R v Rendell - [2017] SADC 86

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RENDELL
[2017] SADC 86
Reasons for the Verdict of Her Honour Judge McIntyre
18 August 2017
CRIMINAL LAW - PARTICULAR OFFENCES
The accused is charged with three counts of Aggravated Indecent Assault occurring on 6 December 2015. The complainant was aged 13 years old at the time of the alleged offending.
Verdict: Guilty all three counts.
Criminal Law Consolidation Act 1935 s 56, referred to.
Palmer v The Queen (1998) 193 CLR 1, considered.

R v RENDELL
[2017] SADC 86
INTRODUCTION

The accused was charged on information dated 1 July 2016 with three counts of indecent assault contrary to Section 56 of the Criminal Law Consolidation Act 1935. The particulars of the offences are that on 6 December 2015 at West Lakes he indecently assaulted ES by inserting his tongue into her mouth on two occasions and by touching her on the breast. The accused entered pleas of not guilty and elected to be tried by a Judge without a jury.
The prosecution alleges that the accused took advantage of the longstanding and close relationship of friendship between him, his wife and the S family to commit the charged offences. The charged offences are alleged to have occurred on an occasion when ES and her sister MKS were staying with him and his wife. He and ES went for a walk around West Lakes. In count 1 it is alleged that in or around a footbridge over the Lake he kissed ES on the lips and inserted his tongue in her mouth. Counts 2 and 3 are alleged to have occurred on a park bench near a playground. It is said that the accused again kissed ES on the lips inserting his tongue in her mouth and that whilst doing this he touched her on the breast. Concerned onlookers called the police and the accused was arrested. The defence case is that the accused’s association with ES was innocent and the onlookers misinterpreted the situation. In particular the accused denied any touching of the type alleged to constitute the indecent assaults.
LEGAL CONSIDERATIONS AND GENERAL DIRECTIONS
The Court of Criminal Appeal in this State has made it plain that it is not necessary for a Court, having conducted a trial by Judge alone, to set out in the reasons for verdict the standard or obvious directions of which the trial Judge is bound to be aware. I do nevertheless remind myself of the following:
·An accused person is presumed to be innocent of a charge unless and until his guilt has been proven beyond reasonable doubt.
·The prosecution bears the burden of proving a charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence. The accused does not carry any onus of proof and, to the extent that he might put forward a defence, he does not have to prove it. By way of amplification, it is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate that the accused is probably guilty. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to any element of the charged offences, then I must give the accused the benefit of doubt and find him not guilty.
·In making findings of fact I must rely upon the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.
·There are three charges. Each is a separate offence. I must therefore consider each separately and return separate verdicts on each.
·I have reminded myself of the usual directions given in this State to juries concerning the proper approach to assessing the various witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact.
The accused elected to give evidence in this Court. I remind myself of the following matters:
·He was not bound to give evidence.
·He has gone into the witness box and he has taken the oath like any other witness.
·He has exposed himself to the test of cross examination.
·He could have remained silent leaving the prosecution to discharge its burden of proving the case.
·I should assess his evidence and the weight to be attached to it in the same manner in which I assess the evidence of all other witnesses.
·I further note that by entering the witness box the accused does not assume any onus of proof. The onus remains with the prosecution.
I remind myself that it is not a question of preferring one version over the other. The sole task before me is to determine whether or not the prosecution has proved the elements of the charges beyond reasonable doubt. If I am unable to say where the truth lies then necessarily it means that the prosecution has failed.
It was contended in the closing address that the prosecutor put the prosecution case in contravention of what fell from the High Court in Palmer v The Queen.[1]Specifically it is said that the prosecutor posed the rhetorical question of “why would the complainant make a false allegation against the accused?” in circumstances where the accused did not suggest any motive to lie on the part of ES. I have carefully considered those submissions, the transcript to which I was referred and the case law. I do not consider that the prosecutor did breach the prohibition; specifically she did not invite me to reverse the onus of proof.
[1] (1998) 193 CLR 1
There is no evidence before me enabling me to consider whether ES had a particular reason for making false allegations against the accused. The absence of evidence of a motive does not strengthen the prosecution case. It would be wrong to conclude that because there is no apparent reason to lie, ES must be telling the truth. Lies can be told for no apparent reason, it is not for Mr Rendell to provide a motive for ES to lie. At all times the prosecution bears the onus of proof beyond reasonable doubt. The prosecution must satisfy me beyond reasonable doubt that ES is telling the truth.
ELEMENTS OF THE OFFENCE
I have directed myself about the elements of the offence of indecent assault. An indecent assault is an assault accompanied by or committed in circumstances of indecency.
First, the prosecution must prove an assault. An assault is the intentional and unlawful application of force to another person. The force does not have to be great. A simple touching will suffice. The relevant touching must be deliberate. An accidental touching is not sufficient. In this matter, the touching said to constitute the relevant assaults are the accused inserting his tongue into the complainant’s mouth on or near the footbridge (count 1) and on a park bench (count 2); and touching the complainant on the breast on a park bench (count 3).
Second, the prosecution must prove that the assault was accompanied by, or committed in, circumstances of indecency. There must be a sexual connotation. Whether or not an alleged touching is indecent is for me to determine by reference to prevailing community standards of what is considered indecent. Whether or not the complainant, a child of 13 years at the time, consented to the alleged touching is irrelevant.
The key issue in this case is whether the prosecution has proved that the accused touched the complainant ES in the manner alleged. There is no suggestion of a lawful excuse for the touching rather it is said that it did not happen. If the touching alleged in each count has been proven there is no question in my mind that that it was deliberate and intentional and that it was, in all of the circumstances, indecent.
Uncharged Acts
On the prosecution case there were other instances of the accused inserting his tongue into the complainant’s mouth that are not reflected in a specific charge. It is said that the accused kissed the complainant on the lips without using his tongue during the course of a holiday in Adelaide in June/July 2015. At the conclusion of the holiday it is said that his conduct escalated to kissing the complainant on the lips and inserting his tongue into her mouth. This conduct is said to have occurred twice in Melbourne following the family driving back with the accused; before and after an argument between the accused and the complainant’s father.
The other uncharged acts alleged on the prosecution case occurred on the day of the charged offences. These alleged uncharged acts comprise two kisses involving the insertion of the accused’s tongue into the complainant’s mouth near a fruit shop and the accused allegedly kissing the complainant while sitting on what has been described in evidence as the first park bench.
The prosecution sought to lead the evidence of uncharged acts for a non-propensity purpose; namely to give the whole picture and to provide the context in which the charged acts occurred. They were said to assist in assessing the interaction of the accused and the complainant and to assist in understanding their respective actions.
On the prosecution case the accused’s relationship with the complainant and his conduct towards her over a period of time serves to explain why she in effect submitted to him, continued to interact with him and complained only when the police were brought to her. They are said to demonstrate that the charged instances, which might otherwise be considered surprising or unlikely, did not occur out of the blue, rather they show a pattern of behaviour by the accused which demonstrated how he felt emboldened to offend against the complainant on the charged occasions. Defence did not object to the evidence being led for those purposes and indeed relied upon the evidence as a means to impugn the reliability and credibility of the complainant. These are proper uses for that evidence.
The evidence of uncharged acts was not led in proof of the accused’s sexual attraction towards ES and I have not used it for this purpose or any other propensity purpose. Of course, before I could use the evidence of the uncharged acts for the purposes suggested by the prosecution, I would first need to be satisfied that they occurred. This is contentious. I will refer to the issues and my findings in the context of the evidence.
I now direct myself as to how I cannot use ES’s evidence of the uncharged acts. Even if I am satisfied that the uncharged acts occurred, that does not in any sense absolve me from the task of determining whether each of the charges themselves are made out. It is simply one part of the evidence presented in proof of each charged offence. I must not reason that because I am satisfied of any or all of the evidence of the accused’s uncharged acts involving ES, he must necessarily be guilty of something and convict the accused of any of the charges. That would clearly be a wrong approach and I have not adopted it.
I direct myself that it would also be wrong for me to reason that because I am satisfied of any or all of the uncharged acts by the accused, that he is the sort of person who would be likely to commit the offences with which he is charged and therefore he is more likely to be guilty of any of the offences. Again, that would be a clearly incorrect approach and I have not adopted it.
Undisputed Facts
The complainant is the middle of three children. She was born in September 2002. She has known the accused all her life. The accused and the complainant’s father worked together. Over time they became friends. When the complainant’s father married and had children the relationship between the complainant’s family, the accused and his wife became closer. Both families were at the time living in Melbourne in close proximity. The accused’s wife is the complainant’s god-mother.
In or about 2013 the accused and his wife left Melbourne and moved to West Lakes; a suburb of Adelaide. The two families remained in contact with each other. The accused and his wife would visit and sometimes stay with the complainant’s family in Melbourne. In mid-2015 the complainant, her mother and two sisters drove to Adelaide and stayed with the accused and his wife for some 4 or 5 days.
During the course of their stay in Adelaide the accused arranged for the S family and his wife to go to Cirque de Soleil. He and his wife also took the S family on day excursions including to the Adelaide Hills and Victor Harbor.
The accused drove back to Melbourne with the S family intending to stay overnight at their house. Shortly after arrival there was an argument between the accused and the complainant’s father. The circumstances surrounding that dispute are contentious and included two of the uncharged acts. I will deal with these in context. Ultimately the dispute was resolved and the accused stayed with the S family overnight returning to Adelaide the following day. The relationship between the two families recovered after the argument and they maintained friendly contact including by telephone and text messages.
The complainant’s father arranged with the accused and his wife that his two eldest girls, the complainant and her sister MKS, would fly to Adelaide in December 2015 to stay with the accused and his wife for a few days. The girls arrived on the afternoon of 5 December 2015.
On 6 December 2015 the accused, his wife, the complainant and her sister went to Port Adelaide where they took a Dolphin cruise on the Port River. Following this they returned to the accused’s home at West Lakes via a fruit shop on Military Road. The circumstances of the attendance at the fruit shop are controversial and include allegations of two uncharged acts.
The accused and the complainant ES then went for a walk around West Lakes. The charged acts and one uncharged act are alleged to have occurred during the course of that walk. The route of the walk was marked on exhibit P12 by the accused. I do not understand there to be any dispute about that evidence. The complainant’s evidence concerning the route taken on the walk was limited.
The complainant says that the incident forms the basis of count 1 on the Information occurred in and around a foot bridge that crosses over the Lake. The accused indicated that they did cross a footbridge after which they walked along Lochside Drive and Cooba Way to access a footpath which runs alongside the Lake. They were observed walking along Lochside Drive by three witnesses, Anne-Marie Blackborough, her partner Dylan Bryant and her father Trevor Blackborough.
The complainant and the accused stopped at a playground in Tiranna Way. They sat first on one park bench adjacent a play area on Tiranna Way and then moved to another park bench closer to the lake. The incident giving rise to the allegations in counts 2 and 3 took place on the second park bench.
A number of people were present in the park including Ann-Marie Blackborough, Trevor Blackborough, Dylan Bryant, My Hang Trinh and Luke Grinter. They all gave evidence of their observations. These are controversial. It is however agreed that Ann-Marie Blackborough telephoned 000 at 5.36 pm on Sunday 6 December 2015 and that police attended shortly thereafter. The first officer on the scene was Constable Natasha Altamura who arrived at Tiranna Way at about 5.46 pm shortly followed by Senior Constable Andrew Burford who arrived on the scene at 5.48 pm.
Witnesses
On the prosecution case the complainant ES, her mother RS, her older sister MKS and younger sister MES gave evidence. The people present in the park gave evidence together with the two police officers, Natasha Altamura and Andrew Burford. A number of agreed facts were tendered as exhibit P21 together with various photographs and maps. In addition the court conducted a view of the playground, the footbridge and the fruit shop.
On the defence case the accused, his wife and three character witnesses Graham Elliott, Alan Ross McCredie and Suzanne McPherson gave evidence.
De bene esse rulings
I received some of the evidence of the complainant’s mother, RS, de bene esse. This was evidence relating to two conversations that ES had with her between the two trips to Adelaide; one concerning the accused following the argument in Melbourne and one concerning the complainant’s attitude towards the December trip. Given that neither of these amount to a complaint by ES to her mother about any conduct of the accused the evidence of the content of the conversations is unhelpful to the determination of the issues. The first conversation adds nothing to the evidence and I uphold the defence objection to that material. I will not further consider that evidence. RS’s evidence about fact of the second conversation is however linked to the December trip and her observations of the changes in her daughter’s behaviour prior to that trip. It is to that extent relevant and I will receive that evidence for that purpose.
I received evidence as to the content of Ms Blackborough’s call to the police de bene esse. The recording was tendered and played.[2] Ms Blackborough gave evidence on that topic. I accept her evidence that she made the call as she was observing the accused and the complainant and that what was said in the call represents her contemporaneous observations. In those circumstances will admit that evidence.
[2] Exhibit P14
SC Burford gave evidence about speaking to the complainant at the playground. The evidence was received de bene esse as it was not plain that it was, strictly speaking, complaint evidence within the terms of s34M of the Evidence Act. Having considered the evidence and the submissions on that topic I consider that it ought to be admitted. There are some issues with that evidence which I will deal with in context.
The Complainant’s evidence
ES, the complainant, gave evidence about her family and their relationship with the accused and his wife. She said that she had known the accused and his wife all her life.
The accused’s wife was her god-mother. She described a very close relationship between the two families and described the accused as her favourite person in the world. They trusted him very much. He was very generous towards her and her sisters. She felt comfortable with him and enjoyed spending time with him. Before he and his wife moved to Adelaide she said that he would greet her with a hug and a kiss on the lips and he would do the same with her sisters. She thought he was an affectionate person.
In mid-2015 in the June/July school holidays, she her two sisters and her mother drove to Adelaide to stay with the accused and his wife at their West Lakes home. She was 12, turning 13, at the time. She and her family slept in the two upstairs bedrooms. ES and her younger sister slept in one room where there were two single beds; her mother slept in the room next door with her elder sister. ES said they went on a lot of day trips, including to Semaphore, Victor Harbor and Hahndorf.
ES said that during this trip to Adelaide the accused kissed her more frequently. She said previously the kissing was more for greetings but during the holiday it happened a few times a day. She said the accused’s kisses were different to what she experienced in Melbourne saying that it was “more touchy feely”; there was always some kind of physical contact with his hands on her body. She described a specific occasion in Hahndorf when her mother was shopping with her sisters and the accused asked her to go outside. They kissed on a seat outside the shop. She also gave evidence about being kissed at the accused’s house in her bedroom while sitting on her bed and downstairs at the bottom of the staircase near the door. She could not remember any other specific times that he kissed her during that trip. She agreed that the accused did not insert his tongue into her mouth on any of these occasions. She thought that his behaviour was a bit weird but she didn’t want to say anything to cause a fuss or any trouble. Other than this behaviour she enjoyed the holiday.

At the end of the holiday she and her family drove back to Melbourne with the accused. He was to stay one night with them. She then gave evidence as follows:[3]
[3] TX p22
Q.What happened when you got back to your house from Adelaide.
A.Well, we were all pretty tired, so we - my sisters and I, M and M, we all went into our own rooms, did our own thing, and I think mum and dad were making dinner.
Q.What happened while you were in your room doing your own thing.
A.Ken came in and he just said like 'Did you have fun in Adelaide? Did you have a good trip?' and I said 'Yes, it was good', and then he kissed me.
Q.Can you describe that kiss for us.
A.It was on the lips. It was - it seemed more passionate than the other ones, and lasted longer, but I'm not sure how long it lasted.
Q.Why did it seem more passionate.
A.I don't know, seemed like he was coming on a bit stronger.
Q.What was he doing that made you think he was coming on stronger.
A.I don't know.
Q.What was he doing with his mouth.
A.Well, he put his tongue in my mouth.
Q.And when he had his tongue in your mouth, what did he do with it.
A.Like, moved it.
Q.Where were his hands while he was doing that.
A.I don't recall.
Q.Did Ken say anything to you while he was doing that.
A.Yeah, I think - he got up and walked away and then came back and said 'I just can't get enough of you'.
Q.How did that kissing in your bedroom come to an end.
A.I think he just walked away.
Q.When you say 'walked away', where did he go.
A.I'm not sure but probably into the kitchen where mum and dad were.
Q.Do you have a door on your bedroom.
A.Yes.
Q.When Ken was kissing you, was your door open or closed.
A.Closed.
Q.Before Ken came into your room, was the door open or closed.
A.Closed.
Q.How did you feel about that kiss in your bedroom.
A.I thought it was very odd. I felt a bit uncomfortable, yeah.
Q.You said that you weren't sure what day of the week it was that you headed back. Do you know what time it was that you arrived home from Adelaide.
A.No. But sometime in the evening.
Q.Can you say how long after you got home that Ken came into your bedroom.
A.Would have been 15 minutes or 20, just an estimate. Not long.
She described her father and the accused having a verbal argument in the kitchen following this kiss in her bedroom. She said she was pretty shaken up by the argument as she had never heard the accused raise his voice to anyone. She removed herself and her little sister; they went into the rumpus room which was up a few stairs from the kitchen to play a video game.
The second uncharged kiss is alleged to have occurred following the argument. She gave evidence of this as follows:[4]
[4] TX p24
Q.Did you see Ken after the argument.
A.Yeah, he came up and he said that, like 'That's it, I'm leaving'. I could tell he was quite angry.
Q.How could you tell he was angry.
A.Well, I never really see - I don't know, he just looked upset.
Q.What did he say to you at that point.
A.That he's leaving.
Q.And what happened after he said he was leaving.
A.He hugged and kissed my little sister and I, M.
Q.Can you describe how he kissed you.
A.Yeah, he put his tongue in my mouth again.
Q.How long did that kiss last.
A.I'm not sure.
Q.What was he doing with his tongue when he had it in your mouth.
A.Just moving it.
Q.How did you respond to Ken.
A.Well, I didn't really say anything - well, I said goodbye, of course, and like 'No, don't leave', because I think he said he was never coming back, but then he left and I turned to my little sister and I said 'He just put his tongue in my mouth' and, you know, we were both like 'That's a bit strange', and yeah.
Her mother followed the accused and brought him back. Her father apologised to the accused. ES told the accused that she was glad he was back. He said that the only reason he came back was for her.
ES then described another holiday in Adelaide in December 2015. On this occasion she was 13 years of age and she flew to Adelaide with her eldest sister who was 14. The holiday was to be for 5 days. She was really anxious about the trip to Adelaide but wasn’t sure if it was because she would be away from home or because she was nervous about seeing the accused again. She spoke to her mother about her anxiety without disclosing the reasons. Her mother dismissed her concerns.
She and her sister were collected at the airport by the accused and his wife. They had dinner at their West Lakes home and then went to Semaphore Beach for an ice cream. The next day she, the accused and her sister went back to Semaphore Beach for a morning swim. In the afternoon she, her sister the accused and his wife went to Port Adelaide. They had a Dolphin cruise on the Port River. They had lunch on the boat and after the cruise they went back to the accused’s West Lakes home. On the way they stopped at a local fruit shop. ES thought they did this because the accused’s wife wanted to get some juice. ES said that initially all four of them were going to go into the fruit shop but the accused said “I’m going to go and have a look at the water”. She went with him while her sister and the accused’s wife went into the fruit shop.
She then gave evidence as follows:[5]
[5] TX p28
Q.What happened when you went to look at the water.
A.So we started walking and he said to me - I'm not sure if he said this before or after he started kissing me, but he said 'You do something to me that you shouldn't do' and I looked at him, like, I was confused, I didn't really know what he meant, so I just gave a look of confusion and he said 'I think you know what I mean'.
Q.Did Ken say other things about you while you were looking at the water.
A.I don't know.
Q.You said that he was kissing you. Can you describe that kiss.
A.Yeah. It lasted for quite a long time I think. It was on my lips, and tongue was involved.
Q.So can you describe whereabouts you were when this happened.
A.On the pathway to the beach.
Q.Did you notice anyone around.
A.Yeah, well, when we were standing on the path, some people were coming and so he kind of pushed me away and stopped, but then they walked past and when they walked away he continued.
Q.How long were you away from L and your sister for.
A.A few minutes.
They then drove back to the accused’s home. She was not sure of the time but believed it was in the early evening. It was a hot day. When they got home the power was out. The house felt really hot so she suggested to her sister that they go for a walk around the lake. Her sister did not want to go and the accused said that he would go with her. She said they then left the house and walked towards the lake. She then gave evidence as follows:[6]
[6] TX p30
Q.How did you get across the lake.
A.A bridge, footbridge.
Q.After you'd gone over the footbridge, did you say something to Ken.
A.I'm not sure if it was at the base of the start of the bridge, or on the bridge, or at the end, but at one point I said 'Adelaide is so beautiful, it's so nice here' and like that, yeah.
Q.What was Ken's response.
A.He said 'The only thing that's missing is you'.
Q.After Ken made that comment, what happened.
A.He kissed me using a lot of tongue and afterwards he made a comment saying 'That's a French kiss, it's very sexy'.
Q.You said he used a lot of tongue.
A.Mm-hmm.
Q.I take it the kiss was on your mouth.
A.Yes.
Q.What was he doing with his tongue, where was it.
A.In my mouth.
Q.And what was he doing with it when it was in your mouth.
A.Moving it.
Q.How long did that kiss go for.
A.I'm not sure.
Q.Can you give any estimate.
A.I think under a minute, but over 30 seconds.
Q.Where were Ken's hands while he was kissing you.
A.I don't recall but they were on my body.
She was asked to describe the area where this occurred; she said she thought they were behind some houses, there were trees around, it was on a path near the bridge and the water was right there.
After that kiss they continued walking. They were holding hands or he had his arm wrapped around her waist or neck, she didn’t remember. She said she was feeling anxious and “kind of numb”. They then got to a park area and the accused suggested that they sit on a park bench. She then gave evidence as follows:[7]
Q.What did you do once you got to the bench.
A.We sat down and was just talking, saying - well, first, he began to kiss me again, on my mouth, using tongue, and he - in between like he would say, he said something to me which actually stuck with me, he said 'You can't tell anyone about us, even your closest friends', and that was when I came to the realisation that it wasn't just - it wasn't okay, and I just felt this, in my gut, I don't know, it was just telling me that I had to go.
Q.You said that he said 'You can't tell anyone about us'. Did he say why you couldn't do that.
A.He said 'Do you know what will happen?' and I was like 'No', 'I'll go to gaol. You don't want that, do you?' and then I just felt guilty.
Q.Can I just ask you some questions about the bench that you sat on when you first got to the park. Can you describe how you and Ken were positioned on that bench. You've said you were sitting. How were you bodies compared to each other.
A.Well, I think we were just, he was sort of leaning into me. I was just facing the front.
[7] TX p33
She thought they were on the bench for five minutes more or less. She could not say whether the accused was to the left or right of her. She had a feeling that people were watching her and she felt uncomfortable. She said the accused suggested to her that they go “over there” and that when they got over there, there was another bench. She then gave evidence as follows: [8]
[8] TX p34
Q.When you got to the other bench, what did you do.
A.He started kissing me again on the lips.
Q.Can you describe how you and Ken were positioned at that other bench.
A.Well, he seemed to be trying to move more closer to me. I didn't really know what he was trying to do, but he like - he put his hand like under my shirt and up my back and then like around to my breast and he had never done that before.
Q.At the second bench, were you standing, sitting, something else.
A.Sitting.
Q.You said that Ken was trying to move more closer to you.
A.Yep.
Q.Can you describe for us what he was doing when he was trying to move more closer.
A.It's hard to explain. He was just like shuffling his body towards mine more.
Q.You said that he started kissing you.
A.Yep.
Q.Can you describe that kiss for us.
A.It was quite passionate and tongue was involved again, it was on my mouth.
Q.So he is kissing you on your mouth.
A.Yep.
Q.How did that kiss on the second bench compare to the kiss on the first bench.
A.Well, I just think it, he was just being more - he seemed more powerful and stronger, like it was more forceful.
Q.When you said, I think you said it was more passionate, what do you mean by that.
A.Well, I don't know, stronger.
Q.Can you say anything about how long the kiss lasted.
A.No.
Q.What was he doing with his tongue when it was inside your mouth.
A.Moving it.
Q.You said that Ken put his hand on your breast.
A.Yeah.
Q.Had you start to develop breasts by that stage.
A.Not properly.
Q.Were you wearing a bra.
A.Yep.
Q.Where was his hand compared to your bra.
A.It was like on top of it, so it wasn't under, but on top of the bra.
Q.What did he do with his hand when he had it there.
A.Just holding it. Just gently though, it wasn't -
Q.How long did he have his hand on your breast for.
A.I'm not sure.
Q.You said that he had also put his hand on your back. Was that over or under your top.
A.Under.
Q.What was he doing with his hand when it was on your back.
A.Just running it up and down.
Q.Running it up and down from where.
A.Just from the top of my back to -
Q.To where, sorry.
A.- to my bum.
She said that during the course of this the accused said “I just want to kiss you all over your body”. She said he kissed her more than once on the second bench but she could not say how many times he kissed her nor how long they were on the second bench but at some point the accused said to her “let’s go home” and started walking away. At this stage two men came over from the park and asked them to come over. She said the accused looked at her and said “if they ask how old you are just say you are my girlfriend and you are 18”. She said her heart “kind of dropped” and she was shaking, she didn’t know what was going to happen. She then said the following conversation took place:[9]
[9] TX p37
Q.Did the males say more things to Ken.
A.They said like 'What are you doing -', I think they said 'How old are you?', and he answered for me, he said 'She's 18', and they said 'Are you sure?', to me and I just nodded my head.
Q.Were you 18.
A.No.
Q.Why did you nod your head.
A.Because he told me to.
Q.Did the males continue to talk with Ken.
A.Yeah, they were arguing. I think he changed his story, because at first he said I was his girlfriend and then he said 'She's really 13 and she's my granddaughter', and he was saying like 'That's not how you treat your granddaughter' and, yeah.
She burst into tears because she was really scared and upset and some ladies took her over to sit with them. She understood that the police were on their way. The accused’s wife and her sister arrived shortly after.
In cross-examination the complainant confirmed that the two families were very close and regularly got together for Christmas, birthdays and things of that nature. She agreed that she treated the accused and his wife as almost like grand-parents and that she adored them both. She remained in contact with the accused and his wife after they moved to Adelaide. They would text each other and that she would send messages to the accused and his wife expressing her absolute love for both of them. She agreed that this did not change right up until December 2015. She said that until December 2015 she had a very happy and enjoyable time in the company of the Rendells. When they moved to Adelaide the whole family missed the Rendells but maintained contact.
ES agreed that the mid-year holiday in 2015 was a very good holiday. She was asked about going to Beerenberg on that trip. Initially she said she did not know what that was but agreed that they had been there when reminded that it was about jam. She said that was not the location that she was talking about when she described the kiss rather it was another location in the main street of Hahndorf. She was then asked about the detail of this and that portion of cross-examination concluded with the following:[10]
[10] TX p52
Q.So all you can remember is that the two of you were seated on a chair in the main street of Hahndorf.
A.Yeah. There were like stairs going up to like the shop, and there was a chair on like the verandah.
Q.And he just kissed you.
A.Yes.
Q.You can't remember anything about what he said.
A.No.
Q.Or what you said.
A.No.
Q.Or why he kissed you.
A.No.
Q.But there was nothing wrong about what happened on that occasion, was there.
A.I don't know.
Q.From your perspective, you weren't uncomfortable, were you.
A.A little bit.
Q.You were. Did you say anything.
A.No.
She was also asked about Victor Harbor and walking to Granite Island. She said she could not remember being alone with the accused on Granite Island or Victor Harbor and agreed that there couldn’t have been any kissing that took place other than in the company of someone else.
She was then asked about passionate kissing in Victor Harbor, Granite Island or Hahndorf. There was an objection to the use of the word “passionate” which was clarified as follows: [11]
Q.You understand what I mean by 'passionate', don't you.
A.Did you mean passionate kissing using the tongue?
Q.Yes.
A.No, there was no -
Q.No tongue-kissing.
A.No.
[11] TX p57
ES was then asked whether she told her mother that the accused had kissed her passionately at the horses once they were off Granite Island. She said she did not remember. She said however that there was a kiss at Victor Harbor but it wasn’t passionately and she didn’t think she said that to her mother.
She agreed that there was no tongue kissing or passionate kissing in South Australia in the June holidays.
She was then cross-examined about the two alleged tongue kisses in Melbourne. She said she did not know how long the first kiss lasted for. She was asked whether she remembered she said to the police in her first statement that it lasted about a minute. She said she didn’t remember. She also did not remember whether she recoiled or pulled away, she just didn’t remember what she did. She agreed that a minute was quite a long time and that she couldn’t tell the court how long the kiss was. She agreed that she understood that if the accused stuck his tongue into her mouth for about a minute that was wrong. She further agreed that she did not say anything to the accused, her mother or her father.
She was asked about the second occasion that she says the accused kissed her in Melbourne. She said that she did not know how long that kiss was for and did not remember telling the police that it lasted for about 45 seconds or so. She said she thought she misjudged the timing when she was giving her first statement. She just didn’t know. She then said:[12]
I think he was saying, like, goodbye, and so he was kissing us goodbye and he kissed M and he kissed me, but it wouldn't have lasted for that long.
[12] TX p61
She didn’t remember telling the police that the second kiss lasted about 45 seconds or so but if that is what her statement said, she must have said it.
She agreed that she was aware that there was a heated argument: [13]
[13] TX p64
Q.What happened was that Ken came upstairs, didn't he, to say goodbye and, as you said, he appeared to be a bit angry.
A.Yeah.
Q.And he told you that he was leaving.
A.Yep.
Q.And you didn't want him to leave, did you.
A.No.
Q.You told him so, didn't you.
A.Yeah.
Q.You wanted him to stay even though he had apparently tongue-kissed you a little bit earlier that very night.
A.Yep.
Q.Why is that.
A.Well, when someone's been such a big part of your life for so long, and like, you know, you kind of try hard to - that no matter - I don't know what I'm saying, but - that you try to, I don't know, I guess I was just trying to tell myself that it wasn't wrong and that -
Q.Can I suggest to you that the truth of the matter is that he didn't tongue-kiss you at all that night on either of those two occasions, did he.
A.No, that's not true.
Q.If he had tongue-kissed you, you certainly wouldn't have allowed him to kiss you for a minute or 45 seconds, would you.
A.I don't know.
Q.You certainly would have pushed him away, wouldn't you.
A.No.
Q.Didn't you say 'That's disgusting. What are you doing?'.
A.No, I just sort of felt trapped. I - I - I don't know. I'm an anxious person and I don't like creating conflict, so I guess I just kept quiet.

ES was cross-examined about not wanting to go to Adelaide on the December trip, she said that she was very scared of what she described as “further activity” but she felt she didn’t have a choice. She told her mother that she didn’t want to go but her mother just thought she was home sick. She didn’t tell her mother why she didn’t want to go. She said she was still trying to tell herself that it was a one off or two time thing and that it wouldn’t happen again. She agreed that she sent a number of text messages and a greeting card. These were then produced to her and tendered as exhibits. In these she expresses her love and affection for the accused and his wife. She said that part of her was really excited about travelling to Adelaide and spending time with them both and part of her was anxious. She agreed that none of the messages that she sent to them suggested that she was anxious.
ES was then cross-examined about the events of the day of the charged offences. She agreed that exhibit D8 was a photograph of her and her sister on the dolphin cruise. She was asked whether the cruise finished at about 4.00 o’clock. She was not sure but agreed that it was late in the afternoon although it was daylight savings and still light. ES said she did not remember walking to the old police station or looking at an exhibition and an art gallery.
ES was then asked about the visit to the fruit shop. She was shown a series of photographs.[14] Initially she did not recognise them as the fruit shop but upon being directed to one specific photograph she agreed that they were photographs of the fruit shop. She was then cross examined as follows:[15]
[14] Exhibit D9
[15] TX p87
Q.And if you a look at the last photograph you can see the car in the same position looking back towards the beach.
A.Yep.
Q.What did you think the reason was that they went to the fruit shop. Not for strawberries, you said -
A.I thought it was for juice. Orange juice or something. I don't know.
Q.Isn't it the truth of the matter that you and Ken were both going in behind Liz as they went into the store.
A.I don't know.
Q.They went into the store, they purchased two punnets of strawberries and some juice, didn't they. And came back out. Immediately.
A.I don't know.
Q.Didn't you go in and follow them with Ken.
A.I don't remember. I think that we were talking but then - I don't know if we went in or we just went straight to the track.
Q.What I'm suggesting to you is that you didn't go to the beach or anywhere near the beach on this occasion, did you.
A.No, that is not true.
Q.What I'm suggesting to you is that you didn't leave the vicinity of the shop or the car.
A.No, that's false.
Q.What I'm suggesting to you is that at all times both you and Ken were in plain sight of Liz.
A.No.
Q.And the truth of the matter I'm suggesting is that you didn't kiss him and he didn't kiss you.
A.Yes.
Q.There was no tongue-kiss.
A.There was.
Q.How long were you away for while this tongue-kissing episode occurred.
A.I don't know.
Q.You can't give us any idea.
A.No.
Q.Before you said that you were away for a few minutes when you were asked questions by the prosecutor. Was that correct or wrong.
A.I don't want to get it wrong, I don't know - I didn't have a timer.
Q.I cut you off, my apologies.
A.It wasn't like I was standing there with a clock checking how long I was going to be there for.
ES said that she did not push the accused away, say anything to him or recoil as he kissed her. She didn’t say anything or do anything. She was asked why not and responded as follows:[16]
A.I kind of felt like I was staying with them and I didn't want to cause trouble. I didn't know how he would react if I said anything so I just didn't.
[16] TX p89
ES agreed that the accused had not said anything about not telling people on either the occasions in Melbourne or at the fruit shop. She was then cross-examined as follows:[17]
[17] TX pp90-91
Q.How long were M and L inside that fruit shop.
A.I don't know.
Q.They were only inside the fruit shop for a matter of minutes, weren't they.
A.Yes.
Q.A couple of minutes.
A.Not sure.
Q.How could you have moved from the car to the location where you now say that this kissing incident took place on two occasions; the interruption being somebody walking by.
A.Yes.
Q.And get back to the car when they came out of the shop.
A.No, we walked to the shop with them and back with them as well so it's not like we had to race to get back to the car or anything.
Q.Do you have any idea now how far it is to the beach from that location at the fruit shop.
A.Well, it was - in the photos it doesn't look like it but it only took - like it was right there we walked.
She was then cross-examined about the events that are the subject of count 1. She agreed that this was the fifth occasion on which she claims the accused tongue kissed her. She said she did not know whether the conversation and the kiss occurred at the end of the bridge, on the bridge or the start of the bridge. She was then asked:[18]
[18] TX p109
Q.How long did that take.
A.I don't know.
Q.Well, you were asked to give an estimate when the prosecutor asked you that question yesterday, weren't you.
A.I don't remember.
Q.Didn't Ms Wilkinson ask you at line 22 'Q. Can you give any estimate. A. I think under a minute, but over 30 seconds'.
A.Maybe.
Q.So it was over some time. 30 seconds is a fairly significant period of time, would you agree.
A.Yeah.
Q.How were you embracing each other, if at all. How did it come about.
A.I don't know.
Q.How were you positioned.
A.Standing.
Q.You were both standing. Were you facing each other.
A.I don't know.
Q.Was he hugging you.
A.I'm not sure.
When cross-examined about sitting on the first park bench ES said she did not remember whether the accused was to her left or her right and she was then cross-examined as follows:[19]
[19] TX pp115-116
Q.Were you touching each other - when this kiss took place, this tongue-kiss that you allege happened, were the two of you embracing each other in any way.
A.I don't know.
Q.Were you holding each other.
A.I don't remember.
Q.Were you standing or were you seated.
A.Sitting.
Q.You were sitting when the kiss actually occurred.
A.Yep.
Q.But you can't tell us how it happened.
A.No.
Q.You can't tell us how you were positioned in relation to him.
A.No.
Q.You can't tell us whether you were holding him or he was holding you.
A.No.
Q.You can't tell us whether he had his arm around you or you had your arm around him.
A.I don't remember exactly.
Q.And you don't know which side either one of you were positioned in relation to each other.
A.No.
Q.You did hug though, on that bench, didn't you.
A.I don't think so.
Q.It was a long hug, I suggest, for about 20 or 30 seconds.
A.I don't remember.
Q.And I suggest to you in fact Ken was sitting on your left-hand side, in other words you were on his right-hand side when you were sitting at the bench on this first occasion.
A.Okay, yep.
Q.Do you agree or disagree, or don't know.
A.I don't know.
ES was asked whether she put her head on the accused’s shoulder at the first bench or whether he put his head on her shoulder, she said she didn’t think she did but didn’t remember. She did not remember whether they were hugging on that bench.
ES was then cross-examined about sitting on the second bench seat. She did not remember which side she was sitting on in relation to the accused. She was not sure whether he had his arm around her or she had his arm around him. She did not remember looking to see if there were any fish in the water or whether that was part of a conversation that she had with him. She was then cross-examined as follows:[20]
[20] TX pp120-121
Q.You both sat, I suggest, on that corner bench that we see in photograph No.19 overlooking the water.
A.I don't know if we sat there.
Q.You put your head on his shoulder.
A.I don't remember.
Q.And he rested his head on your head.
A.I don't know.
Q.He did not touch your breast, did he.
A.No, he did.
Q.Which one.
A.I don't know.
Q.You don't know. How were you positioned in relation to him when he touched your breast.
A.Sitting.
Q.Which side; where was he.
A.I don't remember.
Q.You don't remember where he was sitting in relation to you.
A.No.
Q.You don't remember which bench.
A.No.
Q.You don't remember which breast he touched.
A.Some things are just easier to - harder to forget than others, like, I don't know.
The complainant’s mother
The complainant’s mother gave evidence about the close relationship between the accused’s family and her family congruent with that of her daughter. She gave evidence about the dates of birth of her children and in particular the fact that her daughter, the complainant was born on 12 September 2002. She described the accused as always kind and patient with the girls and said that she trusted him implicitly with her children.
She travelled to Adelaide in the 2015 June/July school holidays with her three daughters. Her husband remained at work in Melbourne. They undertook a number of day trips with the Rendells. On each occasion she, her three daughters, the accused and his wife were together. She said that on occasions people would walk off for a couple of minutes here and there but would come back to the group. She had no specific recollection of the accused being alone with her daughter ES. She said that there was nothing unusual or untoward about anyone’s behaviour and that it was a generally happy holiday with everyone appearing to get on very well.
On their return to Melbourne the accused drove back with her and her daughters. They arrived back in Melbourne about 6.30 pm; half an hour or so earlier than anticipated. Her husband was home when they returned. She described an argument over a roast meat dinner. Her husband wanted to have dinner on the table for them but the meat wasn’t properly cooked. She told him to put it back in the oven for a bit longer. The accused agreed with her. She said this escalated into an argument. She thought everyone was in the kitchen at the time the argument started; but very quickly the girls left. Her eldest daughter went into her bedroom and the complainant and her younger sister went up the two stairs to the rumpus room area. She was not sure whether her daughters had been in their bedrooms prior to the argument but said that they may have put their suitcases away.
The argument went on for some time. She was in complete shock. She had never heard the accused lose his temper before or raise his voice. She said that he left the house following the argument but before doing so he went upstairs to say goodbye to the two younger girls. She did not follow him she stayed in the kitchen with her husband, they were both a bit shell shocked.
In cross-examination she denied that her husband threw cooking utensils against the wall and that he used the language attributed to him by the accused. She said that the accused lost his temper saying words to the effect that “you don’t make me feel welcome” and “we only come here for your kids”.
Subsequently the relationship with the accused was repaired and there was an arrangement made for the two older girls to travel to Adelaide by plane to stay with the accused and his wife. She said initially ES appeared excited about the trip but a few weeks before they were due to go she said she didn’t want to go. Her response to her daughter was that the tickets were booked. She did not ask her daughter why she did not want to go she presumed that it was due to home sickness. She described her daughter’s behaviour during this period as changing and becoming very dark and withdrawn and a bit volatile. RS agreed in cross-examination that she took her daughter to a psychologist because of her dark moods at this time.
RS identified a card that her daughter wrote for the accused and his wife; she also wrote on this card thanking them for having her daughters over to stay in Adelaide again.[21]
[21] Exhibit D6
MES
MES is the complainant’s younger sister. She is currently 12 years of age; she was 10 or 11 at the time of the events in question. She liked spending time with the accused and his wife. The accused was very close to her family and they trusted him a lot. He would give her “slobbery” kisses when they met and when they were leaving. She saw him giving other people kisses but she is not sure if they were “slobbery” or not.
She described the occasion when they drove back to Melbourne from Adelaide. She said that she thought the accused’s wife was in the house at the same time. She is clearly mistaken about this. She remembers an argument between her father and the accused but did not remember when it was or where she was when the argument started. She thought that the accused, his wife and her parents were in the dining room and that she was in the lounge room with her sisters or in her bedroom or the play room. She said the lounge room is sometimes called the rumpus room. She then gave evidence as follows: [22]
[22] TX p174
Q.What happened after the argument.
A.I don't fully remember, but Ken came to say goodbye to us and gave us a hug and a kiss.
Q.Who did he say goodbye to.
A.Me and E. I'm not sure if M was there as well.
Q.Whereabouts were you when Ken came to say goodbye.
A.I, I think it was the lounge room or the playroom or the - or my bedroom.
Q.Were you with E at the time.
A.I, I think, yes. I'm not too sure.
Q.Is that pretty sure.
A.Yep.
Q.Can you describe what was happening when Ken was saying goodbye.
A.He gave us a hug and a kiss on the cheek and then E said something along the lines of - this was after he left - something about that it was kind of like slobbery, kind of.
Q.Can you describe what you saw Ken and E doing.
A.Not really. Just like a hug and friendly kiss, I guess.
Q.Friendly kiss.
A.I don't really know, no, I don't remember that well.
She recalled the accused leaving the house after he said goodbye but did not remember him coming back.
In cross-examination she agreed that although the accused gave “slobbery” kisses they were not like how a boyfriend and girlfriend kissed, she said that when the accused left after the argument she thinks he kissed her on the cheek. She was then cross-examined as follows:[23]
[23] TX pp179-180
Q.You spoke, didn't you, to Ms Wilkinson the other day about this matter, didn't you.
A.I think so.
Q.Monday.
A.Yes, yep.
Q.She asked you, didn't she, about the time that Kenny said goodbye to you after this argument.
A.I don't remember.
Q.Did you say that you weren't sure where you were when he said goodbye.
A.I don't remember.
Q.Did you say that you didn't see Ken saying goodbye to anyone else.
A.I don't remember.
Q.Did you say that you didn't really remember if Ken gave anybody else sloppy kisses.
A.I don't think so.
Q.You don't think you said that.
A.I don't remember.
Q.What, you don't remember saying it, or do you agree that you don't remember Ken giving anyone else sloppy kisses.
A.I don't remember saying it.
Q.After the fight, you told Ms Wilkinson, didn't you, that you were pretty sure Ken said goodbye to you.
A.Yep.
Q.So you weren't sure whether he did say goodbye.
A.He did.
Q.He did, but you said you were pretty sure.
A.I'm sure.
Q.But you're not sure where you were when he said goodbye to you.
A.As I said, I was either in the lounge room, or the rumpus room you may call it, the playroom, or my bedroom.
Q.That's a lot of different rooms.
A.Yes.
Q.You just really remember Ken saying goodbye.
A.Yes.
Q.But you're not sure whether E was with you in the room.
A.I am pretty sure she was.
Q.Did you say to Ms Wilkinson 'E might have been in her room with her, but you're not sure'. Sorry, I've misread that. Did you say 'E might have been in your room or with her, but you're not sure'. In any event, you can't remember Kenny kissing her.
A.I, I, I do.
In re-examination she was asked what she understood by boyfriend/girlfriend kissing and she said “kind of like with like tongue and stuff yep!”.[24]
[24] TX p181
MKS
MKS is the complainant’s older sister. She gave evidence about the trip to Adelaide with her sister in December 2015. In examination-in-chief she gave evidence as follows:[25]
[25] TX pp189-190
Q.About what time was it that you went to the fruit shop.
A.It was in the afternoon.
Q.Do you know where the fruit shop was.
A.It was in front of a beach.
Q.Why were you going to the fruit shop.
A.We were getting some fruit and vegetables and some juice for breakfast.
Q.Who were you with on the way to the fruit shop.
A.On the way to the fruit shop I was in the car with Kenny and Liz and E.
Q.Who actually went into the fruit shop.
A.Liz and me.
Q.What were Ken and E doing.
A.They walked down to the beach.
Q.How did it come about that they were going to the beach and not into the fruit shop.
A.I think Ken just suggested they go have a look at the beach.
Q.Did you see where they walked to.
A.No, I just went into the fruit shop with Liz.
Q.How long did you spend in the shop.
A.Around 20 minutes, I would say.
Q.What were you doing in the shop during that time.
A.We were just having a look at different produce to get and choosing different juices to have for breakfast.
Q.Did you see Ken or E at all while you were in the shop.
A.No.
Q.Was there a purchase of some things from the shop.
A.Yeah.
Q.Who bought the items from the shop.
A.Liz.
Q.Were you with her when she bought them.
A.Yes.
Q.What did she buy.
A.I can't remember but I remember her buying juice for breakfast.
Q.After Liz had made the purchase, what happened.
A.We went back to the car and just met up with Ken and E.
Q.Whereabouts did you meet up with them.
A.Just at the car at the front of the fruit shop.
After this they went back to the accused’s house; she described it as being very warm. Her sister asked if she wanted to go for a walk to the lake. She did but she had almost finished a book that she had to read for school so she decided to stay behind. Her sister went for a walk with the accused around the lake. She thinks that the accused suggested he go with ES.
In cross-examination MKS volunteered that she remembered that they had been on a dolphin cruise before the fruit shop. She said she had forgotten this when giving evidence in chief due to nervousness. She was not asked about other activities prior to the fruit shop visit.

MKS was asked where the car was parked in relation to the fruit store. She said she was pretty sure it was in front. She agreed that there were a lot of car parks but did not recall there being a lot of cars and did not think there were a lot of people around the shop. She agreed that you could not see the beach or the sea from the shop but she said you could see sand. She said that she didn’t actually see the accused and her sister go to the beach. She said she assumed this because she heard the accused say to her sister that they should go and have a look at the beach.
She was then cross-examined about going into the shop with the accused’s wife as follows:[26]
[26] TX pp195-196
Q.See if this helps. She actually went in and did buy, didn't she, two punnets of strawberries.
A.I don't recall.
Q.The only thing you remember is the purchase of an orange drink.
A.Of juice.
Q.Of juice. But you do remember that, don't you.
A.Yes.
Q.In fact it was Kenny that produced the juice from inside the shop for Liz to pay for it.
A.I don't recall.
Q.Could that have happened.
A.Possibly, I don't remember that.
Q.At that time E was in the shop too, wasn't she.
A.I don't remember.
Q.Could she have been in the shop.
A.I don't know.
Q.You don't know one way or the other.
A.No.
Q.The only three things that were purchased were the juice and two punnets of strawberries, do you agree with that or don't you know.
A.I don't know.
Q.The only thing you can say is you remember there was an orange juice purchased.
A.Yes.
Q.You said you were inside the store for 20 minutes.
A.Possibly.
Q.How about something in the order of two to three minutes.
A.No, it was longer than that.
Q.How much longer.
A.I'm not very good with time, but I can tell when two to three minutes is and it was longer than that.
Q.The only thing you remember buying is the juice. It doesn't take long to buy juice, does it.
A.No, but Liz likes to look at all the things in the store and she's very particular with what she buys.
She did not recall this being closing time and did not know whether they were one of the last customers in the shop. She agreed that she did not see her sister and the accused return from the beach to the car. She was then asked as follows:[27]
Q.And you don't know whether Kenny and your sister walked into the shop behind you and Lizzie.
A.They weren't in the shop with us.
Q.I thought you said a moment ago that Kenny could have actually retrieved the orange juice that was purchased from the fridge in the store.
A.They didn't follow us into the shop because when we were looking for food they weren't in there. It wasn't a big shop, you could see who was in there. They may have come in later on to purchase the juice.
[27] TX p197
Again she was asked as follows:[28]
Q.You see, I suggest to you that accused and your sister never went to the beach on this occasion. What do you say about that.
A.Well, they got out of the car and they were walking around, so I don't know where they went or what they did in the time that me and Liz were in the shop by ourselves.
Q.So you don't have any idea now whether they did or did not go to the beach.
A.That was just a suggestion that Ken gave. Maybe E said 'No'. I didn't hear her say 'No', so.
Q.You really can't account for their movements at all.
A.No, I wasn't with them.
[28] TX p198, line 3-15
The Playground
Two groups of civilian witnesses gave evidence about the events in the playground. The first group comprised Ann-Marie Blackborough, her partner Dylan Bryant and her father Trevor Blackborough. The second comprised My Hung Trinh and her partner Luke Grinter. The two groups were independent of each other. All of these witnesses impressed me as public spirited individuals.
The Blackborough/Bryant group first saw the accused and the complainant as they drove to the park in a roughly southerly direction along Lochside Drive. They were in separate cars. Ann-Marie Blackborough and Dylan Bryant were in one car with their children when they saw the accused and the complainant walking along the footpath to the right of their car.
Ann-Marie Blackborough was in the passenger seat and arguably had the best view. She said her attention was drawn to the couple because of the age difference and the way they were holding hands. She said it was not like something a grand-father would do, it was more romantic. They were walking side by side very close and she said they appeared to have interlocked fingers. She said that when she holds her children’s hand it is more of a handshake style. The couple obviously had a significant age disparity. The girl appeared to Ms Blackborough to be around 14 or 15 and the accused looked to be in his 60’s maybe 70. She said something to her partner along the lines that it was “a bit off”.
Mr Bryant says that he noticed the pair walking along the road on the footpath to their right. He said that this was not a particularly romantic place to walk. He saw the couple holding hands and he thought it looked a bit odd because there was a significant age difference. He said they were walking very close together. He was then asked as follows: [29]
Q.Did you notice anything about the way they were holding hands.
A.It's hard for me to describe but, it's not - from what I understand, it's not normal. I've got - I grew up with three sisters, I got three daughters and I see the way they interact with their grandparents, so at first I thought, maybe that, you know, it could be a grandchild but, the more I looked and the way it was just - it just threw me and the way they were holding hands, it was very close, it was more of a very close bond or not bond or so, so, it leaves you wondering and thinking about it.
[29] TX pp283-284
The Blackboroughs did not however do anything about these observations at that stage and proceeded to the Tiranna Way playground. I infer that, although they thought that the couple looked a bit odd, neither Ms Blackborough nor Mr Bryant were particularly concerned at this stage and certainly neither thought it necessary to take any action.
Mr Trevor Blackborough noticed an older male of around 60 walking with a young female around 15 along the footpath. He gave evidence about this as follows: [30]
Q.Did you notice anything about what they were doing as they were walking.
A.They were just sort of walking along and talking, holding hands, so, that way I thought nothing unforeseen, you know, I often walk along with my daughter and hold her hand and all the rest so, nothing really apart from that until obviously the rest of the proceedings, then all of a sudden you start querying it.
In other words Mr Blackborough saw nothing untoward at the time he first observed the couple in Lochside Drive.
[30] TX p259
The first bench
At the park the Blackboroughs set up at a picnic table. Their three children were playing in the water near a boat ramp. Dylan Bryant and Trevor Blackborough were watching their children at the water’s edge. Ann-Marie Blackborough was near the picnic table with the party’s two dogs. Ms Blackborough said that whilst she was by the picnic table she noticed the man and the girl walking along the lake front towards them. She said they then sat on a park bench by the playground.
It is common ground that ES and the accused sat on two benches. ES identified a park bench close to the water as the first bench. I find that she is clearly mistaken about this as all other witnesses identified the first park bench as the one adjacent to the playground and the road.
There is some disagreement between the witnesses as to which way around the couple were seated on the first bench. Ann-Marie Blackborough initially said that the accused was seated on the left side of the complainant. In cross-examination however she amended this as follows:[31]
Q.On her left-hand side, he was on her left-hand side.
A.Sorry, her right-hand side.
Q.No, no, yesterday you said 'He was on her left-hand side' didn't you.
A.Yes, but left-hand side from where I saw them. It would have been her right-hand side but onto left of her from my viewpoint.
Q.That's not what you said yesterday.
A.No, I'm sorry, I got it mixed up.
[31] TX p235
Both Dylan Bryant[32] and Trevor Blackborough[33] gave evidence of the relative positions of the complainant and the accused consistent with Ms Blackborough’s evidence in cross-examination; that is the accused was on the right hand side of the complainant. Ms Trinh was unable to recall which way round the couple sat. Mr Grinter[34] and Mr Rendell[35] had them seated the other way around; that is Mr Rendell was on ES’s left. Likewise there were some differences between the witnesses about their view points and distances. These are however minor and all had a good view of the first bench.
[32] TX p309
[33] TX p272
[34] TX p358
[35] TX p437
Ms Blackborough said that she saw the accused’s arm around the complainant’s midriff and his hand in her lap on her upper thigh. She thought he might have been rubbing ES on the upper thigh but she was not 100% sure. She recalled seeing the accused kiss the complainant on the lips but she said that this was not a French kiss. The accused looked very relaxed but ES looked very uptight and uncomfortable. Ms Blackborough went down to the water and spoke to Dylan and her father. She then returned to stand by the table so that she could continue observing the bench. She was genuinely concerned for the girl by this stage. She thought it looked to be inappropriate, the girl did not look comfortable and there was a significant age difference.
Trevor Blackborough said that he was not constantly watching the couple when they were on the first bench as he was down by the water watching his grandchildren. He saw the couple sitting together and he thinks that they were holding hands. He described the accused getting up and turning around to point out a building that was either being renovated or built. The overall tenor of his evidence was he did not see anything untoward.
Dylan Bryant was walking back and forth from the table to the ramp where the children were in the water. He was concentrating on enjoying the afternoon. A reasonable inference from his evidence is that he did not see the accused and the complainant arrive at the park. When he noticed them on the first bench he said that the older male looked happy and jovial. He had his hand situated high up on the complainant’s inner thigh near her groin and he was rubbing his hand up and down. Mr Bryant felt it was very inappropriate. He formed the view that the complainant was awkward based on her facial expressions and the fact that she didn‘t look relaxed; she was sitting upright in a stiff posture.
Mr Bryant was cross-examined about the fact that when he told the police that the accused had his right hand on the complainant’s left upper thigh and appeared to be rubbing her leg he did not say anything about the accused having his hand right up near her groin. Mr Bryant agreed that this was the case but said that he felt uncomfortable even saying it in court. This was consistent with his demeanour when giving evidence. This omission does not cause me any concern about Mr Bryant’s evidence. Mr Bryant told the police that he saw the accused rubbing the complainant’s upper thigh and that he thought it inappropriate. I accept his explanation for why he did not use the word “groin” when speaking to the police.
By the time the accused and the complainant moved to the second bench at least Ann-Marie Blackborough and Dylan Bryant had decided that there was something wrong. The position of Trevor Blackborough is less clear. All three of them indicated their belief that the accused and the complainant moved because they were aware of being observed. I note all three were cross-examined about this and conceded that they could not know what was in the mind of the accused and the complainant. Their view is however consistent with the evidence given by the complainant that she at least was feeling uncomfortable because she could tell people were watching.
My Trinh and Luke Grinter had been kayaking on the lake. They were packing up for the day when they first noticed the accused and the complainant. They saw them coming along the lake path towards the park. My Trinh and Luke Grinter had a dog with them that barked at the couple. They exchanged some words with the accused on that topic. I infer that it was a friendly exchange. They then saw the accused and the complainant sit on the first park bench.
They were packing up their kayaks and their belongings and loading them into their car which was positioned on Tiranna Way in the approximate position marked by Mr Grinter on exhibit D18. As they did so, they each passed behind the accused and the complainant on the footpath behind the first bench.
Ms Trinh was able to describe the couple but not their position on the bench other than to say that they were facing the lake. She observed the accused with two arms around the young girl’s waist. She saw the young girl’s hands in her lap. Ms Trinh said that she was walking back and forth from the shore to the car and went past more than once. She thought the complainant looked awkward. When pressed to say why she said it was due to her body language, her two hands in her lap. She was cross-examined about this as follows: [36]
Q.Why would the mere clasping of hands on her lap make anyone think it was awkward.
A.It's because the gentleman had his arms around her waist and if they were a couple her hands should have been around his waist too.
Q.I see, it is because her hands weren't around his waist, only his hands were around her waist which is why you formed that opinion.
A.Yes.
[36] TX p339
Luke Grinter said that he observed the couple on a number of occasions as he was loading the car. He described them as being quite close with legs facing in towards each other. The male had his right arm around the back of the bench around the complainant and his left hand was on her inner thigh groin area. He and Ms Trinh got in their car with all of their possessions and their dog ready to drive off but they both came to the conclusion that there was a peculiar situation going on at the bench. They thought that they ought to keep their eyes on the couple a bit longer before leaving. Ms Trinh indicated that she thought that she might have to borrow someone’s mobile phone to call for help,
Accordingly, at the point where the complainant and the accused moved to the second bench Mr Bryant and Ms Blackborough and Mr Grinter and Ms Trinh had independently formed a view that something untoward was happening. All four were, I infer, watching intently when the couple sat on the second bench. Mr Blackborough had not, I infer formed a view that anything improper was occurring. He appeared to have considered that whilst it might be a little out of the ordinary, the couple may have been in a father/daughter relationship.
The second bench
Again all of the witnesses agreed on the location of the second bench. It was at the edge of the park in which the playground was located, closer to the Lake adjacent to a footpath. ES nominated a different bench closer to a toilet block. She was plainly mistaken.
There are some differences between the witnesses as to the distances from which they observed the second bench. I do not consider that these are of great moment. I accept that all five witnesses had a clear view of the second bench albeit My Trinh and Luke Grinter were observing from further afield than the Blackborough group and from a different angle. The back of the chair was towards all of the witnesses. All observed the couple from behind albeit with a view of their side profiles as they turned towards each other on the bench.
Ann-Marie Blackborough, Dylan Bryant, Luke Grinter and the accused gave evidence that the accused was seated on the bench furthest from the water with ES to his right. Trevor Blackborough said that they were the other way around and My Trinh could not recall which way round they were seated,
Ms Blackborough said that she stood with her father and her partner by the table to observe the second bench. She described what she saw as follows:[37]
[37] TX p212
A.The male was on the left-hand side and the female was on the right-hand side and that's when I saw them French kiss or kiss passionately, I guess, and he was rubbing her back and her behind.
Q.So you say French kiss or kiss passionately, what could you actually observe that led you to describe that.
A.I could see it, basically. I could see their lips in a kiss and you could tell it was an open mouth kiss.
Q.How did that kiss compare to what you saw on the first bench.
A.It was a lot more intense.
Q.In what way.
A.Romantically, I would say.
Q.What do you mean by that.
A.It was a lot more of an adult kiss, a lot more of a passionate.
Q.Did you see how that kiss started.
A.The man leaned into the girl.
Q.Once the kiss was occurring how were their bodies positioned.
A.She was turned slightly into him, that's how I could see his hand rubbing her back and lower back to her bottom; I guess. He was turned into her.
Q.Do you know which hand was on her back.
A.It would have been his right.
Q.Did you see where the female's hands were.
A.No, I couldn't.
She described the complainant’s body language as being very straight. She said that when she saw this kiss she asked her partner Dylan Bryant for his mobile phone and she called 000. She said that they were still kissing as she made that call and that she described what she saw to the operator as it was occurring. The call was played in court. Of particular relevance is the following exchange:[38]
Ms Blackborough: And so we’re concerned, like, they’ve been kissing and um, yeah it’s wrong. It’s disgusting.
Police emergency: As in like proper kissing?
Ms Blackborough: Yes, yes, there’s something not quite right here.
Police emergency: Okay. Ah. Inappropriately. So obviously not like a relative kiss?
Ms Blackborough: No, no. Like no
[38] Exhibit P14
Ms Blackborough agreed in cross-examination that she couldn’t see the front of either the male or the female because of the angle of the bench. She was then cross-examined as follows: [39]
[39] TX pp247-249
Q.Are you saying that from where you were positioned, whatever distance that might be, you could tell and see whether their respective mouths were open.
A.Yes.
Q.Come on, seriously, do you really maintain that.
A.Can I - yes. I am 100% certain there was an open mouth French kiss. When something draws your attention you look a lot more into detail at something.
Q.Yes. They certainly appeared to be next to each other.
A.Yes, they did.
Q.They certainly appeared to have their heads close to each other.
A.Yes.
Q.They appeared to be hugging each other.
A.Yes.
Q.The girl had her head on his shoulder.
A.No, they were kissing.
Q.The girl had her head on his shoulder.
A.No.
Q.You disagree with that.
A.Yes, I don't - I didn't say that. I said they were kissing.
Q.I'm asking you, do you agree that the girl had her head on his shoulder.
A.No.
Q.Do you say that never happened.
A.Not that it never happened, but, not at the time when they were kissing.
Q.She was resting her head on his shoulder, wasn't she.
A.Not that I remember, no.
Q.Could you be mistaken about that.
A.I could be mistaken about it but, no, not from the vision that I've got in my head right now, no.
Q.No, the vision that you have in your head is that from the moment - it starts back at the street, it goes to the first bench, even the decision to move from one bench to the other, in your mind, you've got it fixed that this elderly gentleman's up to no good with this young girl.
A.Yes, correct, because of what I had seen.

ES was however able to explain why she behaved or reacted in particular ways. She was able to give evidence of her thought processes at different times. She gave considerable detail about each of the charged and uncharged acts as to how these affected her on an emotional level. She gave details of things she says the accused said to her and how she reacted to these things. This evidence had a ring of truth. Furthermore ES maintained this evidence and withstood cross-examination to the extent that she did not alter or resile from the central allegations.
The defence has suggested that ES made statements prior to the trial which are inconsistent with her evidence in court. These are to do with the uncharged acts in Melbourne.
The first relates to the question as to whether the bedroom door was open or closed at the time of the first alleged kiss. Her evidence in court was that the door was closed. It is an agreed fact that ES told the prosecutor that the door was open. The other issue relates to the length of the second kiss in Melbourne. ES told the police it lasted about 45 seconds or so. She said this in two statements. Her evidence in court was that the kiss did not last that long.
I have considered the submissions in relation to both of these matters together with the evidence and ES’ explanations. I remind myself of the usual direction given to juries concerning prior inconsistent statements. Neither of these prior inconsistent statements cause me to doubt the reliability of ES’s evidence in court.
The events that ES described as taking place in the Tiranna way playground occurred in view of a number of witnesses who have given evidence that, in many respects, corroborates what ES said.
Defence suggest that the evidence of the independent witnesses has all the hallmarks of a group frenzy; that there was a preconceived notion and perception by these people of an activity which has been misinterpreted. It is said that they have jumped to conclusions between themselves and collectively. It is said that the most reliable witness is that of Trevor Blackborough because he does not suggest that there was any tongue kissing or untoward activity occurring on the second bench. I reject the suggestion of a group frenzy. As I have indicated above there were two groups. The first group comprised the Blackboroughs and Mr Bryant.
I found Ms Blackborough to be a very compelling and cogent witness. She gave her evidence in a straightforward manner without embellishment. Defence have criticised her evidence by saying that she pre-judged the couple based on what she saw on Lochside Drive. I do not accept this. Certainly she thought the couple looked a little odd for the reasons she described but despite this she took no action. She became concerned as a result of what she saw on the first bench. In my view it was not unreasonable of her to be concerned by what she saw. She observed a couple with a significant age disparity sitting close to each other. They were hugging. She observed a kiss albeit not a tongue kiss. Significantly she saw the accused’s hand on ES’ upper thigh. Ms Blackborough properly conceded that she may have been mistaken about her view that he was rubbing his hand on ES’ thigh but even without the rubbing the placement of his hand in that location was cause for concern. Ms Blackborough agreed that she, her partner and her father collectively decided that something untoward was occurring by the time the couple moved to the second bench. Importantly however she took no action until she observed what she described as adult kissing on the second bench. These are not the actions of a paranoid or overly suspicious person.
Mr Bryant was a cogent witness. He was plainly embarrassed by having to describe certain things, such as the kissing he observed on the second bench and the touching of the groin. Nevertheless he did his best to describe what he saw and to assist the court. As with his partner he thought there was something odd about the way in which the couple were holding hands on Lochside Drive. He too observed the accused’s hand on the upper thigh or groin area of ES on the first bench. He was watching his children in the water but looked at the second bench to see what he described as a French kiss or very sexual passionate kissing.
Trevor Blackborough’s evidence was a little vague in some respects. Further a number of aspects of his evidence are at odds with the other witnesses. In particular Mr Blackborough did not see any kissing on the second bench only what he described as cuddling. The cuddling that he described is different to what was described by the other witnesses. Having said that Mr Blackborough was concerned about what he saw and indeed was concerned enough to speak to the accused following the incident and to claim to be a police officer in order to stop the couple from leaving.
Mr Blackborough noted the couple walking on Lochside Drive holding hands but formed no adverse view of their behaviour. I infer that he was not specifically watching the couple on the first bench, perhaps because he was by the water with the children. He did not observe the accused’s hand on ES upper thigh nor did he note any hugging or kissing. He thought they may have been holding hands. His daughter told him that she thought something was a bit odd but it is clear that he did not share her concern at this stage which is hardly surprising in view of the fact that he saw nothing untoward.
Mr Blackborough’s evidence as to the manner in which the two were seated on the second bench is confusing. In examination he appeared to have the couple seated the same way as the other witnesses. However in cross-examination he had the couple seated the opposite way; that is he said the male was on the right of the girl. He was quite definite about that response but I find that Mr Blackborough was mistaken. My Trinh was unable to give evidence one way or the other but Dylan Bryant, Luke Grinter and Anne-Marie Blackborough all had the pair seated the other way around. I note also that the accused said that ES was on his right and that he was on her left.
Having carefully considered the evidence and the submissions of counsel I do not accept Mr Blackborough’s evidence as to what occurred on the two benches. His evidence does not cause me to doubt the evidence of the complainant or the other witnesses as to those events.
Luke Grinter and his partner My Trinh did not have any interaction with the other group until after the police were called. Mr Grinter was a thoughtful and impressive witness. Ms Trinh was less impressive as she unable to recall many details but nevertheless she gave cogent and consistent evidence about the matters she did recall. Both saw the couple on the first bench. This was the first time that they had seen them. They had no preconceived ideas about the couple. Luke Grinter saw the accused’s hand on the upper thigh of ES as described by Ms Blackborough and Mr Bryant. What Mr Grinter and Ms Trinh saw caused them sufficient concern to remain in their car watching the couple rather than leaving as they had originally intended to do. Ms Trinh said that she intended to borrow a mobile phone to call for help if necessary. Both appeared to be sensible people. Neither appeared overly suspicious; neither had an axe to grind. They had observed something odd and they decided to remain at the playground to ensure that nothing untoward was occurring.
There is an uncharged act of a kiss on the first bench. Ms Blackborough is the only onlooker who saw a kiss on the first bench. She said it was not a tongue kiss. As no-one was constantly watching the bench, it is possible that such a kiss occurred as ES said. I cannot however exclude as a reasonable possibility that ES was mistaken about a tongue kiss on the first bench given her mistake about which benches they sat on. I do not therefore rely on this uncharged act other than to consider the effect of such a mistake upon my assessment of ES’s evidence. Given the circumstances as I have outlined them a mistake about this does not, in my view, undermine her reliability or credibility.
At the time the accused and ES moved to the second bench the two groups had not spoken to each other; they had not collectively decided that this was wrong. There was no group frenzy. Rather the two groups independently believed something untoward might be occurring and decided to watch the couple to see if there were any developments.
All of the witnesses were viewing the couple on the second bench from behind or, at best, from the side as the couple faced each other. Four of the witnesses describe seeing the couple kissing. Mr Blackborough did not. The four witnesses who say that they saw kissing on the second bench used different words to describe what they saw and, to a greater or a lesser extent, struggled to explain why they reached the conclusion that they did. Ms Blackborough said that she saw “a French kiss” or passionate kiss which she could tell was an open mouth kiss. Mr Bryant said he saw that it was a very passionate and sexual kiss; he too used the expression “French kiss”. Ms Trinh described it as “pashing” or tongue to tongue. Mr Grinter said he saw French or romantic kissing as between lovers rather than a parent and child. I do not accept the submission that the “French kiss” was a concept introduced by Senior Constable Burford. Rather I consider that Mr Grinter used that expression himself, as he said in re‑examination, in his efforts to describe to the Senior Constable what he saw. Even had the expression been raised by Senior Constable Burford it is clear that Mr Grinter was describing that activity. Further it was an expression used by other witnesses to describe what they saw. It was not suggested that Senior Constable Burford introduced that expression to those witnesses.
When pressed to explain why they formed the view that the couple was kissing in the manner they described, each of the witnesses said it was to do with the angle or tilt of the heads and the movement of the heads. Mr Bryant demonstrated the movement he saw with his hands. He said that it was difficult to describe what he saw; indeed he found it “quite awkward and weird”. When one thinks about it, it is indeed a difficult concept to describe. Each of those four witnesses was making observations from different angles and viewpoints. Each of them no doubt had different cultural or life experiences. Having observed each of the four witnesses describe how they came to the conclusion that this was sexual or passionate kissing I consider that each gave compelling and cogent reasons for forming that view.
Ms Blackborough was so concerned that she rang the police as she was observing the couple on the second bench. In her mind what she saw required a call for urgent police assistance. What she said to the police in that call was a contemporaneous report consistent with her evidence.
However described, My Trinh and Luke Grinter came to the view that there was tongue kissing or passionate kissing occurring between the couple on the bench. They thought that it was inappropriate and sexual. Separately and independently of Ms Trinh and Mr Grinter, Ms Blackborough and Mr Bryant formed the same view. Importantly the evidence of these four witnesses confirms what ES said occurred at the second bench. Mr Bryant and Ms Blackborough corroborate her evidence in another important respect because they both observed the accused’s hand running up and down ES’ back in the manner that she also described in her evidence.
None of the witnesses gave evidence about seeing the accused touch ES’s breast. Given the angle from which they were all viewing this is unsurprising. I do however accept ES’s evidence that this occurred during the course of the embrace on the second bench.
The accused’s account of what occurred on both benches is significantly different to that of the witnesses. I did not find the accused to be an impressive witness even taking into account his good character and effects of the stress an accused person giving evidence must feel. I found aspects of his evidence to be unconvincing and internally inconsistent. It was moreover tailored to minimise his involvement with ES and to put her in a poor light. For example the tenor of his evidence was that he had limited physical contact with ES restricted to hugs and pecks on the cheek by way of greeting and farewell. He said he never put his arm around her. He gave evidence suggesting that ES was behaving in a very odd manner before the walk. Despite this he went on the first walk he had ever had alone with ES. He could not remember if they held hands on the walk but agreed that they might have. On his version there was considerable physical contact, albeit of an innocent character, between the two on both benches. This was, according to the accused, a very unusual thing. The suggestion appears to be that he was attempting to comfort ES. The reason for this is not readily apparent. The accused suggested that ES was behaving in a strange manner for no apparent reason at the end of a pleasant day of holiday activities. I note further that, whilst Mrs Rendell gave similar evidence to her husband, MKS gave no evidence of any unusual or anxious behaviour on the part of her sister before the walk.
The accused denies having his hand on ES’ upper thigh on the first bench. He says he might have kissed her on the top of her head. No witness described that. Mr Rendell described a series of events occurring in and around the second bench. None of the other witnesses described seeing ES looking in the water. ES did not agree that she had done this. None of the onlookers described seeing either the accused or ES getting up and down from the second bench. The evidence was that when ES and the accused relocated to the second bench both sat down on it and they remained there until they stood up to go.
The accused described innocent physical contact on the second bench; hugging ES at her request, ES putting her head on his shoulder and him briefly placing his head on her head. This version was put to all of the witnesses. None of them with the possible exception of Trevor Blackborough agreed that anything of the sort happened. ES denied it and maintained her evidence about what occurred on the second bench. I accept her evidence. I further do not believe that Mr Grinter, Ms Trinh, Ms Blackborough and Mr Bryant mistook ES’s head leaning on the accused’s shoulder or his head leaning briefly on ES’s head for passionate kissing.
On the accused’s account his arm was around ES’ shoulders and he may have patted her in a comforting manner. At least two witnesses saw his arm moving up and down her back. They did not see patting, they saw stroking from the shoulder to the bottom. ES said that the accused was stroking up and down her back. Again I accept her evidence.
The conversation after the second bench is, on the prosecution case, a lie revealing a consciousness of guilt on the part of the accused. The prosecution case is that the accused was asked how old ES was and that he lied when he replied that she was 18. ES, Mr Blackborough and Mr Bryant all give that evidence. I accept their evidence. The accused says that there was a different conversation. That different conversation was put to ES, Mr Blackborough and Mr Bryant. None of them agreed that this was what was said. The accused’s evidence on the topic was further inconsistent in terms of what was said and the sequence in which it was said. I do not consider it to be reliable and I therefore put it to one side. It does not cause me to doubt the evidence given by ES, Mr Blackborough and Mr Bryant on that topic.
I note the preconditions for the admissibility or use of evidence of a lie probative of guilt. I find beyond reasonable doubt that the accused, when asked how old ES was, said that she was 18. If his conduct was not indecent as alleged by the prosecution there would be no occasion to lie about ES’s age. Saying that she was 18 is in my view an acknowledgement of the impropriety of his conduct.
The accused says that the uncharged acts should cause considerable doubt about ES’ reliability. It is contended that I could not be satisfied that they occurred as ES alleges and that this should therefore cause me doubt about her evidence as a whole. I have already dealt with the prior inconsistent statements in relation to the Melbourne matters. ES’s evidence is I consider reliable and credible. I accept ES’s evidence about the uncharged acts in Melbourne.
The accused says that he did not go to ES’ bedroom before the argument nor did he say goodbye to ES and MES before he left after the argument. I do not accept this. RS said that the accused went upstairs to say goodbye to the girls prior to departing after the argument. MES also gave evidence. She was a very young girl at the time and is still relatively young. It was clear to me that she did not have a very clear memory of that evening. MES did however say that the accused said goodbye to her and ES. MES further said that he kissed ES albeit she said it was not boyfriend/girlfriend kissing. I am satisfied that the two uncharged acts in Melbourne took place.
Defence counsel made detailed submissions about the uncharged acts near the fruit shop. I have carefully considered those and the evidence to which I was taken. Again I accept ES’ evidence about what occurred. ES did not know where the fruit shop was. She was not able to tell the police where it was nor did the police drive her around to establish its location. ES did not immediately recognise the fruit shop when she was shown photographs in cross-examination. Her lack of familiarity with Adelaide and the location the fruit shop was clear. It was not suggested that she had been there previously. She described being taken on a track to the beach. There is in fact a track to the beach near the fruit shop which meets the description given by ES. The track was not particularly obvious from the fruit shop car park nor is it possible to see the beach. It is challenging to see how ES would have been able to give the evidence she did if she had not been taken there, as she said, by the accused.
MKS was a careful and impressive witness. She said that she and Mrs Rendell went into the shop together and that they were in the shop for longer than suggested by the Rendells. MKS heard the accused suggesting looking at the beach at a time when ES and the accused were together. She did not see where they walked to but she also said she did not see the accused and ES while she was in the shop. Her evidence corroborates that of ES both as to Mr Rendell’s suggestion that they go to the beach and as to the time frame.
Mr Rendell denied going to the beach track. He and Mrs Rendell gave evidence that he went into the fruit shop. They further gave evidence that suggested that there was insufficient time for the events described by ES to have taken place. I am troubled by the times given by Mrs Rendell and Mr Rendell with a view to establishing that they were at the fruit shop only briefly. Their evidence was that the fruit shop was closing. Both were adamant that they could not have been there earlier than five minutes to five. Both said they left the fruit market to go home after five and that they arrived home somewhere around 5.10pm. Both gave evidence of a number of activities at home. Mrs Rendell said that her husband and ES left the house close to 5.30pm. Mr Rendell’s evidence is consistent with leaving slightly, but not much, earlier.
The end point is the 000 call made by Ms Blackborough. This occurred at 5.35pm. This does not sit comfortably with a 5.30pm or even a 5.20pm departure. I find the evidence of the accused and Mrs Rendell that it takes about ten minutes to get from their house to the park implausible. The Google map that was tendered and marked by Mr Rendell shows a distance of well over 1 kilometre from the Rendell house to the playground. The accused said that both he and ES walked quickly. I note however that Ms Blackborough described them as out for a Sunday stroll when she saw them on Lochside Drive which is not suggestive of a speedy walk. I also note that it was a hot day and that the accused agrees that he and ES stopped on the footbridge, in his version, to look at the jellyfish. Even a brief stop would impact the time frame. Once they got to the park there was time spent on the first bench and then the second before the 000 phone call was made.

The evidence of Mr and Mrs Rendell does not cause me to doubt the evidence of ES as to the uncharged acts at the fruit shop.
Notwithstanding my reservations about this and other aspects of the accused’s evidence that does not provide a basis for my finding him guilty. The onus of proving each element of the charges always remains on the prosecution. I have taken into account all of the submissions put to me in relation to the evidence of ES and the other prosecution witnesses. My consideration of those submissions and the evidence as a whole has not caused me to doubt my initial impression of ES as a credible and reliable witness. She made appropriate concessions, she refused to guess, her evidence rang true and she was not shaken in her evidence under cross-examination. I am satisfied of the truth and reliability of her evidence. I am satisfied that the accused inserted his tongue in her mouth on or near the footbridge as alleged in count one and on the park bench as alleged in count 2. I am further satisfied that the accused placed his hand on her breast as alleged in count 3.
It was put that the accused would not have committed acts of indecency as alleged on the prosecution case in such exposed locations and, in respects of counts 2 and 3, in front of witnesses. I reject that argument. It is regrettably the experience of the courts that such offending is often brazen and undertaken with little regard for the surroundings. The locations in which the three charged offences are said to have occurred does not cause me to doubt that they occurred.
In all of the circumstances I am therefore satisfied that the prosecution has discharged the onus of proving each element of the three offences of indecent assault and I find the accused guilty of each count on the Information.