked her if she was okay and what had happened. KN then disclosed the allegation after he promised that he would keep it a secret. The complainant told the court that she was begging Vince not to tell anyone.

16. I accept the complainant’s evidence that she was reluctant to disclose the allegations to family members and that the disclosure of the offence was precipitated by Vince’s inquiries about her well-being because of her school attendance and performance.

17. Considering that evidence, I am satisfied that the circumstances in which the allegations were disclosed both to the school friend and the brother do not adversely affect the consistency of the conduct of the alleged victim.

18. It was suggested that there were ‘significant discrepancies’ between the complainant’s evidence and the complaints that she made which ‘significantly undermines the consistency of conduct inherent in making a complaint’. It was submitted that the evidence undermines, rather than buttresses, the complainant’s credibility.

19. It was also submitted that there was an inconsistency between the terms of the complaint and the complainant’s evidence.

20. Counsel for the defence identified an apparent discrepancy between the complainant’s evidence about her complaint to her school friend YL and YL’s evidence. The complainant was not able to remember her exact words to YL but in her memory, she told YL that she ‘got sexually abused at home’.[534] YL asked KN whether she meant that the accused inserted his penis into her vagina and KN responded, ‘yes, he did’.[535] However, the evidence of YL was that the complainant had told her that her father had ‘raped’ her. It was also submitted that nothing was said about the frequency of the sexual acts but that it was said it occurred when the complainant was living at Woodville Gardens and when her brother was in Melbourne.

    [534] T88.7-10.

    [535] T88.7-28.

21. It was submitted that there was an inconsistency in relation to the offending occurring at the Woodville Gardens premises and not elsewhere. It was suggested the omission in the complaint about abuse occurring in other premises and the evidence that the brothers went to Melbourne only once or twice undermines KN’s evidence about the frequency of the acts of sexual abuse.

22. However, YL’s evidence about frequency was that KN told her it would happen when her brother was out of the house generally, without reference to her brothers being in Melbourne.[536] Other evidence clearly establishes that KN’s brothers were often out of the house for educational and employment purposes.

    [536] T162.30-32.

23. The only location identified in the complaint to YL was Woodville Gardens.

24. I do not consider the discrepancies identified by the defence counsel on this topic are sufficiently material to undermine the reliability and credibility of the complainant. It was no doubt an important conversation between the complainant and the witness and its uniqueness would have made it memorable. However, in my view, neither the complainant nor the witness could be expected to recall the terms of the conversation between them word for word. KN believed her words to be that the accused ‘sexually abused’ her. When asked by YL, she agreed that her father inserted his penis into her vagina. The difference between the complainant agreeing that the accused inserted his penis into her vagina and YL’s recollection that the complainant had told her that her father had ‘raped’ her, are in my view a matter of semantics. The import of the conversation was that the complainant told her friend that her father ‘sexually abused’ her and had sex with her.

25. The apparent discrepancies relating to frequency and the identification of the locations where the unlawful sexual acts were said to have occurred does not undermine the credibility of the complainant. In my view, a young complaint witness in the context of a schoolyard conversation cannot be expected to have recounted all or even many of the alleged incidents of offending committed over a period of several years. One might reasonably expect, having made a complaint, that she was alerting her friend generally to a very significant and personal issue. This is consistent with KN’s evidence that she said she was ‘sexually abused’, rather than describing specific acts, times and places. One might reasonably expect the complainant not to elaborate on the type of detail required in evidence in court.

26. Counsel for the defence identified discrepancies between the complainant’s evidence and the second complaint witness, her brother Vince.

27. The first inconsistency identified by counsel arises from the evidence given by Vince. In cross-examination, Vince said that KN told him that the accused had raped her at Essex Street but that she did not say that it began at Essex Street.[537] Vince then agreed that he had told police that during that conversation, he had asked KN when the abuse started and KN said it started when they were living together at 33 Essex Street, Woodville Gardens.[538] Vince said that he told police that because that is what he recalled KN saying to him to the best of his memory at the time.[539] However, the evidence of KN was that the sexual abuse commenced at an earlier point when living elsewhere (Days Road) and concluded at the time the family were living at Essex Street.

    [537] T295.26-28.

    [538] T296.20-25.

    [539] T296.26-38.

28. I do not consider that very much turns on the difference between the complainant’s account and Vince’s evidence on this point. The evidence shows that Vince provided a statement to police some considerable time after the complaint made by his sister. It is clear from the evidence of Vince that the complainant was reluctant to disclose the allegations and did not make extensive references to particular incidents or acts of abuse. The complainant, on her evidence, was anxious to ensure that her brother did not further disclose the allegations. In his evidence Vince said he did not ask for details because he felt it was ‘quite disgusting’.[540] In those circumstances, one might expect that KN provided minimal detail in order to avoid her brother taking the matter further. I consider that in those circumstances, the evidence of Vince that the complainant told him that the abuse started at the Essex Street house is likely to be an impression or a conclusion he drew from the conversation which was sparse in detail about locations and specific acts.

    [540] T256.33-35.

29. Counsel for the defence also raised another discrepancy that involved KN telling Vince that the accused called the complainant home from school to have sex with him. I do not draw any significance from this alleged discrepancy. It is an issue of inconsistency that at best goes to the weight of the complaint evidence.

30. The final alleged inconsistency between the complainant’s evidence and that of her brother Vince relating to the complaint concerns the complainant’s evidence that the brother suggested that she keep it a secret for longer because they needed their father’s money. In his evidence, Vince denied that he had made such a suggestion.

31. I do not consider this to be an inconsistency in relation to the complaint evidence. The evidence of KN that her brother suggested that she keep it a secret for longer for financial reasons is not evidence of a complaint by the alleged victim. It is evidence of an inconsistency between the evidence of the complainant and her brother. It is difficult to see how it is relevant other than to the general reliability of the complainant as a witness. In any event, I find the evidence is not terribly relevant, particularly as it does not expose any motive to lie on the part of the complainant on either view of the evidence.

32. In summary, I do not consider that the inconsistencies, such as they are in the complaint evidence, undermine the credibility or reliability of the complainant. However, bearing in mind the absence of detail and differences in language used, I find the complaint evidence to be of only limited value and then, only in relation to the making of a complaint, when it would be expected to have been made and why the alleged victim did not make the complaint at an earlier time. Due to the paucity of detail, the complaint evidence provides little if any support for a consistency in the narrative of the complainant.

    Motive to lie

33. Counsel for the defence submitted that there were aspects of the ‘family scenario’ as it was put, which provides a motive for the complainant to have made false allegations about the accused.

34. The motives relate to KN’s alleged resentment of her father’s marriage to his second wife and reduced financial support for the complainant.

35. KN denied any ill feeling towards the accused’s second wife, her stepmother. The complainant only said that they did not have a close relationship.[541] Her evidence in this regard was consistent with the evidence of her brother, Vince. There was no direct evidence to the contrary or any other evidence that might suggest the complainant had cause to, or exhibited, any ill feeling towards her father’s second wife.

    [541] T143.24-26.

36. I am satisfied that KN was not motivated to lie and make false allegations about her father, the accused, because of his marriage to her stepmother or a resentment of her father’s marriage to her stepmother.

37. The evidence does establish that there was disharmony within the family over financial issues. The evidence discloses that the complainant’s two older brothers and the accused argued over the family’s financial situation and the accused’s gambling issues. As discussed earlier, the evidence does not disclose that KN was involved in those discussions or was aware of the detail of the financial issues between the accused and her brothers. There appears to have been no disharmony that involved the complainant. The best KN knew was that there were money problems and her father gambled.[542] 

    [542] T82.13-15.

38. Accordingly, I am satisfied that the dispute over financial matters between the accused and the complainant’s brothers did not motivate KN to fabricate the allegations against the accused.

39. The evidence also discloses that the accused stopped making payments to Vince on behalf of the complainant after the complainant and Vince moved to St Clair. However, the complainant’s evidence was that the payments that the accused would give to her did not stop at any time up until KN made a report about this matter in May 2021.[543] The evidence suggests that the complainant was then unaware of the cessation of the payment which was an issue between her brother and the accused.[544]  

    [543] T86.13-16.

    [544] T147.15-18.

40. The evidence discloses that the accused continued to make direct payments to the complainant after she left the accused’s home. These payments were used for what might be described as discretionary spending.

41. It is clear that financial matters were of importance to the family, including the complainant. In my view that is to be expected. The complainant and her family at the time of the alleged offending were new arrivals to Australia. Their father, the accused, was engaged in casual seasonal employment in the farming sector. His hours of work varied significantly based not only on the seasons but also weather conditions. The complainant’s older brothers were required to engage in seasonal farm work and casual restaurant work for income and to support their studies. The family lived in rental accommodation which turned over rapidly and the accused took in tenants to provide additional income.

42. In those circumstances, one might well expect family, including the complainant, to have some focus on their financial security as well as their security of accommodation. It is unsurprising therefore that the complainant’s evidence might show focus on financial issues.

43. KN’s evidence about her financial interests did not in my view motivate her to fabricate allegations against her father. I reject such a proposition is a reasonable possibility. I accept the complainant’s evidence that despite the accused’s conduct, she still loved her father, saw him as her father and was reluctant to have him reported for his sexual abuse.

    Conclusion

44. As previously indicated there is no dispute about the following matters and I am therefore satisfied beyond reasonable doubt that;

    1.There was a continuing familial relationship between the accused and the complainant of biological father and daughter which existed throughout the charged period;

    2.The accused was an adult;

    3.The alleged victim of the offence was a child.

45. I accept that the complainant KN was a credible and reliable witness. For reasons I have elaborated upon, I reject as a reasonable possibility that the complainant has fabricated the allegations against the accused of unlawful sexual acts by him upon her. I find that the imperfections and any infirmities in her evidence do not, for reasons I have given, undermine her reliability.

46. In relation to whether the prosecution has proven that the accused maintained an unlawful sexual relationship with the alleged victim, I am satisfied beyond reasonable doubt based on the evidence of the complainant that the prosecution has established that;

47. During the relevant period the accused maintained a relationship with KN and on two or more occasions engaged in unlawful sexual acts with KN over the relevant period involving:

    (a)    touching her nipples;

    (b)    touching her vagina;

    (c)    causing her to masturbate his penis;

    (d)    inserting his penis into her vagina;

    (e)    causing her to perform an act of fellatio on him;

    (f)     causing her to lick his testicles;

    (g)    masturbating in her presence; and

    (h)    performing an act of cunnilingus on her.

1. Accordingly, I find the accused guilty.