R v Ricciardi
[2016] SADC 162
•21 December 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RICCIARDI
Criminal Trial by Judge Alone
[2016] SADC 162
Reasons for the Verdicts of His Honour Judge Rice
21 December 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - INDECENT ASSAULT AND RELATED OFFENCES
The accused is charged with one count of Indecent Assault, one count of Unlawful Sexual Intercourse and one count of Persistent Sexual Exploitation of a Child. The accused is the uncle of the two complainants. A finding was made that the defendant is mentally unfit to stand trial. A trial proceeded with respect to the objective elements of the offences. The defendant elected for trial by judge alone.
Held: Count 1: Objective elements not found proved. Count 2 and Count 3: Objective elements proved beyond reasonable doubt.
Criminal Law Consolidation Act 1935 (SA) s 269M; Evidence Act 1929 (SA) s 34P, referred to.
R v Maiolo (No 2) (2013) 117 SASR 1; R v C, CA [2013] SASCFC 137; R v Cassebohm (2011) 109 SASR 465; R v March [2014] SASCFC 54, applied.
R v RICCIARDI
[2016] SADC 162Introduction
The accused elected for a trial of the objective elements of the alleged offences by judge alone. The accused is charged on Information with one count of Indecent Assault, one count of Unlawful Sexual Intercourse and one count of Persistent Sexual Exploitation of a Child. There are two complainants, sisters, now aged in their late thirties’. The accused is their uncle.
I think it necessary to provide some history of how this matter has progressed. The trial was set to commence 5 November 2013. In September 2013, the accused suffered a stroke and the trial was relisted to commence on 29 July 2014. This trial date was not reached and the trial was relisted for 23 March 2015. The trial commenced on this date but subsequently resulted in a mistrial and the accused’s fitness to stand trial was further explored.
The accused was examined on 29 July 2015 by neuropsychologist Dr Emma Scamps under the provisions of Part 8A and a formal forensic neuropsychological report was prepared, dated 5 August 2015.
In light of the opinions about the accused’s inability to understand the nature of the proceedings or follow the evidence in the proceedings due to the diagnosis of dementia, the prosecution conceded that the accused was unfit to stand trial. On 14 August 2015, his Honour Judge Muscat recorded a finding that the accused was mentally unfit to stand trial. Therefore the court must hear evidence and representations made by the prosecution and the defence relevant to the question of whether a finding should be recorded that the objective elements of the alleged offences are established.[1]
[1] Criminal Law Consolidation Act, 1935 s269M A(5).
In respect of the trial of the objective elements, the defendant elected for trial by judge alone. For the reasons set out hereunder, the objective elements for count 1 are not found proved; the objective elements are found to be proved for counts 2 and 3.
The offences charged are:
First Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Gaetano Ricciardi, between the 31st day of December 1989 and 1st day of January 1992 at Edwardstown, indecently assaulted D, a person under the age of 12 Years.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Gaetano Ricciardi, between the 31st day of December 1989 and 1st day of February 1993 at Hawker or another place, had sexual intercourse with D, a person under the age of 14 Years, by inserting his finger into her vagina.
Third Count
Statement of Offence
Persistent Sexual Abuse of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Gaetano Ricciardi between the 31st day of December 1988 and 1st day of January 1994 at Plympton and other places, over a period of not less than three days committed more than one act of sexual exploitation against L, a child under the age of 17 Years.
It is further alleged that the particulars of the offence are that between the 31st day of December 1989 and the 1st day of January 1994 the defendant:
· had unlawful sexual intercourse with L in Plympton by inserting his fingers into her vagina;
· had unlawful sexual intercourse with L, in a house owned by a person known to L only as ‘Yahzee’ by inserting his penis into her vagina;
· had unlawful sexual intercourse with L in a house in Para Hills or Parafield Gardens or another location, occupied by a person known to L only as ‘Frank’, by inserting his penis into her vagina on two occasions;
· had unlawful sexual intercourse with L in the Flinders Ranges, by inserting his penis into her vagina on one occasion, and inserting his finger into her vagina on another occasion.
General background
The accused is alleged to have sexually abused both L and D, his two nieces between the Years 1989 and 1993. L and D are sisters. L was born on 16 February 1979 and at the time of trial was 37 years old[2] and D was born on 3 February 1981 and at the time of trial was 35 years old.[3]
[2] T17.
[3] T132.
The accused is married to Jamilah (known as Jill) Ricciardi who is the sister of L and D’s mother, Josephine Elkhoury. Josephine is married to Raif (known as Ray) Elkhoury.
Both complainants lived with their parents, brother, Richard Elkhoury and sister, Mae Elkhoury in an address in Edwardstown. Both complainants commenced schooling at St Joseph’s Primary in Kurralta Park up until Year 3.[4]
[4] T24.
In 1988 L moved to St Johns the Baptist Primary in Plympton and D did so in 1989.[5] L had repeated Year 3 and that narrowed the schooling gap between L and D to one year. L left St Johns after completing Year 7 in 1992[6] and D left St Johns after completing Year 7 in 1993[7] and both went to St Aloysius. The time that the complainants were at St Johns is particularly relevant on the prosecution case as being the time when the accused is alleged to have sexually abused them.
[5] Exhibit P1.
[6] T25.
[7] Exhibit P1.
In 1989, one year after L started at St Johns, Raif and Josephine Elkhoury purchased a delicatessen in Croydon Park.[8] It is alleged by the complainants that the accused was responsible for taking them to school during this period as their parents would be at the delicatessen from very early in the morning. They were a close family who shared meals together and the like. Some of the instances of sexual abuse are alleged to have occurred before and after these school pickups and drop offs. D gave evidence that on one occasion she witnessed the defendant kissing L in the garage of the Ricciardi house in Plympton.
[8] T248.
The complainants also gave evidence about spending time with the accused on weekends and holidays. They gave evidence about a trip to the Finders Ranges where both complainants allege instances of sexual abuse. Their brother Richard Elkhoury also gave evidence about this particular holiday.
The prosecution also called the complainants’ parents, Josephine and Raif Elkhoury.
The accused called his children, Melissa Ricciardi and David Ricciardi to give evidence. The accused himself did not give evidence.
Neither L nor D reported the matters to the police until 2012. There was a significant delay between the time of the alleged offending and the trial. The offending allegedly occurred between 1988 and 1994. The delay between the alleged events and trial was twenty two – twenty eight years.
Persistent Sexual Exploitation of a Child
The prosecution must prove each of the following elements or ingredients beyond reasonable doubt to make out the offence of Persistent Sexual Exploitation of a Child:
·That the accused was an adult at the time he committed the alleged acts of sexual exploitation;
·That the accused committed the acts against a particular child;
·That the child was under the prescribed age (i.e. under 17 Years);
·That the accused committed more than one act of sexual exploitation;
·That the acts were committed over a period of not less than three days.
·I note that I do not have to be satisfied beyond reasonable doubt of all of the acts alleged; it is sufficient if the prosecution proves at least two acts of sexual exploitation.
A person commits an act of sexual exploitation if he commits a sexual offence. Section 50 of the Criminal Law Consolidation Act, 1935 (CLCA) defines ‘sexual offence’ to include offences created by the CLCA comprising a wide range of sexual offences such as rape, unlawful sexual intercourse, indecent assault and gross indecency. The prosecution does not have to prove two or more sexual offences of the same type: the acts may involve the same type of sexual offence or different types of sexual offences.
Indecent assault
To prove an act of Indecent Assault I must be satisfied beyond reasonable doubt that the following elements are proven:
That the accused committed an assault on the complainant. An assault is the voluntary and intentional unlawful application of force or violence to another person. The application of force may not be great. Any touching or handling would be enough. The application of force need not cause any injury. The application of force or violence must be voluntary and intentional so that a purely unintended accidental touching for example, would not be sufficient. The application of force must be unlawful, that is, without lawful justification or excuse.
The application of force would be unlawful if applied without consent or in the case of an assault in circumstances of indecency, the victim was under 17 years old.
The second element is that the assault must be accompanied by or occurred in circumstances of indecency.
Unlawful Sexual Intercourse
The prosecution must prove each of the following elements or ingredients beyond reasonable doubt to make out the offence of Unlawful Sexual Intercourse:
That the accused had sexual intercourse with the complainant. In this case it is alleged that the accused inserted his finger into D’s vagina.
That the sexual intercourse was voluntary and intentional on the part of the accused i.e. he was not forced to do it and it was deliberate, not accidental.
That the complainant was under the age of 14 years.
Issues at the trial
In respect of each charge the issue at trial was whether or not it was proved that the alleged acts occurred. No issue arose as to identity or whether the conduct alleged by the complainants would amount to the offences charged; the issue was whether the prosecution had proved beyond reasonable doubt that the events alleged occurred.
Cross-admissibility and Discreditable Conduct
The prosecution contends that the evidence of each complainant is cross admissible on the other count. This was said to have been led to explain why the accused was emboldened to commit offences near and/or in the presence of the other complainant. The prosecution also contends that the evidence of each complainant is corroborated by the other complainant. They say this proves an ongoing series of sexual offences of same or similar character committed as a scheme or system that discloses an underlying unity of intent.
It is useful at this stage to discuss the most recent cases that outline the principles of admissibility.
R v March[9] concerned charges of sexual assault upon the appellant’s two step-granddaughters and the admissibility of evidence of another granddaughter as to admitted acts of indecent assault upon her by the appellant. Kelly J (with whom Kourakis CJ and Sulan J agreed) considered the admissibility of the discreditable conduct evidence:
It is my view that the facts of this case are such as to justify the admission of the evidence of VI, V2 and X on such a basis as identified by Peek J in Maiolo (No 2). The basis for cross-admissibility advanced by the prosecution at trial was the improbability of V1, V2 and X independently imagining or concocting stories with a high degree of similarity of detail. That is so, however in my view, another proper basis for admission of the evidence was for a permissible propensity use; not a propensity to commit this general type of crime but a propensity.
The appellant submitted that the evidence of X was not admissible and ought not to have been admitted into evidence at the trial in respect of the counts alleged against V1 and V2.
Because, in my view the evidence of X was properly admissible for a propensity use, the admissibility of that evidence in the trial depended on whether X’s evidence had ‘strong probative value’ having regard to the accounts given by either V1 or V2 so as to satisfy the test in s 34P(2) of the Evidence Act. That section provides:
In my view X’s evidence did satisfy that test. Absent collusion, the evidence sought to be led in this case did have strong probative value as an item of circumstantial evidence. Moreover, the degree of probative value was such that it clearly transcended any prejudice it might cause the appellant…
[9] [2014] SASCFC 54.
Kelly J then analysed the features of the appellant’s behaviour which demonstrated an underlying unity.
In my view having regard to these features of the appellant’s conduct, the girls’ accounts are such as to raise the improbability as a matter of human experience of each of them making up such similar accounts of indecent handling by the appellant who was respectively their grandfather or step-grandfather. In fact, the brazenness and the sheer impudence of the appellant’s indecent dealing with the girls amplifies the improbability of them independently fabricating such similar accounts.
The facts of this case are not dissimilar to the facts in R v Ellis. Although that case was decided prior to the enactment of s 34P of the Evidence Act the reasons of the Court in concluding that the evidence of each complainant was cross-admissible at the trial are directly relevant to the issues which arise here.
This is also a case where the combination of circumstances including the relationship of each child to the appellant, the time and place where each offence occurred, together with the nature of the indecent behaviour alleged, did reveal an underlying unity or a pattern which raises as a matter of common sense and experience the objective improbability of the events occurring other than as alleged by the prosecution.
The sole criterion for admission of the evidence was the strength of its probative force. It is my view that its strength is such that to exclude it would be an affront to common sense. For these reasons I consider the evidence of V1, V2 and X was admissible in respect of each count.
Kelly J also referred[10] (with approval) to R v C, CA[11] wherein the Chief Justice discussed s 34P(3) Evidence Act[12] and the permissible and impermissible uses (forms of reasoning) of discreditable conduct evidence. The Chief Justice said:
The mischief to which s 34P(3) of the Evidence Act is directed is the risk that the tribunal of fact, whether a judge or jury, will be distracted by the impermissible use of evidence if that use cannot be sufficiently differentiated from its permissible use. The uses referred to are forms of reasoning. Section 34P of the Evidence Act prohibits reasoning that a person who has engaged in discreditable conduct is, by reason of that bare fact alone, more likely than not to have committed the offence. Put another way, it is impermissible to reason that a person who has engaged in any form of discreditable conduct is likely to have a predisposition to commit the crime charged whether or not, as a matter of human experience, there is any probative connection between the conduct and the crime by way of predisposition or proclivity. I will refer to the impermissible reasoning as ‘bad person’ reasoning.
The permissible forms of reasoning allowed by s 34P of the Evidence Act are, speaking broadly, twofold. First, if the discreditable conduct evidence is strongly probative of the existence of a behavioural proclivity to engage in conduct of the kind charged whenever an opportunity arises, it is permissible to use that evidence as an item of circumstantial evidence indicating guilt. The second form of reasoning is improbability reasoning which has a probative force independent of any proclivity. The improbability can arise from a wide range of circumstances and in many different ways. Common examples include “cauliflower ear” similarity in modus operandi, coincidental presence or involvement in the place or circumstances of the crime for which an innocent explanation is improbable, and the improbability of complainants independently fabricating similar accounts.
[10] Ibid at [23].
[11] [2013] SASCFC 137.
[12] R v C, CA, ibid at [76]-[77].
Kelly J expressed the view that the statements by the Supreme Court in R v M, BJ, R v Maiolo (No 2) and R v C, CA ‘represent a distillation of the principles to be applied in a trial where a number of offences of a sexual nature are charged on one Information in relation to separate complainants’.[13]
[13] R v March, ibid at [24].
Kourakis CJ, subject to two observations, also agreed with Kelly J. Those observations were as follows:
First, I make the point that the words ‘underlying unity’ express a conclusion and do not, in themselves, explain the reasoning which ‘unites’ or connects the evidence of the offending and the evidence of other conduct in a compelling way. I understand the references to ‘underlying unity’ and ‘pattern’ in [30], [31] and [36] of her Honour’s judgment to be directed to the ultimate conclusion about the probative force of the evidence adumbrated in those paragraphs, in denying the possibility that the complainants’ allegations were independently concocted. I refer to evidence of that kind as improbability of similar account evidence.
Secondly, I observe that the Judge did not leave the evidence of the other offending to the jury in a way which relied on a particular propensity of disposition. The evidence in this case showed the appellant to have a strong sexual interest in early-teenage girls notwithstanding their familial connection and showed that he was driven to act on his sexual impulses even when there was a significant risk of detection. I tend to the view that the probative force of the evidence of offending against each of the girls as evidence or propensity was strong. However, it is not necessary to finally determine that question because the Judge’s decision not to direct the jury on that probative use of the evidence was favourable to the appellant. Importantly, the Judge’s general warnings against impermissible use removed any risk that the jury would engage in propensity reasoning on their own accord.
Naked women drawings - s 34P
The prosecution also contend that the alleged showing of a drawing of a naked women to the children demonstrates how the accused attempted to desensitise the children about sexual matters. It was said to be a form of grooming.
Discussion
As a starting point it is necessary to identify the issues in the case. As is dealt with below, no question of identity arises. The main question is whether it has been proved by the prosecution, beyond reasonable doubt, that the objective elements of each count have been made out.
In respect of each complainant, apart from the allegations surrounding each count, the prosecution relies upon discreditable conduct, mainly in the form of allegations similar to the charged offending having occurred on multiple occasions. I will refer to that as uncharged conduct. I make it plain that I would not place any reliance upon uncharged conduct unless I was satisfied it occurred.
Next I turn to the suggested purposes or relevance of the uncharged conduct. Put very broadly, it is said that it places the actual alleged offending in a proper factual setting. Expressing it in such a fashion is not adequate for this purpose, but the charged conduct did not happen in a vacuum; they were not isolated events. The more evidence there is of the interaction between the complainants and the accused the better opportunity I have to evaluate their evidence and determine to what extent, if at all, I am prepared to rely on it.
As can be seen from the factual discussion below, the charged occasions do not represent the first occasion of alleged sexual contact between the complainants and the accused.
The uncharged conduct goes to explain why no prompt complaint was made when the charged events occurred. The uncharged conduct shows that the conduct of the accused became commonplace for them and nothing out of the ordinary. They tend to explain how each came to submit to the sexual misconduct, including the charged events. The accused proved threats reinforced the need for silence on L’s part; she said she was scared. The uncharged conduct tends to explain why he expected or anticipated their silence in the face of what was occurring on the charged occasions. The uncharged acts explain the duration of the sexual events between the accused and L.
The uncharged acts go to explain the dynamics of the relationship between the accused and D and L, particularly in the familial situation. They explain a lack of surprise on the charged occasions and tend to explain why each may not remember precise details of the charged offending (although the long delay in making any complaint also goes to explain this aspect).
The uncharged acts go to explain why the accused felt emboldened to continue his sexual conduct, bearing in mind there was an ever-present risk of discovery for conduct in his own home or when others were present or nearby.
Applying s 34P(2) of the Evidence Act, the uncharged conduct has strong probative weight having regard to the issues at trial. There is no doubt in my mind that the probative weight of the evidence substantially outweighs any prejudicial effect on the accused. Uncharged conduct has the potential for impermissible use. I indicate that the mere fact of any proved or alleged uncharged conduct does not in any sense absolve me from the task of determining whether the charges themselves (or at least the objective facts in this case) have been made out. Further, the uncharged conduct cannot be used to say the accused would be more likely to commit these offences or that he is the sort of person who would commit these offences. Still further, it would be wrong to use proved uncharged conduct to say that some sexual impropriety occurred with D or L or both, and convict on that basis alone.
I now turn to the question of collusion between L and D to make false allegations against the accused. For reasons that I discuss below, I am quite satisfied that there was no collusion between them to make false allegations. I am quite satisfied that both were honest witnesses who were doing their best to be truthful in their evidence. Reliability is something quite different and to which I will return.
I am satisfied there was no collusion between L and D based on my assessment of each individually as a witness. They were quite different witnesses. Without being thought to be critical, L lacked confidence, guile or sophistication; she had an innocent, agreeable, straightforward, presentation. I did not get the slightest impression she was tailoring her evidence to conform with an account to be given by D.
D was more confident, self-assured, mature and sophisticated. There is some overlap between the evidence of D and L, but to a significant degree their accounts cover different topics divorced from each other. At the same time they do give similar accounts but arising in different and quite unusual factual settings.
In my view the evidence of the two complaints is cross-admissible on the basis of improbability reasoning, that is, the inherent improbability of accounts being given by two complaints being independently imagined (concoction having been rejected by me). In my view the probative value of the evidence substantially outweighs the prejudicial effect of it for the purposes of s 34P(2)(a). Further, the permissible use of the evidence is, and can be kept, sufficiently separate and distinct from an impermissible use. Being a trial by judge alone I am acutely aware of an impermissible use of evidence and have guarded against that. I have limited the use of the evidence to its proper purposes. Although there is much to be said in this case for the approach that the evidence shows a particular propensity or disposition that would satisfy s 34P(2)(b), I have not approached it in that way.
On the separate topic of the accused allegedly showing drawings of naked women to the complaints, that evidence is admissible as evidence of grooming and its weight substantially outweighs any potential for prejudice to the accused.
Forensic disadvantage
In R v Cassebohm[14] Doyle CJ considered s 34CB. His Honour there considered the directions to a jury. I am of the view that I must give consideration to the same issues which would be the subject of direction to a jury. In R vCassebohm, Doyle CJ observed that whilst it is not sufficient for an accused to identify a theoretical, hypothetical or assumed forensic disadvantage, s 34CB does not require an accused to show something actual or specific. It is sufficient for a trial judge to conclude that the lost, missing or unavailable material is likely to have assisted even though one cannot be certain that that is so. He stated:
‘It will not be sufficient for the trial judge to identify a theoretical or hypothetical or assumed disadvantage to the accused. On the other hand, if it were necessary for the accused to satisfy the judge of an actual and specific disadvantage, the provision would offer little protection to a defendant. One can rarely be sure what a deceased witness might have said, one can rarely know what a person might have remembered twenty years ago but no longer remembers, one can never know what is in a document now lost. I consider that it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that that is so. For example, an accused might suffer from a significant impairment of memory attributable to illness that has occurred in the time that has elapsed between the alleged offence and the trial. Who can say what the accused would have remembered if his memory had not been impaired by illness? But I would accept that a defendant in such a position is at a forensic disadvantage, because the defendant no longer has the benefit of a memory unimpaired by illness. I should add that in this example I am postulating a significant memory impairment. Similarly, after many years have passed it is not difficult to conclude that the normal memory loss that occurs gives rise to a significant forensic disadvantage. Of course, in a particular case there might be no sign of memory loss, or the case might be one in which the accused's memory is not a relevant matter. The judge will have to consider each of the aspects of forensic disadvantage identified by McHugh J and by Crennan J: that is, the difficulty of testing the complainant's evidence, and the difficulty of marshalling a defence. Other circumstances, not attributable to the passage of time, may well need to be considered’.
[14] (2011) 109 SASR 465 at 469-476.
I also note the considerations referred to by Peek J in Maiolo (No.2) at paras 179-181. I have taken those forensic disadvantages into account as well as those referred to by Doyle C J when scrutinising the evidence.
The allegations in respect of each complainant concern conduct which occurred twenty two – twenty eight years ago. There is no evidence as to when the accused was charged or became aware of the allegations. I am satisfied that the accused has suffered a significant forensic disadvantage by reason of the delay. I infer that the accused has had difficulty challenging and responding to allegations about events that occurred so long ago. The delay has led to the complainants and other witnesses being unable to remember precise times and dates and many other matters of detail. The delay has disadvantaged the accused because there is a reduced ability to test the complainants’ accounts in detail. If there had been a prompt complaint of all or some of the offending the accused and or other witnesses may have been in a position to remember back to a particular time and recall those circumstances. The accused may have been able to point to other persons or other evidence which would have shed light on the incident or whether the incident occurred as described by the relevant complainant. The absence of a prompt complaint also means that there is no medical or other scientific evidence referrable to the complainants’ account of events.
Overview of the prosecution case
Evidence of L
L gave her evidence outside of the courtroom via CCTV in accordance with the legislation. L has a learning disability and has some difficulty understanding sophisticated language.[15] As mentioned, L lived at an address in, Edwardstown with her family until 1996 when they moved to Plympton.
[15] T18.
The Ricciardi and the Elkhoury family were very close and would see each other five or more times a week, usually at the Ricciardi home. When cross-examined on the relationship with her cousins David and Melissa Ricciardi, she conceded that she was close to them, particularly with David Ricciardi, with whom she would share ‘personal things’.[16]
[16] T78.
L recalled that the first car the accused drove was a green Jeep.[17] It was put to L in cross-examination that a family friend drove a green Jeep but L did not recall that particular family friend.[18] L also recalled the accused driving a white two-door Suzuki and a white four-door Jeep.[19] The ownership of the latter two cars by the accused are confirmed by Exhibit D7, a defence statement of agreed facts.
[17] T21.
[18] T107.
[19] T22.
L recalled the layout of the Ricciardi house to me, assisted by Exhibit P2. L said that the accused had always lived in the house at Plympton except for two occasions where he was ‘kicked out’ and went to live with a friend called Franco Costilli.[20] I will return to the allegations relating to Franco Costilli’s house later.
[20] T24.
As mentioned, L attended St Joseph’s Primary School from 1984 until she moved to St Johns in 1988.[21] L experienced bullying during her school years and also said that after being taught ‘Sex-Ed’ at St Aloysius, she started slowly avoiding the accused.[22]
[21] T24 Exhibit P1.
[22] T75.
In terms of L’s morning school routine, whilst L attended St Joseph’s, the accused or her aunt Jamilah Ricciardi would drive L to school.[23] Whilst she was at St Johns, the accused would take L and D to school ‘normally every day’ but when cross-examined, said that sometimes her mother would take her and D to school.[24] L said she and D would be home alone when the accused arrived as their parents would be at the delicatessen and their older siblings had already left for school.[25] The accused would arrive after 8.00am in what L described as his green Jeep and come into the house through the back door, which they opened for him.[26] The accused would greet both complainants with a kiss on the cheek. D would get in the car and the accused would then give L an open-mouthed kiss on the lips. L would kiss him back and described it as ‘feeling good’.[27] When asked how often the kissing occurred, L said it happened ‘often enough’.[28]
[23] T25.
[24] T78–T80.
[25] T27-T28.
[26] T27.
[27] T28.
[28] T33.
L said that nothing else happened other than kissing during this morning routine ‘because we were running late for school’.[29] L clarified in cross-examination that where she says in her statement to police that the accused never did anything to her at her home, that was only in reference to ‘touching’, not kissing.[30] In cross-examination, L could not recall if they would stop to pick up another girl on the way to school. She denied that she and D would most often be waiting outside the house for the accused, but conceded that occasionally they would wait out the front if he was running late.[31] L denied that Jamilah Ricciardi would be with the accused on every occasion but conceded that Melissa and David Ricciardi would be in the car for these morning pickups.[32]
[29] T34.
[30] T86.
[31] T84.
[32] T83.
In terms of L’s after school routine, the accused or Jamilah Ricciardi would pick D, David and Melissa Ricciardi and L up from school, in the white Suzuki and take the children back to the Ricciardi house.[33] It was more often the accused. L said Jamilah Ricciardi would be busy cooking or attending Hamilton School, studying to be a language teacher. [34] L’s mother would pick them up from the Ricciardi house around 8.00pm-8.30pm but when cross-examined, L conceded that sometimes her mother would pick them up before the delicatessen closed.[35]
[33] T34, T94.
[34] T28-T29.
[35] T95.
I turn now to consideration of the incidents that are alleged to have been committed on L by the accused in the Ricciardi house. None of these incidents occurred while L’s parents were in the house.[36] L said she never told anyone about these incidents because she was ‘too scared’. She said her parents would always say, ‘never let anyone touch you, if you get touched it is your fault’. L said that if she had told someone ‘they wouldn’t believe us’.[37]It was said in cross-examination that while L was playing with the other children, the accused would come over and tell L to meet him in the garage in five minutes.[38]
[36] T39.
[37] T43.
[38] T93.
The first specific incidence of sexual exploitation L says happened was in ‘Garage 1’ of the Ricciardi house, with reference to Exhibit P2. Generally, L said the accused touched and kissed her in there with L sitting on the bench, after school and during the school holidays. The accused would put his finger in L’s vagina while he had his penis out, touching it.[39] L conceded that sometimes Jamilah Ricciardi would be cooking at the time and the other children would be playing.[40]
[39] T34.
[40] T97.
Specific incident – ‘Garage 1’ involving L forming part of Count 3
L recalls a specific occasion where D walked in on her and the accused.[41] L was sitting on the bench in ‘Garage 1’ that she later identified in Photograph 9 of Exhibit P3. The accused had his finger in L’s vagina and they were kissing, open-mouthed and had been doing so for about ten minutes.[42] D appeared at the door and asked what they were doing. They separated and the witness got off the bench. The accused replied he was checking her teeth.[43] He grabbed her jaw and started looking in her mouth. L had braces at this time, was in Year 7 and was wearing her summer school uniform. L went with D, who again asked what they were doing and L replied that he was checking her teeth. L was too scared to actually tell D what they were doing. She was scared of ‘being told off’ as the accused was their main carer, ‘like a dad’ to them, they had to do what he said, and he had guns.[44]
[41] T40.
[42] T41.
[43] T40.
[44] T41-T42.
When cross-examined, L admitted that in her initial statement to police she did not mention sitting on the bench[45] and clarified that the accused did not have his penis out on this occasion.[46] L denied that the garage was ever locked and denied that it was considered ‘out of bounds’ to the children.[47]
[45] T101.
[46] T101.
[47] T92.
Other uncharged sexual allegations involving L
L gave a general account of sexual acts between her and the accused alleged to have taken place in the main bedroom of the Ricciardi house. L identified the bedroom in Photographs 20-22 of Exhibit P3. In the bedroom they would take their clothes off and get into bed. The accused would keep a look-out through the window to see if his wife Jamilah Ricciardi was home.[48] L said the accused would touch her breasts and they would kiss open mouthed. He would touch her vagina and insert his finger. The accused would play with his penis and then insert it in her vagina ‘halfway’.[49] This is significant on the prosecution case as L said after sex education in Year 8 she asked the accused whether he had broken her seal, and he said, ‘no, I only go halfway, I never broke your seal’.[50] L said this happened three or more times, on weekends when there was no-one around and sometimes during school holidays.The incidents would only last for ten minutes or so and the accused would ejaculate into a tissue or handkerchief before putting on a strong aftershave.[51] She denied in cross-examination that the bedrooms were ever out of bounds.[52]
[48] T35.
[49] T37.
[50] T37.
[51] T38.
[52] T93.
If the other children were playing outside, L and the accused would kiss in the kitchen, standing next to the sink, by the window. The accused would be facing the window to keep an eye on David and Melissa Ricciardi and D outside.[53] The kissing would be ‘passionate’, ‘open-mouthed’, their bodies were together. L said this happened ‘all the time’[54] but conceded in cross-examination this did not occur when her aunt Jamilah Ricciardi was in the house.[55] L agreed that from the backyard, the house and kitchen were visible through the window.[56]
[53] T38-T39.
[54] T39.
[55] T98.
[56] T91.
Flinders Ranges trip
L recounted a holiday that the accused took her, D, David Ricciardi and Richard Elkhoury on, in the Flinders Ranges.[57] She further recalled a time whilst on this holiday when the accused told her ‘not to tell anyone’ about their sexual activity because he loved her and he wanted to marry her when she was grown up. L said this made her feel safe.[58] L recalled that they stayed for one night at a lake and then had two nights in the Flinders Ranges. When cross-examined, she agreed it was only two nights in total.[59] When L was under cross-examination, many propositions were put to her that she could not recall but I do not attach much significance to this as the events were so many years ago. Having said that, this does represent an example of the forensic disadvantage to the accused. I do not think she was attempting to avoid those questions. L could not remember whether they set up camp next to a creek in the Flinders on the second night but thought they may have swum in a creek the following day.[60]
[57] T50.
[58] T42.
[59] T116.
[60] T120.
L agreed that on a night they were staying in the tent, the accused was mostly outside at night, keeping the fire going and watching for foxes and also agreed that the accused shot a fox that came into the camp.[61]In cross-examination L agreed that they had the same sleeping arrangements for the trip each night – as one walked into the tent it would be either brother Richard Elkhoury or the accused on the left, then David Ricciardi in the middle, then L and then D on the end.[62] Richard and the accused had sleeping bags while the other children had an air mattress and blankets.
[61] T210.
[62] T118-T119.
L said the accused entered the tent and woke her up ‘every night’; although it is unclear on everyone’s account how many nights they were there. L said this happened in the ‘middle of the night’, when everyone was asleep and did not recall a time where D was awake.[63] L recalled that everyone, including D, appeared to have a good time but could not recall D telling Melissa Ricciardi that they had had a good time.[64]
[63] T121.
[64] T121-T122.
Specific incident – First Flinders Ranges incident alleged to be part of Count 3
At night time when each child was asleep in the tent, the accused entered the tent quietly, woke L up and told her to leave the tent. They then sat down on some rocks around the bonfire and the accused started touching her. He kissed her and touched her under her pyjamas on her breasts and then inserted his finger in her vagina. The accused ejaculated and L went back into the tent.[65]
[65] T51.
Specific incident – Second Flinders Ranges incident alleged to be part of Count 3
The second occasion of sexual abuse on the Flinders Ranges trip began with the accused entering the tent and telling L to come outside. L said they stood outside, about 10 metres from the tent. They kissed open-mouthed and he touched her breasts. L touched his penis until he got an erection, the accused put his penis in her vagina and ejaculated on a tissue. L had her right hand around his neck and right leg around him while the accused had his hand around her shoulders. On these occasions the accused told L he loved her and that no one would ever care for her like him.[66]
[66] T53.
Specific incident – Yahzee’s Farm alleged to be part of Count 3
I turn now to consider a time when Richard Elkhoury, David Ricciardi, D and L were taken on another holiday by the accused to a family friend, Yahzee’s farm in Alawoona. This was while L was attending St Johns and L believed she may have been about nine years old at the time. During the day, in a bedroom, while everyone else was outside playing, before they all went rabbit hunting, the accused rubbed his hands under L’s clothing, she touched the accused’s penis, and he put his finger in her vagina and touched her breasts until he ejaculated.[67] I am satisfied sexual intercourse took place.
[67] T43-T44.
L could not recall if they stayed more than one night at Yahzee’s farm. That night all the children stayed in the same room, the room that the accused touched L in, on air mattresses in sleeping bags. The accused slept in the bed in the same room.[68] L disagreed that the accused slept next to her or shared a blanket.
[68] T115.
The accused would occasionally stay at his friend Franco Costilli’s house, which L recalled being somewhere near Salisbury.[69] L went to Franc’s residence on two occasions whilst she was attending St Johns. On both occasions the accused had had a fight with his wife Jamilah Ricciardi and had been ‘kicked out’ of his home.[70]
[69] T23.
[70] T111.
Specific incidents at Franc’s house alleged to be part of Count 3
L was able to recall two specific occasions where the accused allegedly committed an act of unlawful sexual intercourse upon her in the accused’s room at Franco Costilli’s house. L and the accused would walk through the kitchen to go to his room which had a double bed. They would take off their clothes, the accused would put his finger in her vagina, touch her breasts and then insert his penis in her vagina. He would then ejaculate into a tissue. He would never use a condom.[71] On the first occasion, L recalls asking the accused if Franc was home and the accused told her he was not.[72] L thought it was the weekend as she recalled the accused had picked her up from the delicatessen. L differentiated the second occasion by recalling seeing Franc, who then went into another room.
[71] T47.
[72] T47.
At the beach – uncharged acts
The accused would sometimes take L, D, Melissa and David Ricciardi to the beach during the summer.[73] L could only recall Jamilah Ricciardi joining them if they were walking, not swimming.[74] The accused would pump up a ‘normal car’ tyre before they went. At the beach the accused would put L in the tyre. They would go out into the deep water. The accused never kissed L at the beach, but while she was in the tyre he would insert his finger into her vagina. L said she hated this as the salt water would sting her. L asked the accused to stop because it was really hurting. She said it then really hurt when she next had to urinate.[75] When it was put to L in cross-examination, she denied that the tyre was too small for her to fit in and further denied that the tyre was only used by Melissa Ricciardi.[76] L said the accused would do this every time they would go to the beach, in deep water, past the Brighton Jetty, with the tyre.[77] The other children would be on the sand.
[73] T54.
[74] T112.
[75] T54-T55.
[76] T114.
[77] T55.
Near the salt lakes – uncharged acts
L specifically recalled two occasions when the accused picked L up from the delicatessen and drove them to the salt lakes on South Road near Salisbury Bridge. Both occasions occurred while L was attending St Johns. L recalled the first occasion and said the accused picked her up from the delicatessen in the ‘white Suzuki, Jeep’[78] which L identified as being the car on the left hand side of Photograph 2 of Exhibit P3[79] and would then drive to the location, park the car, facing towards the traffic with trees shielding them. They kissed and the accused put his finger inside L’s vagina. L would touch the accused’s penis until he ejaculated. L was laying down in the passenger seat.[80]
[78] T60.
[79] T105.
[80] T58-T59.
On the second occasion at the salt lakes, the accused again picked up L from the delicatessen. The accused was sitting in the car, L lay on top of him and moved her hand up and down on his penis until the accused ejaculated on a tissue.[81] No one ever saw the accused or L there together and they would put the seat down so that people could not see them.[82]
[81] T59-T60.
[82] T104.
Police report by L
As mentioned, L did not report the matter to police until 2012. L said she wanted her mother Josephine Elkhoury to stop taking her grandchildren, Richard and Mae Elkhoury’s respective children, to the accused’s house.[83]
[83] T76-T77.
L was cross-examined about a lunch meeting she had with D in 2012 prior to giving a statement to police. L denied that they discussed their uncle or the allegations and said D simply told L that the police would be in contact and that she should ‘say everything and the truth’ to the detective.[84]
[84] T124-T127.
L said she was still friendly with Melissa Ricciardi prior to reporting the matter to police but she would actively avoid the accused if he were to come around to her house, locking herself in her room.[85]
[85] T122.
Evidence of D
D is the younger sister of L. D recalled seeing the Ricciardi family on an almost daily basis. D’s mother, Josephine Elkhoury and Jamilah Ricciardi were very close and they would speak on the phone every day. D said Josephine Elkhoury was also close with the accused, and her father Raif Elkhoury was civil with the accused.[86]
[86] T134.
D recalled being in Year 3 at St Joseph’s when the accused first picked her up for school, and L was taken to St John’s.[87] D said the accused drove a beige van with manual transmission. D did not recall the accused ever picking them up in a green Jeep.[88] Mae and Richard Elkhoury caught the bus to school at this time while D and L would be left at home alone. When D reached Year 4, the accused would take both D and L to St Johns. In Year 7, half of the time D would take the bus to school and at other times the accused would pick up D and take her to a skin specialist appointment.[89] The accused would still collect D and David Ricciardi from St Johns in the afternoons.[90] In Year 8, the accused no longer took or picked D up from school and D said she caught the bus to the delicatessen.
[87] T136.
[88] T173.
[89] T163.
[90] T164.
D recounted her morning routine before Year 7. She said her and L would get up at about 7.00am with their parents having already left for the delicatessen. Richard and Mae Elkhoury would leave at approximately 7.30am. D and L would dress themselves, have breakfast, watch television and wait for the accused to pick them up.[91] They were on a reasonably tight schedule in the morning.[92] When it was put to her in cross-examination, D denied that she and L would wait out the front for the accused to arrive. She further denied that Jamilah Ricciardi would knock on the door and that the accused would stay in the car.[93]
[91] T137-T138.
[92] T174.
[93] T175.
The accused would arrive from 8.30am to 8.45am in the morning. School would start at 8.45am. Normally D would be watching TV in the family room and L would be doing the dishes. D said the accused would enter through the back door, through the lounge room to the kitchen. D said he would then rub his hands together and ask where his kiss was. D would try to kiss him on the cheek but the accused would make it a kiss on the lips with a closed mouth. It would last for 2-3 seconds, no more than 10 seconds.[94] The accused’s wife Jamilah Ricciardi took them to school a few times during their years at primary school. D cannot recall that her parents ever took them. D denied that her mother would sometimes take them to school.
[94] T139.
When asked in cross-examination, D agreed that her parents hired a woman to work in the delicatessen. She could not recall if they hired her so they could take their children to school.[95] D said the beige van was a manual and to D’s knowledge Jamilah Ricciardi could not drive a manual.[96] David Ricciardi would occasionally, but not always be in the van and would sit in the front seat. D recalled that when Melissa Ricciardi reached school age she would be in the van. When put to D in cross-examination, she denied that Melissa Ricciardi was in the car before she had even started kindergarten.[97] D could not recall the accused travelling to another house to collect a girl named Elaine.[98] D said her only recollection relating to Elaine was of her being present at family functions. She said she understood Elaine to be Yahzee’s daughter.[99]
[95] T172.
[96] T173.
[97] T174.
[98] T174.
[99] T197.
D was able to recall two specific incidents of alleged sexual abuse on her by the accused during a morning pick up. The first specific incident D can recall was when she was in Year 4, wearing her summer school uniform. She recalled watching the Smurfs and the accused arrived in his beige van. The accused walked in rubbing his hands saying, ‘hello, hello’ ‘where’s my kiss, where’s my kiss?’ D said L was doing the dishes at this point.[100] D collected her school bag and kissed the accused on the lips inside in front of the back door. D recalled that the kiss he gave to L in the same position was more intense and close mouthed. D described these kisses as being different from those that they would normally give in front of family, normally it would be on the cheek.[101] D said that this was not the first time that it happened but it was a specific occasion that she recalls. D could not recall if anyone else was in the van on this occasion.
[100] T140.
[101] T141.
Count 1 – Indecent Assault
The second incident D recalled as follows: the accused said ‘good morning’ and rubbed his hands saying, ‘where’s my kiss, where’s my kiss?’[102] On this particular morning D did not want to give him a kiss. She ran away from the accused, around the table, anti-clockwise towards the wall with the back door.[103] D was able to point out the location of the table and the back door on Exhibit P4. D said the chasing was not a game and they had never done this before. D recalled the accused grabbing hold of her from behind, between the kitchen sink and the table. He held her down with his left hand, used his right hand to fondle her chest for no more than 30 seconds and rubbed in circles on her vagina over her school summer uniform for no more than 30 seconds.[104] D did not recall the accused saying anything when he did this and does not recall saying anything herself. L was at the kitchen sink washing dishes when this happened, about 3 or 4 metres away. D said after this the accused said, ‘where’s my kiss?’ and D turned her head and the accused kissed her on the lips, the same type of kiss as the first incident.[105] D said this specific occasion occurred within ten months of the last occasion. She also said it was not the first time the accused had touched her like this and it happened five times a week.[106]When D was cross-examined on this, she conceded that she previously said in her statement in April 2012 that the accused kissed her before fondling her[107] but it is now her memory that the fondling occurred first and then the kissing.[108]
[102] T145.
[103] T145-T146.
[104] T147-T148.
[105] T150.
[106] T148.
[107] T179.
[108] T198.
D recalled that after this, the accused grabbed L from behind whilst she was washing dishes and rubbed L on the chest using his right hand. L turned her head to see the accused. The accused stood behind her and after touching her chest he gave her an intense, close-mouthed kiss.[109] D recalled that the accused rubbed L’s chest for more than 30 seconds but less than 1 minute.D recalled that they then got in the beige van and went to school. On this occasion David Ricciardi was in the front seat of the van. D and L sat in the back.
[109] T149.
Under cross-examination, D said she would see the accused touching L on the breast and vagina outside of her clothing at least as often as it happened to herself. D said these sort of incidents occurred every day, Monday to Friday.[110] L would be in the house when this happened, nearby. D agreed with the proposition that the accused made no effort to conceal himself kissing D from L. D said she was in the house when the accused kissed L on this occasion and denied being in the car.[111] I note that L did not give any evidence that she witnessed the accused fondling or kissing D in the manner that D has described, nor did she say that D was present for the acts committed upon L.
[110] T176.
[111] T177.
Flinders Ranges trip
D told the court that in the summer holidays of 1992, when she was about to start Year 6, the accused, David Ricciardi, Richard Elkhoury, L and D went camping in the Finders Ranges.[112] D estimated that the trip went for about five days or approximately four nights. In cross-examination D denied that the trip only went for two nights and that the trip was cut short due to the hot weather.[113] D said this was not the first time they had been camping. D said they have gone camping possibly two other times, to Alawoona. On this trip to the Flinders Ranges, the accused drove his beige van. When asked in cross-examination, D could not remember if they stopped in at Port Pirie to see their Uncle Nabee nor could she recall if they stayed at a caravan park on the first night.[114]
[112] T152.
[113] T187.
[114] T188.
When it was put to D in cross-examination, D did not recall David Ricciardi being bitten by a bull ant nor did she have a recollection of swimming in the pool at a caravan park the following day nor that Richard Elkhoury drove that day. Further she did not specifically recall there being a night when the accused shot a fox. [115] I do not find it hard to accept that these minor details have not been retained in the mind of the witness over time, although, again it represents a forensic disadvantage.
[115] T189-T190.
D recalled staying at Wilpena Pound for one night, next to a creek, with no other people staying in that area.[116] D recalled the accused washing himself in the creek in his underwear,[117] the night after the incident subject of Count 2.[118] D said they slept in a tent that had Richard Elkhoury, the accused, David Ricciardi, L and herself, side by side, within centimetres of each other.[119] D did not recall if they slept in the same configuration each night. D denied that the accused slept on the end.[120] It was D’s recollection that Richard Elkhoury was on the end, then herself, then the accused, then L and then David Ricciardi.[121]
[116] T154.
[117] T190.
[118] T199.
[119] T154.
[120] T189.
[121] T155.
Count 2 – Unlawful Sexual Intercourse
On the night that they stayed in Wilpena Pound, D said she awoke to find her tracksuit bottoms and underwear had been pulled down to her ankles. The accused was ‘vigorously rubbing (her) vagina’ when she woke up and within seconds of this he was inserting his fingers into her vagina.[122] D knew it was the accused as she knew what his ‘big, rough hands’ felt like and she could feel the accused’s moustache touching the side of her face. D described shoving his hand away after more than a minute, less than two minutes and not being able to move at first because she was ‘paralysed with fear’.[123] D said she slid over to the other side of her brother to sleep. Richard did not wake up. However, D could not get to sleep again.
[122] T155.
[123] T157.
When asked in cross-examination, D said she was not aware of L and the accused leaving the tent that night.[124]
[124] T192.
D said this was the first time the accused ever touched her under her clothing.[125] The next morning, Richard Elkhoury questioned why D was sleeping on the other side of him. She said she was too hot.[126] D said she did not tell anyone about the incident because she was scared, angry, disgusted and did not know what to do. The accused had guns as they were on a hunting trip.[127] D said she was very angry when she woke up and refused to speak to the accused, unless forced to reply to him. When cross-examined on this, she further said she was in a bad mood for ‘a while’ but did not recall if there was a time when she stopped playing with the children.[128]
[125] T158.
[126] T159.
[127] T158.
[128] T193.
D said she never went on another camping trip with the accused. However, the two families remained close. The Ricciardi family would go to her parent’s delicatessen on weekends and the morning pick up and afternoon routine continued.[129] D, in cross-examination denied telling Melissa Ricciardi that she had had a great time when she got back from the trip.[130]
[129] T159-T160.
[130] T193.
D recounted that during the summer, the accused would take L, David and Melissa Ricciardi and her to the beach. They would go at least a few times a week in the holidays and on weekends.[131] D said nothing of a sexual nature ever happened to her at the beach. D said they would take an inflatable round donut to the beach. It was black, with a hole in the middle. The children would take turns sitting in the donut while the accused would take them out into the deep water. D said the accused only went out as far as he could while still being able to walk.[132] When asked in cross-examination, D denied that David Ricciardi would not have been able to fit into the donut and further denied that it was just used by Melissa Ricciardi in the shallows.[133] D said she never saw anything of a sexual nature happen at the beach.[134]
[131] T153.
[132] T171.
[133] T187.
[134] T171.
D said she could not recall anything of a sexual nature ever happening to her at Alawoona.[135] D recalled going there on two occasions and staying in the dilapidated farm house. They all stayed in one room, all on the floor on air mattresses.[136] D said a family friend, Yahzee Kamleh, used to work on the property and the accused would go shooting on the property.
[135] T160.
[136] T169-T170.
In terms of D’s after school routine, the accused would pick up D, L and David Ricciardi and they would go back to the Ricciardi home.[137] Occasionally the accused would get them to walk back. D conceded Melissa Ricciardi was also in the van, even before she started kindergarten but denied that her aunt Jamilah Ricciardi was also in the van.[138] D said quite often no one was at the Ricciardi house when they got there. Jamilah Ricciardi was studying at university. Jamilah studied most days and they would only see her for about 30-60 minutes before their mother came to pick them up.[139] D agreed that her mother would pick them up between 5.00pm and 6.00pm. Sometimes she would pick them up after the delicatessen had closed. D said the children were together often during these times, but not 100% of the time.[140] D recalled Jamilah Ricciardi’s father visiting in 1990 but does not recall how long he was there for or where he was staying.[141] D said that their grandfather was not there when the garage kissing incident occurred.[142] D said she was never told that the bedrooms were out of bounds.[143]
[137] T160.
[138] T181.
[139] T160.
[140] T181.
[141] T182-T183.
[142] T198
[143] T183.
Evidence from D Incident concerning L in ‘Garage 1’ (forming part of Count 3)
D recalled this incident happening when she was in Year 5 (1991), after the two morning incidents, but before the Flinders camping trip.[144] D said she saw L sitting on the accused’s work bench in the garage. Her legs were apart and they were kissing open-mouthed.[145] Prior to this D had been playing with David Ricciardi outside. D went inside to find L and then went into the garage,[146] the shed door was open.[147] D recalled that when she saw them she said in an assertive and angry manner, ‘what are you doing?’ They immediately pulled apart and the accused said, ‘I am just checking her teeth.’[148] D did not see where their hands were and the accused did not do anything to L’s teeth. In cross-examination, D said she was focussed on the kissing and did not see one way or another where their hands were.[149] D then said, ‘L, come and play’[150] while she was still sitting on the bench. D said she did not ask L about what had happened. She could not talk to L about it.
[144] T166-T167.
[145] T164.
[146] T165
[147] T184.
[148] T165.
[149] T185.
[150] T165.
L, D, David and Melissa Ricciardi and the accused were at home at the time and L and D were wearing their summer uniforms.
D said she had gone looking for L because she was missing, they were together often so if one of them was missing D would notice and they would look for them.[151]
[151] T184.
Sketches drawn by the accused
When D was in about Year 6, after the Flinders camping trip, she recalls seeing the accused drawing on two occasions.[152] On the first occasion, while in the TV room with D, L and David Ricciardi, the accused was drawing a detailed sketch of a naked woman on an A4 piece of paper. It was ‘quite a detailed sketch of a naked woman who was sitting with her legs bent and spread apart revealing her vagina [and] pubic hair in detail.’[153] The accused showed the picture to D, L and David Ricciardi and said, ‘look at this beautiful woman.’ D said the accused seemed happy and proud. D said she felt disgusted and could not understand why he did this.
[152] T161-T162.
[153] T161.
On the second occasion, D, L and David Ricciardi were again sitting around the dining table with the accused. The accused had drawn a similar drawing to the one on the first occasion. Again the accused had put a lot of detail into the vaginal area of the drawing. D said the accused again said, ‘look at this beautiful woman. Look what I have drawn.’ Again, he looked happy and proud of the sketch.[154] D did not recall Melissa Ricciardi being there.[155]
[154] T162-T163.
[155] T186.
D said at the beginning of Year 6 the accused stopped abusing her.[156] The last time the accused touched her was in the Flinders Ranges.
[156] T152.
D did not report the matter until 2012. D explained that she suppressed it and only reported it when she believed her nieces and nephews were at risk of being abused by the accused.[157] In 2012, D’s father, Raif Elkhoury had no relationship with the accused, however, her mother, Josephine Elkhoury was still close to the accused and would take the grandchildren over to the Ricciardi house when she was babysitting.[158] D did not express her concerns to her mother directly, though she did express some general concern.[159]
[157] T168.
[158] T168-T169.
[159] T169.
Under cross-examination, D said in 2012, she told L that the police would be contacting her. D said she did not tell L what it was about. They met at Scoozi Café for lunch. D said that by this time L had seen Officer Sparks in person.[160] D recalled that L said words to the effect of ‘I didn’t know he touched you too’. They did not discuss anything else about the matter or about what they had told or would tell the police.[161] D said they did not discuss the garage incident and denied that she told L to tell the police about the incident.[162]
[160] T195.
[161] T196.
[162] T196.
Evidence of Richard Elkhoury
The prosecution also called Richard Elkhoury, who is the elder brother of L and D. At the time of the trial he was aged forty years. Richard described the relationship between his and the Ricciardi family as being ‘fairly tight-knit’ and that a lot of the time they would be looked after by their aunt and uncle, as their parents would be working at their delicatessen.[163] Richard Elkhoury considered the accused to be like a ‘second father’ to him. In cross-examination, Richard Elkhoury agreed that he and his elder sister, Mae Elkhoury, were slightly removed from the younger cousins and sisters due to the age difference.[164]
[163] T204.
[164] T212.
Richard Elkhoury recalled going hunting and camping with the accused at Alawoona. They would sleep in Yahzee Kamleh’s ‘run-down farmhouse’ on air mattresses in sleeping bags on the floor of the living room.[165] At night time, they would go spotlighting. Richard Elkhoury recalled going on these trips with L and D, occasionally Mae Elkhoury, sometimes David Ricciardi but never with Melissa Ricciardi as she was too young.[166] Richard Elkhoury recalled that they would usually travel up in a beige Nissan van.[167]
[165] T206.
[166] T205.
[167] T207.
Richard also recalled going on other camping trips with the accused, to the Flinders Ranges. Specifically he was able to recall one trip taken with L, D and David Ricciardi and another taken with the accused and his friends. Richard Elkhoury said the trip taken with L, D and David Ricciardi would have been in the school holidays and was ‘quite a lengthy trip’, around four days.[168] Richard Elkhoury believed this occurred in around 1990-1991, just before he attained his driver’s licence.[169] He said they would also travel up to the Flinders Ranges in a beige Nissan van.[170] Richard Elkhoury said he was sure that the trip was taken in wintertime as he remembers the water running in the creek. When cross-examined on this, Richard Elkhoury rejected the suggestion that the trip was taken in the summertime and that it was hot during the day.[171] This was significant in Richard Elkhoury’s mind as he recalled the accused bathing in the creek nude, with the creek water running. He said he would never see his own father nude, so ‘it was quite a distinct episode’.[172] Richard Elkhoury recalled this as being ‘towards the end of the trip’. In cross-examination, it was suggested that the accused went into the creek with ‘Speedo-type underpants’ on. Richard Elkhoury accepted this but added that in the process of the accused’s bathing, the underwear was removed and his penis was visible.[173]
[168] T208.
[169] T206.
[170] T207.
[171] T215.
[172] T207.
[173] T218-T219.
In terms of the trip’s sleeping arrangements, Richard Elkhoury recalled sleeping in a tent in sleeping bags on blow-up mattresses. In cross-examination, Richard Elkhoury conceded that they all were able to fit in the tent comfortably but he could not recall if the sleeping arrangements remained the same for the entirety of the trip.[174] Richard Elkhoury agreed that the accused was a snorer but he could not recall if he snored at that point in time nor if he and the accused were placed at the end of the tent to sleep.[175] Richard Elkhoury could not recall if they stopped in Port Pirie to visit their Uncle Nabee. A number of propositions were put to Richard Elkhoury about the itinerary of the trip that he could not recall including staying at a caravan park with a pool, the younger children swimming in the pool and David Ricciardi being bitten by a bull ant.[176] He recalled that there was a fox in the camp that the accused shot at night. He could not recall the children being separated, with the exception of Richard Elkhoury going hunting by himself.[177]
[174] T216.
[175] T217.
[176] T216.
[177] T219, T223.
Richard Elkhoury ‘distinctively’ recalled the accused taking Mae Elkhoury, L, D and David Ricciardi to Brighton Beach in summer, predominantly on weekends and sometimes on weeknights, when he was around 10-12 years old. Melissa Ricciardi was not often there, and if she was, it was when Jamilah Ricciardi or Josephine Elkhoury were present.[178] Richard Elkhoury said they would take the rubber tube of a tyre to the beach, which was large, over a metre in diameter. He and his elder sister, Mae Elkhoury, did not really need the tyre. Richard and Mae Elkhoury would drag the tyre out with his younger sisters and sometimes David Ricciardi.[179] Richard Elkhoury was able to recall that ‘the accused would always drag the tyre out with us. The younger sisters couldn’t swim as confidently. I remember he would sidestroke out with it as we followed him.’[180] When asked in cross-examination if the tyre was used by Melissa Ricciardi in the shallows, he responded saying that the tyre was predominantly used in the deep – towards the end of Brighton Jetty and that it was indeed large and would take up the whole of the car’s boot space.[181]
[178] T209.
[179] T209-T210.
[180] T210.
[181] T221-T222.
In terms of schooling, Richard Elkhoury attended St Josephs until Year 2. Richard Elkhoury recalled his parents dropping him off to school at this time and they did not have the delicatessen.[182] Richard Elkhoury then told us he attended St Johns for Years 3, 4 and 5 and remembered being dropped off at school by his mother.[183] He said in the afternoon they would normally walk to the accused’s house or be picked up by him. On occasions his mother would pick him up from school. Richard Elkhoury said he attended Sacred Heart from Year 5 onwards. He believed his parents owned the delicatessen at this point.[184] He recalled catching the bus to school and sometimes home from school. At other times, Richard Elkhoury’s mother, Josephine Elkhoury would pick him up from school. Sometimes the accused or his aunt, Jamilah Ricciardi would pick him up from school. Richard Elkhoury said he drove himself to school from Year 11 onwards. He did not drive his siblings to school. In 1989, Richard Elkhoury was getting to school via the bus and would have left by the time D and L would make their way to school.[185]In cross-examination, Richard Elkhoury did not accept that his mother, Josephine Elkhoury took his younger sisters to school at this time as she would have been busy working at the delicatessen.[186]
[182] T211.
[183] T211.
[184] T211.
[185] T213.
[186] T214.
In cross-examination, Richard Elkhoury agreed with counsel that L did not have many friends at school and that she was teased a little at home because of her dark skin. He accepted that she had a speech impediment but did not agree that she was teased about this at home, she went to speech therapy.[187]
[187] T222.
Richard Elkhoury first became aware of the matter after the police had become involved.[188]
[188] T212.
Evidence of Josephine Elkhoury
The mother of the complainants, Josephine Elkhoury gave evidence for the prosecution. Mrs Elkhoury was born in Syria and moved to Australia in 1971. She and Raif Elkhoury were married in 1970 in Syria. I note that Mrs Elkhoury had some difficulties with the English language, and she told the court that she cannot read or write.
Mrs Elkhoury and her husband would work in the delicatessen from 6.00am to 9.00pm every day. In terms of the morning school routine, whilst the complainants were attending St Josephs, Mrs Elkhoury would take them to school. When asked about the morning drop off after L and D started attending St Johns, Mrs Elkhoury gave a number of different answers. Firstly, she said she would go to the delicatessen at around 5.45am and then return home to pick up the children and take them to school but that sometimes the accused or Jamilah Ricciardi would take them.[189] When cross-examined on this topic, Mrs Elkhoury said most of the time the accused would call to say he would take the complainants to school[190] but then agreed with what she said in her 2013 statement to police – that she would take the kids to school, that sometimes if she was busy the accused or her sister would take them, but that usually she took them to school.[191] Mrs Elkhoury said neither Richard Elkhoury nor Mae Elkhoury would be at home when she returned to pick up the complainants.[192]
[189] T231.
[190] T238.
[191] T240.
[192] T232.
When asked about the Elkhoury family’s relationship with the Ricciardi family, she told the court that they were very close until the police became involved with this matter.[193] Mrs Elkhoury’s husband Raif met the accused in 1978-1979. Mrs Elkhoury said she introduced the accused to her sister, Jamilah and they married in approximately 1982-1983. Mrs Elkhoury said that she spent time with the accused and Jamilah Ricciardi on weekends and after work. They would come to the delicatessen and have dinner there on occasions.[194] Mrs Elkhoury recalled that when the accused greeted the complainants he would kiss them on the cheek and it was considered a normal family greeting. Mrs Elkhoury told the court that the accused and Jamilah Ricciardi ‘always’ had marriage problems and that ‘many times’ the accused had to stay elsewhere, at Franco Costilli’s house. In cross-examination, she said she thought the second time he stayed there was in around 1999.[195] Mrs Elkhoury said she met Franc, but never went to his house.[196]
[193] T227-T228.
[194] T231.
[195] T241.
[196] T232-T233.
Mrs Elkhoury said the Ricciardi family owned a Nissan Fairlane, a Celica, a van and then a white Jeep,[197] which was purchased after the Elkhoury family moved to Mitcham.[198]
[197] T236.
[198] T243.
In relation to the after school routine, Mrs Elkhoury said that the accused would pick up the complainants from St Johns and St Joseph’s schools and take them to the Ricciardi home.[199] She told us that the accused and her sister, Jamilah Ricciardi would feed the children and take them back home at around 7.00pm-8.00pm. The complainants would already be at home by the time Mrs Elkhoury returned home from the delicatessen after 9.00pm.[200] In cross-examination, Mrs Elkhoury told the court that her sister Jamilah Ricciardi was studying at university during daytime hours while the complainants were attending at St Johns and that she would be at home with the children after school.[201]
[199] T228-T229.
[200] T229.
[201] T242.
Mrs Elkhoury recalled that during the school holidays, the children would spend time in the delicatessen and also at the Ricciardi house.[202] She said the accused took them hunting and camping, and could recall three or four camping trips. This would include Richard Elkhoury and the complainants but not Mae Elkhoury.[203] Mrs Elkhoury did not recall L or D discussing the trips when they returned.[204] Mrs Elkhoury also recalled the accused taking the children to the beach. On these occasions, normally the accused and Jamilah Ricciardi would pick them up from the delicatessen, but sometimes it was just the accused. Sometimes the accused would take L or D separately by himself.[205]
[202] T233.
[203] T233-T234.
[204] T242.
[205] T234.
Mrs Elkhoury said that L experienced learning difficulties and had to repeat Years 9 and 12.[206] She said L was picked on at school and would sometimes come home upset. She did not accept that she and Raif Elkhoury would call her a ‘mumbler’ or an ‘Aborigine’. She said she ‘used to always feel sorry for her’.[207]
[206] T235.
[207] T243.
Mrs Elkhoury told the court that she has four grandchildren. She said she cares for Mae Elkhoury’s children who are now aged 7 and 10 from Monday-Thursday and used to look after Richard Elkhoury’s children when they were younger. Mrs Elkhoury said that every time she looked after her grandchildren she used to take them to her sister’s house.[208]
[208] T235.
Evidence of Raif Elkhoury
The prosecution called the complainants’ father, Raif Elkhoury. At the time of the trial he was 74 years of age. Mr Elkhoury said that he and his wife bought the delicatessen in Croydon Park in 1989 and it was open every day of the year. He and Mrs Elkhoury would arrive at the delicatessen at 6.00am and it would close at 8.30pm.[209]
[209] T247.
Mr Elkhoury said that when L was born, he did not yet know the accused. He met the accused in 1980.[210] When the children attended St Johns, Mr Elkhoury would see the Ricciardi family most nights and the accused was not working at this time. He told the court Jamilah Ricciardi was ‘on call’ at a school teaching at this time.[211] Mr Elkhoury recalled that when the accused had marriage difficulties he stayed at Franco Costilli’s house. The accused would stay at this house for weeks.[212] Mr Elkhoury did not recall when the accused first stayed there – likely in the mid-1980s and the last time in the 1990s.[213] Mr Elkhoury recalled that the accused had a white Jeep Cherokee.[214]
[210] T248.
[211] T251.
[212] T252.
[213] T253.
[214] T253.
Mr Elkhoury recalled that the complainants went to St Johns at the same time. He said Mrs Elkhoury would take the complainants to St Johns. She would come home from the delicatessen to take them to school. Mr Elkhoury said that he never did this.[215] He said no one else would take them to school. In terms of the afternoon school routine, Mr Elkhoury said Jamilah Ricciardi and the accused would pick up the children from the school most of the time. They would take the children to the delicatessen (approx. 4.30pm-5.00pm) or to the Ricciardi home (where the witness and/or wife would pick them up at 3.30pm).[216]
[215] T249-T250.
[216] T250-T251.
In terms of other activities the children did with the accused, Mr Elkhoury recalled the accused taking them to Glenelg beach in the summertime, taking Richard Elkhoury , L and D shooting in the ‘North-East Ranges’.[217] Mr Elkhoury agreed he saw a video from this trip and remembered a creek in the video.
Overview of the defence case
[217] T252.
Evidence of Melissa Ricciardi
The accused called his daughter, Melissa Ricciardi who was 29 years old at the time of the trial. She was born in 1987. She is the cousin of the complainants. D is six years older than Melissa Ricciardi and L is eight years older.
In terms of her relationship with the Elkhoury family, Melissa Ricciardi said she spent a lot of time with them during the time she attended primary school and before this.[218] She described her cousins as being like ‘brothers and sisters’.[219] She would greet her aunt and uncle with a kiss on the cheek. This was the same for cousins and their greetings with her parents. The accused and Jamilah Ricciardi would greet their nephew/nieces with a kiss on the cheek.[220]
[218] T257.
[219] T257.
[220] T258.
Melissa Ricciardi started at St Johns in 1992.[221] In terms of the morning school routine, Melissa Ricciardi said her parents would help get D and L to school. She recalled the same routine happening and this routine only varied in 1990 when her grandfather visited from Syria and would join them on the school run.[222] Melissa Ricciardi said that the morning routine was rushed and that they were always running late. Jamilah Ricciardi would feed Melissa Ricciardi and her brother at home and then the accused drove them to the Elkhoury home.[223] Melissa Ricciardi was able to recall the route to the Elkhoury home in great detail but denied in cross-examination that this was something she researched prior to trial.[224]
[221] T264.
[222] T260.
[223] T259.
[224] T259, T288.
Melissa Ricciardi said her parents did not take D and L to school every day (only a couple of times per week). Melissa Ricciardi said she and her brother David Ricciardi were always there, they never had babysitters. In cross-examination, Melissa Ricciardi emphasized that her mother Jamilah Ricciardi was always there because she had to look after her.[225]
[225] T289.
Melissa Ricciardi recalled the accused driving a cream van with manual transmission, which only the accused could drive. They have never owned a green Jeep. The complainants would normally be waiting outside. The accused would be in the van with the engine running, as would Melissa Ricciardi and Jamilah Ricciardi. If D and L weren’t waiting outside David Ricciardi or Jamilah Ricciardi would get them. Melissa Ricciardi never saw the accused get out of the car.[226] After picking up the complainants, they would pick up a family friend by the name of Elaine Kamleh, but Melissa Ricciardi conceded in cross-examination that this would not be every time.[227] Melissa Ricciardi recalled the seating arrangements in the van in great detail:
QHow many seats were in this – was this a van.
AYes, so my dad was driving, I sat in the middle, the middle had a seatbelt and my mum was in the passenger, then at the back the seats were like this [indicates], so you had David Ricciardi, D on one side, L, Elaine on that side, you could fit three and three.[228]
[226] T21.
[227] T274.
[228] T276.
The accused would drop Melissa Ricciardi off at kindergarten after the school run. She went to Glandore Kindergarten and one other, the name of which she could not recall. She started kindergarten at age 3½ years. She believed she attended kindy three-four times a week and even if she didn’t go to kindy, she was in the car. If Melissa Ricciardi did not have kindergarten, and if her mother Jamilah had university, the accused and Melissa Ricciardi would drop her mother Jamilah Ricciardi off and then go home. If Jamilah Ricciardi did not have university they would go home.[229]
[229] T263.
Melissa Ricciardi stated that she has ‘fond’ memories from kindergarten and before this time and recounted some of these to the court. In cross-examination, she admitted she could not remember every day from 3½ – 5 years of age.[230]
[230] T276.
Melissa Ricciardi recalled a time in her life when her mother Jamilah Ricciardi was completing her university studies. She said her mother’s university studies were very flexible and she was not there every day. Melissa Ricciardi told us that her mother completed her practical education placement in 1999 and this was the first time she had ever worked.[231] In cross-examination, Melissa Ricciardi told the court that her mother could drive an automatic car and the first car she could remember he mother owning was a blue two-door Celica. In 1999, Jamilah bought the white Jeep Cherokee and in 2001 or 2002, the family had a white Suzuki soft top.[232]
[231] T264.
[232] T291.
In terms of the after school routine, Melissa Ricciardi said both of her parents would pick the children up from school and they would go to the delicatessen and have something to eat there. If they were too busy in the delicatessen they would go back home to their Lincoln Avenue residence.[233] Melissa Ricciardi recalled always being present with her mother for this time. She said that sometimes her aunt, Josephine Elkhoury or her cousins, Mae and Richard Elkhoury would pick up the complainants up from school. Mrs Elkhoury would pick the complainants up from the Ricciardi home at different times; sometimes it would be early and other times it might be after 9.00pm.[234]
[233] T265.
[234] T266.
Melissa Ricciardi said that during these hours, she, the accused, her mother, L and D would be at the house. From 1990-1991, Melissa Ricciardi’s grandfather was also staying the house. She said the cousins would help each other with their homework and watch television, they would always be doing things together and would notice if one was missing.[235] She said that there were never periods of time when L would be away from the group. When cross-examined on this she said the only time L would be away from the group would be if she went to the toilet.[236] In response to being asked whether she accepts that she wasn’t with her father 24 hours a day, 7 days a week during the period when she was at primary school and before, Melissa Ricciardi said, ‘there’s a chance, you know, but the majority of the time I was always with my dad’.[237] Melissa Ricciardi also said in cross-examination that her mother was ‘never’ away from the house between 3.00pm - 6.00pm.[238]
[235] T267.
[236] T279.
[237] T270.
[238] T279.
It was Melissa Ricciardi’s evidence that the garage closest to the house (Garage 1) was always locked and was considered out of bounds for the children as it contained dangerous items such as ammunition, chainsaws and drills.[239] Melissa Ricciardi said she had never seen the accused and L in the shed together.[240] She accepted in cross-examination that the accused’s guns were kept inside the house and once the regulations were enacted, they were placed into a ‘safe’ in the house.[241] Melissa Ricciardi also told the court that friends and family were also not allowed in their bedrooms,[242] as her parents did not want the carpets to be dirtied and ‘they just wanted those places out of bounds’. Melissa Ricciardi maintained that she had a positive memory of her parents setting these ground rules. However, she was unable to describe the specific memory.[243]
[239] T268.
[240] T268.
[241] T278.
[242] T268.
[243] T278.
Melissa Ricciardi said she never saw the accused draw and show a picture of a naked woman to herself or to any of the other children and stated that her father could not read or write.[244] She also stated that he did not take L anywhere by herself, nor would she ever come home to the Plympton house and find the accused and L there alone.[245]
[244] T269.
[245] T271.
In relation to the accused moving out of the family home to live with Franco Costilli, Melissa Ricciardi said that this only occurred on two occasions, in 1995 and 1999. In cross-examination, Melissa Ricciardi said that the time in 1995 was for around two weeks but in 1999 it was for about six months. Melissa Ricciardi recalled being in Year 7 at the time and being very upset.[246] Melissa Ricciardi said she had been to Franc’s house before.
[246] T282.
Melissa Ricciardi told the court that the accused always had a moustache and would never use aftershave. She said she never saw the accused kiss L or D on the lips nor did she ever hear him say ‘where’s my kiss?’ to either of them. She made a point of saying that her uncle Raif Elkhoury would say to her ‘where is my kiss and what colour is your underwear?’[247] Melissa Ricciardi recalled that her father was always at home but eventually conceded under cross-examination that he could have gone out on occasion.[248] She gave evidence that the accused has not worked since 1986[249] and had numerous medical issues including a bad back that prevented him from doing so.[250]
[247] T287.
[248] T290.
[249] T288.
[250] T292.
In relation to the various camping trips the accused took the children on, Melissa Ricciardi only recalled being taken on one trip near Loxton with L, D, David Ricciardi and her mother. However, as soon as they got there Jamilah Ricciardi wanted to leave and so they did.[251] Melissa Ricciardi said she never went to Alawoona, nor did she go on the Flinders Ranges trip. Melissa Ricciardi recalled Richard Elkhoury, D and L telling her about what happened on the trip. She recalled D always expressing positive views of the trip.[252] Melissa Ricciardi recalled specific, detailed memories of L and D speaking to her about the trip, including D saying her father was a hero. Melissa Ricciardi recalled being four to five years old when these conversations took place.[253] Melissa Ricciardi said she did not note any change in D’s interactions with the accused following the trip. [254]
[251] T269.
[252] T270.
[253] T284.
[254] T270.
Melissa Ricciardi gave evidence about the times the accused would take the children to the beach. She recalled David Ricciardi, D, L, the accused and her mother being present on these occasions.[255] Melissa Ricciardi recalled a small children’s bicycle tyre that she would use in the shallows while the accused watched her. She said the tyre was small, too small for David Ricciardi to be able to fit into, and that they ‘still have the tyre at home’.[256] Melissa Ricciardi did not recall seeing L and the accused going out into the deep water together.[257] Melissa Ricciardi said she was three and a half years old when she first started going to the beach and only recalled going to the beach with L and D three to four times.[258]
[255] T272.
[256] T286.
[257] T273
[258] T285.
In terms of Melissa Ricciardi’s preparation for trial, she denied that she had read any of the witness statements, and contended she only knew what the allegations were against her father from police officer Donna Sparks and Mr Morrison.
Evidence of David Ricciardi
The accused also called his son, David Ricciardi, brother of Melissa Ricciardi, to give evidence. He was 32 years old at the time of the trial. David Ricciardi recalled his family would see the Elkhoury family at least two to three times per week. He and his sister Melissa Ricciardi would greet their uncle and aunt with a kiss on the cheek. He said the accused and his mother would greet their nieces and nephew with a ‘hello’ or a kiss on the cheek.[259] David Ricciardi told the court he was very close with the complainants and considered them as siblings. He also said that they were a close group and he would have noticed if one of them was missing.[260]
[259] T296.
[260] T309.
David Ricciardi said he moved to St Johns in 1992. In terms of the morning school routine, David Ricciardi recalled having very ‘fond memories’ of this time. He said in cross-examination that his parents picked L and D up from 1990-1992 and that Mae and Richard Elkhoury took them to school from 1992 onwards.[261] David Ricciardi was able to describe the route from their house to the Elkhoury house in great detail but denied researching this prior to giving evidence.[262] David Ricciardi said that his parents would coordinate with Josephine and Raif Elkhoury to determine whether L and D needed to be picked up and when David Ricciardi was attending St Josephs, this would occur around two to three times per week. David Ricciardi recalled Josephine Elkhoury taking the children to school on the other days, depending on when Koula, their shop assistant was working at the delicatessen.[263] David Ricciardi said initially the blue Celica was used for these school runs and then a manual Nissan beige van, which could only be driven by the accused.[264] David Ricciardi said that they never owned a car with bench seating.[265] David Ricciardi said that more often than not, the accused would sleep in and they would be running late, ‘about 70% of the time’ the complainants would be waiting outside on the front porch.[266] The accused would remain in the car with the engine running and when asked in cross-examination, David Ricciardi said that he did not recall a time where the accused got out of the car to get his cousins,[267] but he or his mother would do this. David Ricciardi recalled Melissa Ricciardi being in the car for the ‘majority’ of the trips, around ‘60-70% of the time’[268] and sat in the middle seat. David Ricciardi also recalled his mother being present for the same amount of time as Melissa Ricciardi. She was a stay at home mother at this time and started studying in 1991. David Ricciardi recalled picking up Elaine Kamleh from her home at least once a week between late 1991 and early 1992.[269].
[261] T330.
[262] T331.
[263] T297.
[264] T298.
[265] T328.
[266] T298-299.
[267] T329.
[268] T329.
[269] T330.
In terms of the after school routine, Josephine Elkhoury would try to pick up her children, but if she was unable to she would contact the accused and Jamilah Ricciardi to pick them up.[270] David Ricciardi said his mother would only ever pick them up if she was with the accused because she did not drive the van. Jamilah Ricciardi was there about ‘60-70% of the time’ and would have been there to allow Melissa Ricciardi to see her cousins.[271] He recalled that sometimes Melissa Ricciardi would be with the accused in the car when he picked them up.[272] If the accused picked them up from school, they would return to the Ricciardi home unless it was arranged to go to the delicatessen and have dinner there.[273] In cross-examination, David Ricciardi estimated that they would go back to the Ricciardi home on three occasions per week.[274] David Ricciardi said his aunt Josephine Elkhoury would then pick up the children around 5.30pm or 6.30pm or 9.00pm. This would vary depending on how busy the delicatessen was and whether Koula was working. David Ricciardi said they did not walk home until 1996 on possibly four occasions and with his mother Jamilah Ricciardi only.[275] David Ricciardi recalled his grandfather being in Australia from late 1990 until 1991 for between three and six months.[276] After school, David Ricciardi’s mother was always at home to make dinner. L, D, Melissa Ricciardi and the accused would also be there and occasionally, Richard Elkhoury was there. His grandfather was also present during the time period of his visit.[277] In cross-examination, David Ricciardi said he could not recall a time when his mother was not there. He said if his mother ever needed anything from the shops, the accused would go.[278] He also said there was never a time when Jamilah Ricciardi needed to study in the afternoon at the university. If she needed to do extra study it would be at their home.[279]David Ricciardi recalled L having braces in approximately Year 4 for two to three years.[280]
[270] T301.
[271] T332, 334.
[272] T302.
[273] T302.
[274] T333.
[275] T332.
[276] T303.
[277] T304.
[278] T334.
[279] T344.
[280] T345.
David Ricciardi recalled dinner being served between 3.30pm and 4.00pm. They would then do their homework or play together. David Ricciardi said there were no periods when L and the accused were missing at the same time, but in cross-examination, he conceded that he could not say this with clarity.[281] David Ricciardi recalled that while the children were playing: ‘more often than not’ his mother Jamilah Ricciardi would either be cooking, washing the dishes, assisting with homework or out playing with the children.[282] The accused would ‘either be listening to reading or he’d be at the table with us or he’d be in the lounge room watching TV’.[283]David Ricciardi said ‘more often than not’ the accused was with the children while they were doing the afternoon activities.[284]
[281] T339.
[282] T309.
[283] T342.
[284] T342.
David Ricciardi said the accused never drew pictures of naked women and he never saw the accused show a naked picture to D.[285]
[285] T309.
In terms of the Ricciardi house, specifically the garage and bedrooms, David Ricciardi said the main garage, which was closest to the house, contained old construction material, a freezer, ammunition, etc. and ‘99% of the time’ this garage was locked because of the live ammunition in there.[286] David Ricciardi said this was not an area that he and the other children would visit. David Ricciardi said he never saw the accused and L in the shed.[287]David Ricciardi described the bedrooms as being out of bounds and in cross-examination said bedrooms are a place for sleep and that in Arabic culture, bedrooms are not a place of play. They also did not do their homework in there. David Ricciardi told the court that these rules were made known to the witness for as long as he can remember by both his mother and father. [288] David Ricciardi told his cousins these directives, and from what he saw, they also obeyed these rules. David Ricciardi described the accused as a ‘handy man’ and said he used to work on things in the shed. David Ricciardi said after school, it is highly unlikely that the accused spent time in the garage because they were doing other things. If the accused was mending something, it would be outside at the back table with the natural lighting.[289]
[286] T308.
[287] T309.
[288] T338-339.
[289] T342-343.
David Ricciardi gave evidence about two trips he and his family took to Alawoona, where they stayed on a family friend’s farm. David Ricciardi said the first occasion was in summer of 1990 and he went with the accused, his mother, sister Melissa, L, D, Richard and Mae Elkhoury. He said they did not stay overnight as the house was ‘festered with pigeons and rats’ and that his mother Jamilah Ricciardi was ‘freaking out’.[290] David Ricciardi said the second occasion was in winter of 1990, when he was around five years of age. This time he, the accused, L, D and Richard Elkhoury were present and they stayed for two days. He said they stayed in the lounge room that had a fireplace but no beds. They stayed on two air mattresses. David Ricciardi recalled that the accused and Richard Elkhoury slept in sleeping bags.[291] David Ricciardi told the court that on the first day they unpacked the car and then went shooting that night and on the second day they went quail shooting and then cleaned the game. David Ricciardi could not recall L and the accused being alone during the trip.[292] In cross-examination, David Ricciardi said he and the other children played outside together and ‘more often than not’, L was with them. He believed it highly unlikely that L and the accused would both be missing at the same time and said he would remember this because he was very close with L.[293]
[290] T310.
[291] T310.
[292] T311.
[293] T347.
David Ricciardi gave evidence about a trip he, the accused, Richard Elkhoury, L and D took to the Flinders Ranges in the summer of 1991-1992. They travelled there in the beige van and stayed for two nights.[294] David Ricciardi recalled that Richard Elkhoury had just acquired his learner’s permit and liked to use the new camcorder to take video footage. David Ricciardi recalled a time when D got cranky due to the heat and had an argument with her brother Richard Elkhoury. David Ricciardi observed that D’s interactions with the accused were the same after the trip as they were before. On the first day, David Ricciardi recalled that they left home and arrived at Port Pirie to see their Uncle Nabee. They saw his girlfriend who gave them ‘some preserves and some refreshments’. They eventually left as Uncle Nabee did not show up and they had to stay at Wipena Pound for one night.[295]David Ricciardi recalled that they had some snacks on the drive, specifically Burger Rings; ‘I remember those because they are my favourite’.[296] David Ricciardi said they arrived at the caravan park at about 6.00pm-7.00pm that night and spent most of the night putting up the tent which comfortably fit eight people. David Ricciardi also recalled being bitten by a bull ant and L and D consoling him.[297]
[294] T311.
[295] T312.
[296] T348.
[297] T313.
David Ricciardi was able to recall the sleeping arrangements in the tent: he would share an air mattress with D and L while Richard Elkhoury and the accused would be on the end as they snored, in their own sleeping bags. This arrangement did not really change for the duration of the trip but David Ricciardi did not recall if the accused slept in the tent on that first night.[298] David Ricciardi did not recall ever seeing L and the accused alone and together that night. He recalled that he, L and D went to bed around 8.30pm and ‘then Richard came in shortly after’. David Ricciardi said he saw D fall asleep next to him.[299]
[298] T315.
[299] T315.
On the second day, David Ricciardi recalled waking up the next morning and his cousins were in the same spots as the preceding night.[300] In cross-examination, David Ricciardi contended he had a ‘definite memory’ of this, however, cannot remember if the accused was in the tent.[301] David Ricciardi recalled that in the morning, they packed up and had a swim in the pool, and had a memory of his cousins being ‘quite jovial’ with him, throwing him into the water and throwing the accused’s hat into the water.[302] David Ricciardi said they later left and Richard Elkhoury drove hoping to make it to Arkaroola but ended up setting up camp at Blinman Gorge, arriving at about 3.00pm. They were set up next to a creek. There was pre-made fire pit which David Ricciardi said is why they chose the location.[303] David Ricciardi was able to describe the site in significant detail, e.g. the fire pit was 50m on the left of the tent, they used a tree to reinforce the tent, the creek was directly opposite and about 100m away etc.[304] David Ricciardi recalled that they slept in the tent that night as well. He had a ‘specific’ memory of himself, L, D and Richard Elkhoury sleeping in the tent. David Ricciardi said he became aware that the accused had stayed up all night as he could hear something approaching the tent. It turned out to have been a fox that the accused shot between 1.00am and 3.00am. David Ricciardi said they were again all in the same sleeping configuration, with the exception of the accused who was not there.[305]
[300] T315.
[301] T350, 354.
[302] T315.
[303] T316.
[304] T316.
[305] T353.
On the third day, David Ricciardi recalled waking up and talking about the fox that the accused had shot and how all the children considered him as a hero for doing so.[306] David Ricciardi said he did not hear the gunshot the night before.[307] He recalled waking up to the accused, Richard Elkhoury and D being outside the tent discussing the fox. When asked in cross-examination how he would know if D and Richard woke up in the same spot they fell asleep in, he responded, ‘I can tell from the fact it was such a tight sleeping arrangement being in between the girls in the bed, if one of them had stirred you would wake up and I know enough from my memory from when I did wake up nothing was stirred in terms of pillows, quilts, etc.’[308] David Ricciardi said this despite contending he did not wake up from the gunshot.
[306] T317.
[307] T352.
[308] T355.
David Ricciardi recalled that later that day, after the accused had a nap, they all swam in the creek. David Ricciardi recalled specifically that the accused was wearing denim shorts and denied that he ever took off his shorts or underwear. He also recalled L wearing a green t-shirt and board shorts.[309] When cross-examined on his memory, David Ricciardi stated he has a ‘photographic memory’, evident from test results over time.[310] David Ricciardi said the group decided to go home on this day as it was too hot, but they had originally planned to stay a lot longer.[311] In cross-examination, David Ricciardi said they returned to the Elkhoury house and watched the video of the camping trip and there was a conversation between family members ‘glorifying’ the accused’s actions in killing the fox.[312] There was also a conversation about David Ricciardi falling off a rock, and he was teased by the family and called a ‘klutz’.[313] David Ricciardi conceded he had seen the video more than once.
[309] T317.
[310] T359.
[311] T317.
[312] T357.
[313] T357.
In terms of weekends and school holidays, David Ricciardi agreed he was not with the accused 24 hours a day, 7 days a week and accepted that there would have been occasions when his father was alone. David Ricciardi said he was never aware of times where the accused would be alone with L. [314]
[314] T319.
David Ricciardi recalled two occasions when the accused did not live with the family. In 1995, the accused went to live with Franco Costilli and in 1999 the accused again went to live with Franc and then with another woman. He denied that the accused ever moved out between the years 1989-1993[315] and David Ricciardi said he never saw L at Franc’s house.[316] David Ricciardi said that the accused never owned or drove a green Jeep[317] and that he would wear aftershave regularly.[318]
[315] T361.
[316] T320.
[317] T321.
[318] T345.
David Ricciardi gave evidence about trips to the beach with his family. He said he would go to the beach with the accused, his mother Jamilah Ricciardi, Melissa Ricciardi, the complainants and sometimes Richard Elkhoury and Mae Elkhoury from 1990-1992.[319] He estimated that this occurred about five times, three of those times being without Richard and Mae Elkhoury. In cross-examination, David Ricciardi insisted that his mother Jamilah and Melissa Ricciardi were there on every occasion. Melissa Ricciardi was unable to swim so her mother would need to be present to look after her. The accused would be with David Ricciardi, L and D either swimming, playing in the water or on the sand.[320] David Ricciardi recalled that they would take a tyre to the beach for Melissa Ricciardi to learn how to swim.[321] He described it as an infant’s tyre about ‘45cm in diameter with a circumference to get in of probably 30cm in diameter’.[322] He said that the only person who could fit in the tyre was Melissa Ricciardi and neither he nor L would have been able to fit in it. He said if he were to lay on the tyre at age six, it would have capsized, and stated he was ‘quite skinny as a child’.[323] I note that David Ricciardi described himself as ‘a bit chubby’ when giving evidence about the Flinders Ranges trip, when he would have been roughly the same age. He recalled L and D being competent swimmers, and he and the complainants sometimes went into the deep water together. He could not recall a time when the accused and L went out into the deep water together,[324] but in cross-examination, accepted that it was possible.[325]
[319] T320.
[320] T362.
[321] T321.
[322] T321, 362.
[323] T362.
[324] T321.
[325] T364.
David Ricciardi also gave evidence about hunting with his father. He said their first hunting trip was to Alawoona but they did not actually go hunting. They then went hunting again at Alawoona and in the Flinders Ranges. David Ricciardi said he himself did not use a gun on these trips, however, sometimes shot targets with Richard Elkhoury.[326] David Ricciardi recalled that the accused would take two guns away. The guns and ammunition were kept in the vehicle. The ammunition was in a locked box in the boot with the firearms. David Ricciardi said that at home, this locked box was kept in a cupboard which was also locked in the garage. Richard Elkhoury acquired his firearms licence once he was sixteen and said prior to that he did not hunt.
[326] T324.
David Ricciardi denied speaking to immediate family members about this matter, and said he had only spoken with friends. He said he knew about the Flinders Ranges allegations from ‘bail docs’ but did not know about Alawoona or the allegations concerning the before school routine at the Elkhoury home.[327]
[327] T365.
Discussion – witnesses
I have already made some comments about the prosecution witnesses. I found the complainants to be truthful, honest witnesses. Generally, I found them to be reliable having regard to the fact that the relevant events were so long ago. Aspects of reliability arise when considering the individual counts.
Turning to the defence witnesses, I make these comments. Whilst Melissa Ricciardi was an intelligent, well presented witness, I found much of her evidence on important topics unbelievable. Much of her evidence was directed towards the question of whether the accused had the opportunity to engage in the sexual misconduct alleged. I found her to be too dogmatic and uncompromising with a preparedness to make only a few concessions. This was an unsatisfactory aspect of her evidence whereby she appeared to be deliberately restricting or denying any opportunity for the accused to offend against the complainants. By way of example, when D and L were playing at the accused’s house after school (waiting to be picked up by D and L’s parents), Melissa Ricciardi would insist that all the children were inseparable and always played together, such that there was no opportunity for the accused to offend. The shed (Garage 1) and bedrooms in the house were said to be out of bounds, again denying any opportunity for the accused to offend. Even if those were general rules, that is not to say that, over the years, there were not ample opportunities for the accused to offend. In any event, so-far-as the alleged incident in Garage 1, L was in there with the accused, not by herself or just with the other children.
Further in relation to Melissa Ricciardi, I found it to be unbelievable that she could remember, in great detail, events that occurred when she was just four or five years of age. I can understand that a young witness may remember traumatic or special events, but not mundane, routine, everyday events.
The evidence of David Ricciardi suffered from the same faults, again restricting or eliminating any opportunity for the accused to offend. He made few concessions. I did not find him to be a reliable witness.
Conclusions
I turn to consider the individual counts.
Count 1
This count related to a sexual touching and kissing of D by the accused in the kitchen of the home of D and L when the accused was picking them up to take them to school. I find that there were many such occasions that the accused would pick them up as described and that the accused would behave in such a fashion towards D. However, as discussed, D said that the accused then kissed and touched L in the manner described earlier but L does not say that she saw any offending against D or that D was present when acts were committed on her. Although I have found D to be honest and reliable, I am left in doubt about whether these particular events occurred as she described. In respect of this count, I am not able to find the objective facts proved.
Count 2
This is the occasion when a group of them went camping in the Flinders Ranges and one night D awoke to find her tracksuit and pants pulled down and the accused digitally penetrating her. I have no doubt that this happened and find the objective elements proved.
Count 3
This involves alleged offending against L in the form of six occasions that are said to amount to persistent sexual exploitation.
I am satisfied the incident occurred in Garage 1 as alleged. I am satisfied about L’s evidence in that regard, some of which is supported by D whose evidence I also accept. I am satisfied the remaining five occasions occurred as alleged. These occasions were at different places and occasions. I find the objective facts proved.
3
1