R v PT - [2023] SADC 51

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PT
Criminal Trial by Judge Alone
[2023] SADC 51
Reasons for the Verdicts of her Honour Judge Tracey
5 May 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - EVIDENCE - GENERALLY
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
Accused charged with maintaining an unlawful sexual relationship against stepdaughter (Count 1) and daughter (Count 2) – other uncharged sexual conduct – evidence of complainants and cross-admissibility – complaint evidence – elected for trial by judge alone
Held:
Guilty Count 1
Not Guilty Count 2.
Child Safety (Prohibited Persons) Act 2016 (SA); Criminal Law Consolidation Act 1935 (SA) s 50(1), referred to.
R v C, CA [2013] SASFC 137 at [61], applied.

R v PT
[2023] SADC 51
R v PT
Introduction

PT (the accused) is charged with maintaining an unlawful relationship with his stepdaughter EG and with his biological daughter CP. The accused denies having engaged in any unlawful sexual activities with either complainant and pleaded not guilty to the charges, electing to be tried by judge alone. The charges are as follows:
First Count
Statement of Offence
Maintaining an unlawful sexual relationship with a child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[PT] between the 1^st day of January 1998 and the 7^th day of May 2002, at Davoren Park and other places, maintained an unlawful sexual relationship with EG, a persPTon under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards EG, namely:
(a)   Touching her on the genital area, on more than one occasion;
(b)   Inserting a finger into her vagina, on more than one occasion;
(c)   Touching her on the breasts, on more than one occasion; and
(d)   Exposing his penis to 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.
Second Count
Statement of Offence
Maintaining an Unlawful Sexual relationship with a Child. (Ibid).
Particulars of Offence
[PT] between the day of 1^st day of January 1999 and the 7^th day of May 2002, at Davoren Park and Elizabeth North, maintained an unlawful sexual relationship with CP, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards CP, namely:
(a)   Touching her breasts and nipples, on more than one occasion;
(b)   Exposing his penis to her, on more than one occasion; and
(c) Asking her to touch his penis, 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.
Prosecution Case
The charged offending relates to acts alleged to have taken place over a four-year period, commencing in the late 1990’s. Over the period of the alleged offending, the accused was in a relationship with the complaints’ mother.
EG alleges that from when she was around seven-years of age, the accused touched her on the vagina both over and under her underwear and inserted his finger into her vagina on multiple occasions. The frequency of the incidents meant she could not remember the specific details of each occasion. EG also alleges that on one occasion, the accused touched her over her clothes on the breasts and vagina. The offending occurred at a house at Sissman Street, Davoren Park (Sissman Street) and at a house at Chirton Street, Elizabeth North (Chirton Street).
There were occasions when the accused would enter the bathroom at Chirton Street when EG was in the shower and comment on her breasts and pubic hair. The prosecution relies on that uncharged conduct to demonstrate that the accused had a sexual interest in EG and a willingness to act upon that sexual interest.
In relation to the charge involving CP, it was alleged that when her family lived at Sissman Street, the accused entered her bedroom nightly to say goodnight. The accused would be physically affectionate towards her and on occasions rub her nipples under her clothes. The offending continued at Chirton Street, but less frequently.
On occasion, the accused would call CP into the bathroom when he was naked in the shower, telling her to come in and play and when saying those words, would look down at his penis. On other occasions, the accused exposed his penis in the hallway after leaving the bathroom and asking CP to touch it. CP always refused those requests.
There was an occasion at Chirton Street when CP was around the age of six, when she sat on the accused’s lap and he put his hand under her top, squeezed her breasts and tugged at her nipples, making comments about the fact that she was developing. CP alleged that this occurred on more than one occasion.
The accused would also make comments as to her physical development whilst she was bathing. The prosecution relies on this evidence of uncharged conduct to demonstrate that the accused had a sexual interest in CP, a willingness to act on that interest and to show that the accused had a sexual interest in pre-pubescent girls in a familial setting, and a willingness to act on that despite the risk of detection.
On the prosecution case there were sufficient similarities between the two accounts to establish that propensity. Namely, that the accused is alleged to have told both complainants not to tell anyone and having progressed from the bedroom to the lounge, bathroom, and kitchen despite a greater risk of detection. Further, both complainants recalled the accused exposing his penis in the hallway and both gave accounts of the accused entering a bathroom while each was naked.
The prosecution relies on the cross-admissibility of the evidence as between the complainants for an improbability or similarity of account use. The prosecution argues that there are sufficient similarities such that it cannot be said that the accounts could have been independently fabricated and there is no collusion or contamination between the complainants, with the only explanation from the broadly similar accounts being that the allegations themselves are true.
EG complained to her mother when EG was around 11 years of age. As a result of that complaint, EG’s mother confronted the accused, and ended the relationship with the accused, who then left the family home.
The prosecution alleges that when CP was around 11 years of age, she told her mother that the accused had put his hands down her shirt and flashed his penis at her. This was alleged to have been in response to her mother telling CP what a paedophile was and her asking CP if the accused had touched her.
Witnesses
The prosecution called the following witnesses:
·EG (the complainant, count 1)
·CP (the complainant, count 2)
·LG (the complainant’s mother)
·CG (the complainant’s brother)
Elements of the offence
Maintaining an unlawful sexual relationship with a child
The offence of maintaining an unlawful sexual relationship with a child is made up of four elements, each of which must be proved by the prosecution beyond reasonable doubt. The elements of the offence are:
The accused knowingly maintained a relationship with the complainant.
That element is made up of three separate parts, namely:
·There must be a relationship between the accused and the complainant that comprised of more than the alleged sexual acts;
·The accused must have maintained that relationship, that is, carried on, kept up or continued the relationship;
·The accused must have maintained that relationship knowingly, that is, he had knowledge of the sexual acts he performed and the contextual circumstances in which he performed the acts which comprised the relationship.
(1)    That the accused was an adult during the relevant period.
(2)    That the complainant was under the prescribed age being 17 years of age.
(3)    That in the course of the relationship, the accused engaged in two or more unlawful sexual acts with or towards the complainant.
With respect to Count 1, the prosecution alleges that particulars (a) and (c) of the charge relates to an aggravated indecent assault, while particular (b) relate to the offence of unlawful sexual intercourse and (d) relates to the offence of gross indecency.
With respect to the second count, the prosecution argues that particular (a) relates to an aggravated indecent assault, while particulars (b) and (c) relate to the offence of gross indecency.
The elements of aggravated indecent assault are as follows:
Aggravated indecent assault
The prosecution must prove beyond reasonable doubt that:
(1)The accused intentionally assaulted the complainant.
(2)The assault occurred in circumstances of indecency; that is, the indecent circumstances must contain a sexual connotation and the application of force was unlawful.
(3)The complainant was under the age of 14 years at the relevant time.
The elements of the offence of gross indecency are as follows:
Unlawful sexual intercourse
The prosecution must prove beyond reasonable doubt that:
(1)     The accused had sexual intercourse with the complainant.
(2)     During the relevant period, sexual intercourse was defined as follows:
sexual intercourse includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving –
(a)Penetration of the labia majora or anus of a period by any part      of the body of another person or any object
(b)…
(c)…
(3)     The complainant was under the age of 12 years at the relevant time.[1]
[1] As at 7 May 2002, the complainant was 11 years and 4 months old.
Gross indecency
The prosecution must prove beyond reasonable doubt that:
(1)    The accused did the act alleged;
(2)    The act was done with the complainant;
(3)    The complainants were under the age of 16 years at the relevant time;
(4)    The act must have been indecent.
Indecency means some form of sexual conduct or activity which ought to be regarded as indecent, having regard to the age of the complainant and the nature and circumstances of the conduct or activity, and to contemporary standards of morality and decency.
The indecency, if it occurred, must be gross.
It must be something more than minor or trivial indecency. The conduct must be such as to be characterised not only as indecent but as grossly indecent.
General directions
I direct myself as follows:
The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt.
·The burden of proving a charge lies wholly on the prosecution and the accused is not obliged to prove anything. Nothing short of proof beyond reasonable doubt will do. It is not sufficient for the prosecution to show a mere suspicion of guilt or even to demonstrate probable guilt. I must be satisfied that the prosecution has proved beyond reasonable doubt each element of the offence.
·At all times, it is for the prosecution to satisfy me that the complainant is both an honest and a reliable witness beyond reasonable doubt.
·The accused was not bound to give evidence and chose to remain silent as was his right. I have not drawn any inference adverse to him on account of his exercise of that right.
·If, after full and careful consideration, I am unable to decide where the truth lies or who is telling the truth, the prosecution will have fallen short of proving the case beyond reasonable doubt and my verdict should be one of not guilty.
·I must assess each witness, as to their truthfulness and reliability, and must determine whether I can rely on the evidence of a witness. I can reject or accept all or part of a witness’ evidence.
·The defence has not suggested a motive to lie. The defence has no onus to do so. The fact that there is no evidence in this case of a motive to lie does not strengthen the prosecution case; it is neutral. Lies can be told for no apparent reason. Crucially, it is not for the accused to prove a motive for a complainant to lie. At all times, the prosecution bears the onus beyond reasonable doubt.
·The complainants each gave evidence with special arrangements in place. I must not draw an adverse inference against the accused because of those arrangements, nor allow them to influence the weight I give each of their evidence.
Agreed facts
Dates of Birth
1.EG, the complainant, was born on 8 December 1990.
2.CP the complainant, was born on 9 September 1994.
3.CG, the complainant’s brother, was born on 9 May 1985.
4.The accused was born on 17 November 1966.
Dates of Death
5.DG, the complainant’s grandmother, died on 24 May 2015.
SA Housing Authority Records
6.Records held at the SA Housing Authority state LG (the complainant’s mother) either residing at or provided as her contact address the following addresses:
a.From 14 November 1992 to 7 January 1994 at 33 Johnston Road, Elizabeth Downs.
b.As at 10 January 1994 provided her contact address as 21 Blencowe Street, Elizabeth Grove.
c.From 5 February 1994 to 12 May 1995 at 18 Breamore Street, Elizabeth North.
d.From 24 June 1998 to 7 March 2000 at 34 Bloomfield Crescent, Elizabeth Downs.
e.As at 20 September 2000 at 2/78 Dauntsey Road, Elizabeth North.
f.Form 9 November 2001 to 18 August 2003 at 2 Chirton Street, Elizabeth North.
7.Records held at SA Housing Authority state the accused was either residing at or provided as his contact address the following addresses:
a.From 7 December 1992 at 31 Johnston Road, Elizabeth Downs.
b.From 27 January 1994 at 21 Blencowe Street, Elizabeth Grove.
c.From 29 November 1994 to 7 December 1994 at 14 Yarnbrook Street, Davoren Park.
d.From 23 December 1994 to 3 May 2002 at 11 Sissman Street, Davoren Park.
e.As at 7 May 2002 the accused was registered as NFA (No Fixed Address).
f.As at 20 September 2000 provided his contact address as 2/78 Dauntsey Road, Elizabeth North.
School Records
8.Records held within the SA Department for Education state that the complainant EG was enrolled in the following schools:
a.Between 18 September 1988 and 29 January 2001 at Elizabeth Downs Primary School.
b.Between 29 January 2001 and 12 December 2003 at Broadmeadows Primary School.
c.Between 26 January 2004 and 21 February 2008 at Fremont-Elizabeth City High School.

9.The property at 11 Sissman Street, Davoren Park was a public housing property in which the accused was registered as tenant from 24 December 1994 to 3 May 2002.

10.On 4 April 2002, an application was made by South Australian Housing Trust to the Residential Tenancies Tribunal seeking an order for possession of the property situated at 11 Sissman Street, Davoren Park, on the grounds that the accused was not residing at the premises and had not contacted the Trust regarding his tenancy.

11.An order for the South Australian Housing Trust to take possession of 11 Sissman Street, Davoren Park, was made on 23 April 2002.

12.On 23 June 2004, LG (the complainant’s mother) attended at Elizabeth Police Station in respect of allegations concerning the accused and stated to police that two years ago the accused had molested her daughter aged 13, EG.
Prosecution Evidence
EG’s Evidence
EG was born in December 1990 and currently works as a business consultant. She said that the accused first came into her life when she was about two years old, when she was living in Elizabeth North with her mother, her three older brothers, and the accused. She was seven when her mother and the accused separated for a time.
On separation the family moved to Bloomfield Crescent in Elizabeth Downs. The accused moved to Sissman Street in Davoren Park. Her mother and the accused got back together for a time and her mother, CP and her brother CG moved into the Sissman Street address, where EG shared a bedroom with CP.
EG said that the first time she recalled there being inappropriate contact by the accused was when they moved in with the accused at Sissman Street. She was laying on his bed in the main bedroom and they were talking. He said that he was happy that she was calling him ‘dad’, because sometimes she had called him by his first name. The accused touched her on the outside of her underwear on the top of her vagina. She could not remember if it was daytime or night-time. She said he stroked her and just moved his hand around. She did not remember what he or she were wearing at that time. EG said “it’s the first specific time that I remember but it didn’t feel like a new thing at the time.”[2]
[2] T16.22
She said that type of touching happened more than once. Sometimes the accused would be in the bedroom, and she would just walk in, while other times he would call her in. The accused had collections of coins and yowies and tazos in his room. EG would be laying on the bed and he would touch her vagina both over and under her underwear.[3] It felt like it was happening very frequently, more than once a week.[4]
[3] T17.2.
[4] T17.12
While she could not remember whether there were other people at the house when this was happening, she believed her mother and CP were usually around as they did not really go out all that often.
When asked why she did not tell anyone about what was happening she said that the accused told her that he could not help himself and that if she did tell anyone “we would get in a lot of trouble and it would break the family up and mum couldn’t pay the bills without his help.”[5]
[5] T17.23
EG said that she believed that she was around seven or eight years of age at the time. She said that she was roughly ten or eleven when they left Sissman Street.
EG recalled an occasion when she was laying on the accused’s bed with the accused touching her. The accused told her that he had tried to touch CP, but that CP did not let him because she did not love him.[6] It was the first time the accused put his finger inside her vagina. This had happened on more than one occasion. She said “it felt like a routine thing, but it wasn’t every time. Sometimes it would be on top of her underwear, beneath her underwear and sometimes he would put a finger inside her vagina. It did not seem to have any pattern or consistency”.[7]
[6] T18.9
[7] T18.33-36
EG recalled an occasion when she had been sitting on the accused’s lap on the couch in the lounge room, while the accused was touching her on the inside of her underwear and while her sister was on the floor in front playing the PlayStation. She believed her mother was in the kitchen or the dining room at the time. She had no specific recollection of what anyone was wearing.
She did not tell her mother anything about the accused’s behaviour as she had not wanted to break up the family. She said that the accused was the only dad that she had ever known and did not want that responsibility on her. She did not want him to get into trouble.[8]
[8] T19.20
The family moved to Whitsbury Street, Elizabeth North and then to Chirton Street. The accused was living in the shed. EG said her mother and the accused would not talk for weeks but there were often loud fighting arguments between them as well.
At Chirton Street the offending continued when she and the accused were laying on her bed. It was a lot less frequent and less than once per week. There were, she said, no specific occasions in that bedroom that stood out.[9] It was the same type of touching as had occurred at Sissman Street.
[9] T20.31

EG said that sometime afterwards, when she was aged 10 or 11, she told the accused that she wanted him to stop because she had started getting her period and the accused was getting very possessive over her and accusing her of having sex with boys at school. The accused told her that he would try but that it was ‘really hard to stop’.[10]
[10] T21.1
After she had told him to stop, she recalled an occasion when her mother and CP were playing outside, and the accused came in from the shed. She was doing the dishes and the accused touched her on top of her clothes, on her breasts, and on the top of her vagina. The accused said that he was trying so hard to stop but he just could not help himself.[11]
[11] T22.17
Sometimes the accused would walk into the bathroom because they only had one toilet and he would come in to wash his hands. More than once while she was in the shower, the accused would make comments about how she was growing breasts and pubic hair.
When she was in her bedroom and the accused was leaving the shower to go back out into the shed, the accused would open his towel and then just keep walking. Sometimes CP was there with her. EG said she could not remember if the accused’s penis was flaccid or erect at the time. She said this happened infrequently but more than five times. She described what she thought of it at the time as being “…..just some funny stupid thing, gross thing that my stepdad did.”[12]
[12] T23.13
Her Nanna lived at Old Sarum Road, Elizabeth North. One afternoon she and the accused were sitting in the lounge watching television. Her mother and Nanna were in the dining room having a cup of tea and talking. EG said the accused touched her on the outside of her underwear while she was sitting on his lap on the couch. It was on top of her underwear, so it would have been under the shorts or pants she was wearing.[13]
[13] T23.36
EG said that the accused told her on several occasions not to tell anyone. Her mother was the first person she told. Her mother was dropping her off at school one morning and asked if the accused had ever touched her. Her mother used the word molested and EG said she had replied “no, of course not”. Her mother asked her again and again EG denied anything had happened. Her mother told her that she had found her diary and had read where EG had written she hated how the accused touched her. EG then told her mother that it was true and that he did.[14]
[14] T24.21
Her mother came into school with her and talked to EG’s teacher. She did not see the accused when she came home from school that night. The following Saturday she went to her best friend’s house and when she came home the accused had completely moved out.
EG said that she first went to report the matter to police in 2018, but had found information that the statute of limitations meant that it was too late. A few years later there was a lot of news about historic sexual abuse, and she understood she could still come forward. Some time after that she gave her statement at the Elizabeth Police Station.
With respect to conversations with her sister CP, EG said that they had had general conversations but had not gone into specifics about what happened to her. EG said that CP knows that she was molested. CP told her that the accused touched her breasts on one occasion. EG said that they really did not talk much further than that.
In cross-examination EG denied she and her family members had never lived at Sissman Street. She said they had lived at that address full time. She said that her brother was not around very much and did not live there for very long. She could not recall how long they had been at Sissman Street when the first time anything happened with the accused.[15]
[15] T30.17
EG said she was unable to remember details such as the day of the week or the time of year the offending occurred. She had no memory of who else was present in the house, if it was a school day, or whether it was light or dark outside. She could not remember the clothes she and the accused had been wearing, although she did recall that the occasion in the loungeroom was at night-time and the offending at her Nanna’s house was during the day.
She did not speak to CP about the accused’s conversation regarding him attempting to touch CP.
While CP was sitting in front of her while the accused assaulted her on the couch, she did not yell out or say anything to tell the accused to stop.[16]
[16] T34.32
EG did not remember her brother CG ever living at Chirton Street.[17]
[17] T34.9
EG said that she had a clear recollection of being asked by her mother about the accused touching her while they were on the way to school.[18] She thought it was on a Friday. She had a pre-planned sleepover for the weekend and agreed that it was around May 2002 when the accused left, but she was not exactly sure. She was going to Broadmeadows Primary School. She was there from kindergarten until Year 2 and then returned in Year 5 through to Year 7. She had the same teacher for Year 6 and 7 so it would have been in Year 6 or 7, that is 2001 or 2002.
[18] T37.35
When the accused touched her at her Nanna’s house, she recalled that it was after school and would have been while they were living at Sissman Street. She did not remember where CP was at the time. She agreed that it would be right to assume that this occurred while CP was somewhere in the house.
She said there were occasions when CP was present when the accused would have a shower and walk out the back to the shed, taking his towel down and showing her his penis. She said that at the time they did not think it was sexual or inappropriate and thought the accused was just being gross and trying to be funny. She said the accused behaved in this way on several occasions. She and her sister would usually be on the couch in her room watching TV. She could not remember where her mother was on these occasions.
EG said she could not remember whether she had conversations with her sister about the accused before or after she had gone to the police in 2018. CP knows that the accused touched EG, but not about the specifics and how long it went on for. She said that she did not think her little sister needed the gory details. EG was adamant that she did not mention any specific incidents to her sister and agreed that it was at the general level of “he did something inappropriate to me”.
In re-examination EG said that she did not yell out when she and the accused were on the couch and CP was sitting in front of them because “it was something that happened commonly. I never even thought of it as an option to tell someone because it would have been my fault that the family would have been torn apart and it would have hurt mum, and [PT] told me that he couldn’t help it and he did it because he loved me, so it was just this big secret that we always shared”.[19]
[19] T46.24
Evidence of CP
CP is currently aged 28 and works as a disability support worker.
Her first memory was living at the Sissman Street address with the accused, EG, her mother and CG.
She remembered CG coming and going but was not sure if he had lived there permanently or not. After Davoren Park they moved to Chirton Street, Elizabeth North. She lived there with her sister EG, her mother and the accused.
At Sissman Street both she and her sister had single beds. When they would go to bed the accused would come and tuck them in and get under the blankets with them. She said that the accused would always say goodnight to her sister for a longer time and that she felt quite jealous of that, waiting for the accused to come and give her a hug and kiss goodnight. Her mother would say goodnight before they went into the bedroom.
CP said that when the accused would lay in the bed with her, he would put his hand under her nighty or pyjama top and would “feel my breasts and my nipples and he could tickle me, stroke my hair, tickle my body and that’s that. And then he would go to EG’s bed.”[20] She said that the accused would put his hands underneath her clothing.
[20] T50.20
She remembered moving out of that house when she was about six and moving to Elizabeth North. The accused was living in the shed in the backyard. She and her sister each had their own bedrooms.
When they lived at Chirton Street the accused had a job cleaning the skins of dead animals and would come inside and have a shower after work. Sometimes he would ask her to come in and have a look at him. He would come out into the hallway and open his towel and show her his penis.[21] The accused told her to, “come and touch this” or “have a look at this”. She said there was one occasion where she remembered his penis being erect. She had never seen an erect penis before. She said the accused exposing himself by opening his towel probably happened a couple times a week.
[21] T52.6
The time his penis was erect she said “yuck, go away” and ran away. On other occasions she would say similar things like ‘ewww’ or ‘no’ or would just run away. She never touched his penis.
While she was in the bathroom taking a bath, the accused would come into the room and say, “you’re growing up so fast” or “you’re growing breasts”, or he would give her a compliment about being pretty. He would ask whether she wanted him to get in with her. Mostly the comments were about her ageing and growing up. At that time, she would have been six to seven years old.
In the lounge room at Chirton Street, the accused would sometimes get her to sit on his lap and would put his hand underneath her clothing. There was one occasion that stood out to her as he had pulled on her nipples and squeezed her breasts. She remembered it hurting and he commented by saying “you’re growing up so fast, your breasts are growing.”[22] There was no one around at the time and she could not remember what she was wearing. This happened more than once. She said it was quite frequent that whenever the accused would give her a cuddle, he would be feeling underneath her clothing.
[22] T53.19
CP said that she did not tell anyone about this because the accused told her not to tell anyone or she would no longer have a family. CP said she was scared and believed him. She thought that maybe he would do something to her mother or to her or her sister.
CP said that she never saw the accused and her mother being affectionate. She formed the view that her mother was in an abusive relationship. She said that impacted on whether she was going to complain about his conduct towards her because she was terrified of him.[23]
[23] T55.26.
CP said that she would often see the accused go into her sister’s bedroom at Chirton Street and stay there for a long time with the door shut.
Her mother first questioned her when she was around 11 years old, asking if the accused had ever touched her vagina. CP said that she told her mother ‘no’. They had a discussion where her mother asked “has he ever molested you” and she said ‘no’.
When asked whether she later told her mother what had happened, CP said “yeah, so once she described to me that what a paedophile meant and once I overheard her and my Nanna speaking about it, I started asking questions and then I said to my mum ‘he may not have touched me there because I didn’t let him but he did touch my breasts and he did threaten me”.[24]
[24]T56.5.
She first went to police in 2019. She was called in as a witness after her sister had given her statement. She said that her sister never speaks to her about what happened to her.
CP said EG called her and said that she may get a call from a detective to give her evidence as a witness. When she went to give her evidence she learnt that what had happened to her was enough to press her own charges against the accused.
In cross-examination, CP denied that she had never lived at Sissman Street and had only visited her father there.[25] CP said that she did not know how long her brother CG lived at Sissman Street and did not remember the accused’s brother Phil living there.
[25] T59.13.
CP said that at Sissman Street her father would come and say goodnight to her and give her a cuddle and a kiss. She was around the age of five and he rubbed her chest, grabbed her nipples and tickled her body.
She believed she was about six when she moved to Chirton Street. She thought she was seven when the accused left. She did not remember whether CG was still there when the accused left. She had been at home the day that the accused left. She was going to school and was there when her mother presented EG’s diary to the accused and she saw him leave.
When she saw the accused come out of the shower with a towel she was in the hallway or in her bedroom. She said there had been multiple occasions where he would open his towel to her. She did not have a clear memory of where her mother was on any occasion.
When the accused put his hands up her clothing and played with her nipples and breasts in the lounge, EG was not in the house. Her mother would be either in the garden or at her Nanna’s. That was pretty much all that her mother did with her time.
CP remembered seeing the accused tickle her sister and get under the sheets at Sissman Street. At Chirton Street he would spend most of his time one-on-one with her sister with the door shut. She did not see anything happen between the accused and EG at Chirton Street in the loungeroom.
She did not remember what time of year it was that her father left Chirton Street.
Evidence of LG
LG said that she first met the accused in around 1992/1993 when she moved into a house next door.
She and her daughters moved in with the accused at his house at Sissman Street and CG moved in for a couple of weeks but then moved out with friends. The girls shared a bedroom. They lived at Sissman Street for a bit less than a year then secured a private rental at Chirton Street, Elizabeth North. Initially her daughters had one room and CG had another until he moved out with friends. EG and CP then had their own rooms.
LG said that she first heard of allegations concerning the accused when they were packing up at Chirton Street because they had to move as it had been sold. EG was at a friend’s house and LG was going through EG’s room and noticed “very dark tones” written on the back of a door. She then found a diary and in it there was reference to the accused touching EG inappropriately and how EG was feeling about it.[26]
[26] T73.16.
LG said that she confronted the accused with the diary, who denied ever having touched EG except when changing her nappy. The accused left the property and they have had nothing to do with one another since.
The next day she rang ‘FAYS’ and spoke to someone who told her that due to EG’s age, she would be too young to go to court.
LG said that she learnt of allegations concerning CP when she asked CP around that time if the accused had ever touched her. CP told her he had ‘tried’ but that CP had not let him.
In cross-examination, LG said that for the last year they were living at Chirton Street, she and the accused were not getting on and the accused hung out in the shed with his brother. She agreed that she moved out of Chirton Street roughly around August 2003 and that it could have been some time in that year that she found the diary. She said that it was not long before they moved out of that address.
LG agreed that before moving to Chirton Street, she lived at an address at Whitsbury Street. During that period the accused was spending most of his time at Sissman Street and she and her daughters would visit every so often, but never stayed nights there. When asked whether they in fact had lived at Sissman Street, LG said “we did live there for a time because I had nowhere else to go, because the girls had their own rooms there, my stuff was all there, so we did live there”.[27]
[27] T81.22.
LG denied that the most they ever did was visit Sissman Street. She said they stayed at that address for some months. She said she was taking the girls to school from there on the bus. LG accepted that they moved in to Chirton Street at the end of 2001.
LG said she had no memory of ever seeing the accused walk through the house out to the shed with just a towel on.
LG said that her son CG was not at the house at the time that she saw EG’s diary. When she confronted the accused, EG was not there. She grabbed CP and they went to her mother’s house. When she got back the accused had gone.
LG agreed that she had never seen the accused inappropriately touch her daughters.
Examination of CG
CG said that he lived at the Chirton Street address for around six months when he was around 18. He was there full-time. EG and CP shared a bedroom. The accused had a room out the back. CG said he lived at Chirton Street when the accused moved out. He saw unusual behaviour between the accused and EG which he described as the accused going into his sister’s room and shutting the door behind him. Sometimes he would see the accused under the blankets in the girl’s bedroom. Nothing that he saw made him confront the accused.
CG agreed there was a time when he lived at Sissman Street. He said that his mother and the girls were living at Sissman full-time for a period, possibly a year.
Police Interview with the accused
The accused was interviewed by police on 9 July 2018.
During the interview the accused answered police questions. He agreed that LG had lived with him at 11 Sissman Street, Davoren Park as she had lost her house and needed somewhere to go. He agreed he lived in the shed for a while at Chirton Street.
When the allegations that EG had made were put to the accused, he immediately denied he had touched EG and said that he loved her as if she was his own and had brought her up. He said she was like a daughter to him.
Prosecution address
The prosecution submitted that there was no doubt that the family all lived at Sissman Street.
The prosecution submitted that EG gave a compelling account of what had happened to her and the escalation of touching to penetration of her vagina. Her description of the events, the prosecution argues, was consistent with grooming behaviour by the accused. The accused gave positive reinforcement to EG in relation to telling her that her sister would not let him do this, but that EG loved him more. EG’s evidence as to the first time the accused touched her, was linked to her memory being that the accused was happy with her calling him Dad.
It was plain, the prosecution submitted, that EG did not recall who was living at addresses at particular times. Nor did she recall what she was wearing, or what time the events occurred. She did not recall who was around except on certain occasions where her Nanna and mother were in the dining room and her little sister was playing the PlayStation in front of her.
The prosecution argued that the accused’s behaviour when he would leave the shower to go back out into the shed, opening his towel to expose himself was grooming behaviour, normalising exposure of his penis, setting the groundwork.
The prosecution submitted that the accused’s behaviour was an act of indecency and more than simply having been in bad taste or inappropriate parenting. CP’s recollection of an erection cannot be characterised as innocent or not having occurred in circumstances of gross indecency.
LG was plain as to her emotional state after her confrontation with the accused, explaining why there might be differences in account as to who was present at the relevant time.
The threat that the accused made to CP that she would no longer have a family if anyone was told, was in the prosecution’s submission, strikingly similar to what was said to EG.
CP gave evidence of seeing the accused going into EG’s room and often shutting the door at Chirton Street, consistent with the observations made by CG.
On the prosecution case, there are sufficient similarities between the complainant’s accounts to establish propensity. In particular, the accused telling the complainants not to tell anyone and making a threat, their description of the accused exposing himself and, the accused’s conduct in the bathroom observing that they were both growing up.

The prosecution submits that the case against the accused plainly rises or falls on the evidence of the two complainants. Their evidence, the prosecution submits was compelling and not overemphasised or exaggerated. When the complainants did not know something or could not remember, they did not embellish.
The prosecution says the touching that EG alleges amounts to an indecent assault, while inserting his finger into her vagina amounts to the offence of unlawful sexual intercourse offence. The accused touching EG’s breasts in the kitchen is an indecent assault and exposing his penis to her is an act of gross indecency.
As to CP, even if the tickling is attributed to horse play, she gave a description of squeezing and pulling of the nipples every time he gave her a cuddle at Chirton Street. That behaviour amounts to an indecent assault. As to exposing his penis, there is no doubt that if the accused’s penis was erect, that amounts to an act of gross indecency, as does any invitation to touch his penis. As to the other occasions where the accused is said to expose himself, that, the prosecution argues, goes beyond simply bad taste.
Defence address
Defence counsel argued that in relation to EG, there was no doubt that if I found that particulars (a) and (b) of the offence occurred, then those would be sexual acts. Findings in relation to particular (c), would be subject to when I found that offending occurred. The acts in particular (d), were not necessarily acts of gross indecency given EG’s assessment of the accused’s behaviour at the time.
In relation to CP, defence counsel argued that the acts described in particular (a) were not necessarily a sexual act. The same could be said in relation to the flashing incidents alleged in particular (b).
Defence counsel accepted that were I to find that the accused came out of the shower with an erection and said ‘touch this,’ that would certainly be an act of indecency.
Defence counsel submitted that there was a great deal of confusion amongst the witnesses about the movements between houses but accepted that at some stage the family were all living at Sissman Street. While acknowledging that the prosecution do not have to particularise a particular day or place necessarily, there must, defence counsel argued, be some form of structure around what has been alleged to have any confidence that what is alleged, actually occurred. There was inconsistent evidence as to whether CG was at Sissman Street. EG did not remember very much about a lot of things and her evidence, defence counsel submitted, was remarkably vague, even by the standards of this historical sort of alleged offending.
While accepting that there is a degree of latitude given to complainants in these sorts of matters, here, I was being asked to rely on evidence where there is no other support for the evidence and in fact in some areas, there is a contradiction. With respect to the flashing, EG made it clear that CP was in her room at the relevant times, while CP said that she was in her own room. CP said that she saw an erection while EG said she could not remember whether she saw an erection. The prosecution relies on CP being told ‘come and have a look and touch it’, while EG does not say anything like that occurred. Defence counsel submitted that the version of events from CP and EG are so different that there could not be a finding that any of what was alleged in relation to the accused exposing himself or inviting his penis to be touched occurred beyond reasonable doubt.
Defence counsel argued that the lack of information surrounding the alleged events described by the complainants meant that they were just incidents in essentially a factual vacuum. CP did not remember the incident described by EG in the lounge where CP was present. EG said she believed that her mother was in the kitchen and LG said that at no stage did she have any inkling of anything happening between the accused and her daughters. This, defence counsel submitted, was surprising given the evidence that LG was around all the time.
CG said that he was at Chirton Street for six months and was there when the accused left. The agreed facts suggest that the family left Chirton Street in August of 2003 and the mother’s evidence was that she found the journal or diary because she was packing up for them to leave, thereby suggesting that they left Chirton in mid-2003. In relation to both counts, the timeframes end in May 2002. While times and dates are not necessarily particulars by which the prosecution case is bound, at the same time defence counsel argues, that shows the degree of confusion. There is confusion according to the agreed facts and LG’s evidence that the accused left sometime mid-2003. CP’s evidence was that the erect penis incident and some of the touching in the lounge occurred in the last few months in Chirton Street, showing the extent of confusion and lack of clarity that underpins the prosecution case generally.
Defence counsel argues that what is alleged to have occurred in the shower were not incidents of gross indecency and are a very clear example of the vagueness and the lack of certainty in the prosecution case. Clearly the dates on the information must have come from somewhere. Furthermore, EG said that at the time of the shower incidents, she thought it was something funny or stupid. She said it was a ‘gross stepdad thing’ and that at the time she did not think it was sexual or inappropriate. Even recognising they were children at the time, this does give a flavour to the fact that unless satisfied that the accused’s penis was erect or had made comments about touching his penis, it is difficult to see that the prosecution has proved beyond reasonable doubt that the accused’s behaviour was anything more than just what EG had described. Defence counsel invited me to consider that the vagueness of EG’s evidence, even allowing for the time that passed, must be seen in the context of the prosecution still having to prove their case beyond reasonable doubt.
With respect to the offending against EG, defence counsel suggested that while I might have some suspicions about what took place, the vagueness and contradictions between the prosecution witnesses should cause reasonable doubt.
In relation to CP, even if some tickling occurred, defence counsel suggested that it was a father tickling his daughter. He was saying goodnight. EG was in the same room and there is an explanation which is a reasonable explanation that this was just affection by a father to his daughter. It would be different if CP had been older. It would have been different if there were some suggestion that the accused had been playing with her vagina.
Given the disparity between EG and CP’s versions I should, defence counsel argued, have a doubt as to whether the incidents when the accused opened his towel, occurred at all. If the erection and words of “come and touch it” had been spoken, logically, the older child EG, might have heard this happen between CP and the accused, particularly when EG had said that CP was in her room. While not suggesting that there is evidence CP was in the room on every occasion, that was, defence counsel submitted, not explored. There was no information given as to how many times it occurred where EG and CP were not in the room together. CP said that there was never any touch or attempt to touch her vagina. The defence say that distinguishes the nature of the offending between the two complainants. Defence counsel submitted that the evidence of CP is too vague and that even if some of it did occur, it was not sexual in nature.
When LG approached the accused and confronted him, he immediately denied the offending. The accused made denials in the record of interview which are consistent with the denials that he immediately gave to LG. The accused’s reaction was shock and denial.
The lack of clarity about where people were living and when, means it is not possible to say the offending occurred beyond reasonable doubt.
Defence counsel said that while it was a forensic decision to accept that these matters were properly joined and cross admissible for background purposes, the extent to which there are similarities is very limited.
As to forensic disadvantage, there were work records when the accused was living at Chirton Street, which may have put some context around timeframes. There may have been, if these matters had been reported earlier, more information that the accused could have obtained about precisely where people were housed and witnesses potentially able to be called to identify the living arrangements outside of the family group.
As to LG speaking to police in 2004, while the defence accept that at the time that the accused left the family home, the complainants said something to their mother, I am reminded that such complaints are not evidence of the truth. Neither the complaints nor the finding of the diary, can be used for the truth of the matter. Finding the diary is simply evidence as to how the relationship between the accused and LG and the complainants ended and why the accused left in what appears to be mid-2003.
Cross-admissibility
The prosecution at least initially, argued that there are sufficient similarities between the accounts given by EG and CP to establish propensity. The evidence that the accused told both complainants not to tell anyone and the manner of the threat, was submitted as striking, as was the description of the accused exposing himself. Additionally, the prosecution argues that EG describes CP as being present at the same time for that offending and they both give an account of the accused commenting regarding their bodies developing when he is in the bathroom. CP described the accused tickling her all over and EG said that the accused’s hands were all over her.
While the defence made no application for severance of the charges, I have in the end, found that the evidence of each complainant is not cross-admissible.
As Kourakis CJ emphasised in R v C,CA,[28]
The question governing the admissibility of similarity of account evidence is therefore whether the accounts of the complainants have such a degree of similarity that the hypothesis that they independently fabricated, imagined or otherwise were mistaken about the offences, for reasons peculiar to each of them, is so improbable that the probative value of the evidence substantially outweighs its prejudicial effect. The prejudice lies primarily in the antipathy to the accused which the multiple allegations will engender. That prejudice may distract a jury from any defects and frailties in the evidence directly bearing on the offences charged and predispose them to convict irrespective of the strength of that evidence. It is important therefore that the similarity of the accounts very strongly exclude the possibility of independent concoction so as to minimise the risk of a miscarriage of justice on that score.
[28] [2013] SASFC 137 at [61].
The nature of the offending against EG was in my view of a different nature to that alleged by CP such that it cannot be said that there was such a degree of similarity to support an analysis of the improbability of independent fabrication, imagination or mistake. CP made no allegation of having been touched on the vagina or that the accused made any attempt to do so. In the end, the only similarity that could be said to have been striking, was with respect to the threats not to tell anyone the accused is said to have made to each complainant. As I will discuss later in my assessment of CP’s evidence, my impression was that there may have been some adoption by her of the evidence given by EG on the topic.
As to having exposed himself to them when he left the bathroom to return to the shed at Chirton Street, while on the face of each account there were similarities, there were also differences. I have found it difficult to assess the evidence each gave on that topic given that there was not, in my view, a thorough exploration of the topic in either complainant’s evidence. It appeared that the alleged offending did not necessarily take place when the complainants were together, and in any event, as I have said, there were differences in the accounts each complainant gave as to the nature of the accused’s behaviour.
Any similarities were not, in my view, of sufficient probative value to substantially outweigh the prejudicial effect of the evidence of each complainant being cross-admissible against the other. Accordingly, I have not made any use of the evidence of the other complainant when evaluating the evidence against the accused when dealing with the counts separately.
Consideration
All of the witnesses who gave evidence in this matter were recalling events alleged to have occurred more than two decades ago. The passage of time between the alleged events the subject of the offending, and the circumstances surrounding the alleged events, has resulted in significant forensic disadvantage to the accused. The forensic disadvantage may have adversely impacted upon the accused’s memory and his ability to instruct his Counsel. I have taken that disadvantage into account in scrutinising the evidence.
Count 1
As I have said, there is no doubt that the time that has elapsed between the alleged events and the trial has disadvantaged the accused’s ability to meet the prosecution case.
There were differences in the evidence as to the where and when family members were living at various times, which would not appear to necessarily match the Housing Trust records. For example, while the records show that the accused was living at Sissman Street between December 1994 and May 2002, it was apparent that he was residing for some time at Chirton Street which the records show was rented to LG between November 2001 and August 2003. Clearly the family lived in several houses over the years, and as a young child, EG would understandably, have difficulty recollecting with any real accuracy.
EG’s recollection was that her mother and the accused separated for a time when she was around the age of 7 and she moved with her mother to an address at Bloomfield Crescent. Housing records show the tenancy at Bloomfield Crescent went from June 1998 until March 2000. EG agreed she would have been around 8 or 10 years old when living at Bloomfield Crescent.[29]
[29] T27.19-27.22
When her mother and the accused got back together, after ‘one or two years’ they moved into the accused’s home at Sissman Street.[30] EG said that she lived at Sissman Street for around 2 years.[31] The first inappropriate touching EG recalled was at Sissman Street when they were on the accused’s bed and there was a conversation regarding calling him ‘Dad’. EG was asked about how old she was at the time, and she said that she had been around seven or eight.[32] She thought she was roughly 10 or 11 when they moved from Sissman Street.[33] EG said that was an estimate based on other things that were happening in her life.[34] LG said that she and the complainants lived at Sissman Street ‘for a time’ because she had nowhere else to go. Despite a focus in cross-examination on the complainants and LG never having lived at Sissman Street, I am satisfied that it is most likely they were living there after LG moved out from Bloomfield Crescent. According to the records, this was around March 2000, and until LG moved to Chirton Street in November 2001, when EG was aged between 9 and 10 years.[35] Accordingly, I find that EG is mistaken with respect to her age at the time that the events she described had occurred at Sissman Street. As I have said, given the frequent change in address, the instability in LG and the accused’s relationship, and the length of time that has passed, that is not surprising and showed that EG had not gone about the task of reconstructing her evidence.
[30] T12.13
[31] T14.3
[32] T17.30-17.38
[33] T18.4
[34] T32.34
[35] EG said that after Sissman Street they moved to an address in Whitsbury Road, staying around 6 months. The accused was not with them at that address. T14.9-10
While the length of time has meant that EG could not remember specific details such as what she was wearing at relevant times or where and when certain events took place, having examined her evidence with care I found her to be a careful and thoughtful witness who spoke without any sign that she was attempting to make the allegations more serious or more detailed when she had no memory. Indeed, it would be of concern had EG had a memory of what at the time would have been inconsequential details.
It was my impression that EG’s recollection of the accused engaging in certain acts with her at Sissman Street and Chirton Street was genuine. It is of note that those events EG did recall from what she said was ‘routine’, were those that had features which likely made them more memorable, that is the conversation she had with the accused on the first occasion at Sissman Street; the first time the accused put his finger inside her vagina; when the accused told her that he had tried to touch CP; sitting on the accused’s lap while he was touching her on the inside of her underwear and while CP was on the floor in front playing on the play station; and, the occasion she was washing the dishes and the accused touched her on her breasts and vagina, while telling her he was trying so hard to stop but could not help himself.
In assessing EG’s evidence, I have had regard to her complaint to her mother and the circumstances in which it was made. In my assessment, her initial denial was understandable in circumstances where the accused had made threats as she has alleged. While I remind myself that EG’s complaint must not be used for the truth of the allegations she has made, her complaint was made at a time, when confronted with her diary, and to the person I would expect. The uncertainty as to who was present in the house at the time LG confronted the accused or the timing of the confrontation relative to the family moving out of Chirton Street, do not detract from the use that can properly be made of the evidence.
I do not accept that performing a sexual act in the presence of her much younger sister or when other family members had been nearby, was implausible. Given the routine nature of the offending, committed without complaint by EG and having threatened EG, the accused was no doubt emboldened to take risks.
There was no suggestion that because of the routine frequency of the accused’s assaults, she had constructed an account of the events about which she did have a specific memory. I accept that the instances that EG was able to recall, represent examples of the charged particulars in (a), (b) and (c).
As to the acts of exposing his penis, EG’s evidence of the accused’s behaviour was compelling, and I accept that the accused acted as she has alleged. Her assessment of what she witnessed at the time was consistent with what would be expected by a child of her age. There was no suggestion of the accused exposing his penis to EG in any other setting, or that he had asked her to touch his penis at any time. I find that I cannot be satisfied that the accused’s behaviour on the evidence before me, while certainly poor parenting and in poor taste, was grossly indecent. I have also accepted EG’s evidence with respect to the uncharged acts where the accused would enter the bathroom while she was showering and comment upon her development and had on one occasion asked if he could get in with her. I am however, not prepared to accept that such comments necessarily indicate that the accused had a sexual interest in EG and was willing to act upon it. I have found it difficult to make a proper assessment of the statements the accused made without understanding the context in which the statements were made and I have had no regard to that evidence in arriving at my verdict.
During his interview with police, the accused denied he had offended against EG. The accused did not have to answer police questions and I have borne in mind that the answers he gave are not sworn evidence tested by cross-examination. By participating in the interview, the accused took on no onus of proof, however the ultimate issue is not whether the accused’s evidence is to be accepted or preferred to the prosecution witnesses’ evidence, but rather whether notwithstanding the accused’s evidence, the prosecution has proved its case beyond reasonable doubt.

Having carefully scrutinised EG’s evidence, together with the other evidence including the accused’s interview with police, his denials, and the submissions of counsel, I am satisfied that EG was telling the truth regarding the sexual acts committed by the accused and I reject the accused’s denials.
I am satisfied beyond reasonable doubt that the accused committed acts of indecent assault and unlawful sexual intercourse multiple times against EG between 1 January 1998 and 7 May 2002, which I find amounts to maintaining an unlawful sexual relationship.
I find the accused guilty of count 1
Count 2
I found that CP was doing her best to truthfully recollect what she could of the accused’s behaviour towards her.
CP said that her first memory was of living at Sissman Street. When the accused came into the bedroom that she shared with EG, the accused would give her a cuddle and a kiss, rub her on the chest, grab her nipples and tickle her body.
As indicated above, I have found that the complainants and their mother lived at Sissman Street between March 2000, until moving to Chirton Street in November 2001. At those times, CP was therefore aged between 5 years and 10 months and 7 years and six months.
CP said that the accused would open his towel and show her his penis. He would invite her to touch his penis and to ‘have a look’. He would make comments to her about how she was growing up when she was around 6 or 7 years old. While the accused frequently behaved in this way, CP recalled one specific occasion when the accused’s penis was erect, and an occasion when on the couch the accused had pulled on her nipples and squeezed.
As discussed with respect to EG’s evidence, while I am critical of the accused’s behaviour in exposing his penis, I am not satisfied that it was grossly indecent in the circumstances CP described. Furthermore, I do not accept the comments the accused made regarding CP growing up, necessarily showed that the accused had a sexual interest in her and was willing to act upon it.
CP had made no allegation about the accused touching or even attempting to touch her vagina. In the circumstances described by CP, I cannot not exclude as a reasonable possibility, that the accused’s behaviour in touching and tickling his daughter before bed when saying good night, was simply just being affectionate with her.
CP’s complaint to her mother was that the accused ‘touched my breasts and did threaten me’. In my view, her evidence gave some hint of this statement having been given against a background of understanding what EG alleged against the accused, although I note CP’s evidence was that EG would never speak to her ‘about it’. LG’s evidence was that she remembered asking CP around ‘that time’ if the accused ever touched her and that CP said he tried but that she did not let him. CP’s complaint cannot be seen as totally consistent with what she now alleges against the accused. No doubt there was heightened emotion between CP, EG and their mother at the time that there was some discussion about ‘paedophiles’. I know nothing more about those discussions, other than CP said that she had asked questions of her mother and Nanna.
There is, in my view, some risk that CP wished to support her older sister by perhaps recalling aspects of the accused’s behaviour and casting a different and more sinister light on them. While I accept that CP’s complaint to her mother happened some considerable time before the trial and there was as I have said, no doubt heightened emotion, such an inconsistency is relevant to the assessment of the reliability of CP’s recollection of the incidents and her perception of what occurred.
While I formed a generally favourable impression of CP and do not find that she has deliberately lied, I have, for the reasons set out above, concerns that affect the reliability and credibility of her evidence. Suspicion of an accused’s guilt is not sufficient and I find that I cannot exclude as a reasonable possibility that CP has confused what may have happened or that perhaps she has in some way been influenced by others in how she recollects what occurred. It must follow that I am unable to be satisfied that the accused asked CP to touch his penis, or that he showed her his penis when erect beyond reasonable doubt.
I find the accused not guilty of count 2.