R v RNWH
[2024] SADC 75
•28 June 2024
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RNWH
[2024] SADC 75
Reasons for the Verdict of the Honourable Justice Kimber
28 June 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE
CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR CONSISTENT STATEMENTS
CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR INCONSISTENT STATEMENTS
This is a trial by Judge alone.
The accused is charged with four counts of Maintaining an Unlawful Sexual Relationship (Maintaining Counts) and nine counts of Indecent Assault (one in the alternative to a Maintaining count). The counts involve nine complainants. Two of the complainants are children of the accused, the balance are his step‑children. In addition to the alleged sexual acts committed by the accused, each complainant alleged that the accused engaged in a significant amount of non‑sexual violence which is not the subject of any count.
There is significant forensic disadvantage to the accused. The offences are alleged to have occurred in the 1970’s and 1980’s.
There are important issues with respect to the reliability of the evidence of complainants given, for example, the passage of time; prior inconsistent statements; and the risk of innocent contamination due to discussions within the family over many years and commencing in the 1980’s. Issues with respect to credibility also arise.
The accused did not give evidence but called evidence which contradicted some aspects of the evidence in the prosecution case.
The evidence establishes that the accused had a propensity to engage in sexual acts with children in his care notwithstanding the risk of detection.
The accused did not give evidence.
Verdicts:
1. Guilty of Counts 1, 6, 7, 9 and 13.
2. Not Guilty of Count 3 but guilty of Attempted Indecent Assault in the alternative.
3.Not Guilty of Counts 2, 4, 5 and 10–12 inclusive.
4.No verdict on Count 8 as it is an alternative to Count 7.
Evidence Act 1929 (SA) ss 34M, 34P and 34R, referred to.
R v Rippey [2022] SASCA 141; R v J, JA (2009) 105 SASR 563; Hughes v The Queen (2017) 263 CLR 338; Rodway v The Queen (1990) 169 CLR 515; R v Seigneur (2009) 103 SASR 2023; R v C, CA [2013] SASCFC 137, applied.
R v Marshall [2023] SASCA 105; R v Crafter [2019] SASCFC 25, discussed.
R v RNWH
[2024] SADC 75Criminal: Trial by Judge Alone
KIMBER J:
Introduction
Summary of verdicts
Background
A brief overview of the conduct the subject of each count
Count 1
Count 2
Counts 3 and 4
Count 5
Count 6
Count 7
Count 9
Counts 10, 11, 12
Count 13
Legal Directions
Elements
A single trial of nine complainants
General directions
Out of court statements
Forensic disadvantage to the accused
An overview of the submissions of the accused
Preliminary Matters
Acts of violence not the subject of any offence (non‑sexual violence)
DG
LH
JH
JP
Mr John P
CB
Mr Wayne P
JS
MW
RH
DA
SDH
Non‑sexual violence—discussion
Impermissible use—non‑sexual violence
Violence to SW
Alcohol
Opportunities for collusion or innocent contamination
Discussion within the family in the 1980’s
Events in 1997 and 1998
The 2015 investigation
Some of the evidence of the complainants about contact and discussion
Discussion in the 1980’s
Conclusion
DA–Count 13
Background
Count 13
A summary of the submissions of the accused with respect to DA
Further discussion
The use of the evidence of DA of Count 13 with other complainants
JS–Counts 7 and 8
The evidence of JS
The evidence of Mr Doug Hallett
Contact with police and discussion in the family
The evidence of JS about her memory
The evidence of Mr Doug Hallett (continued)
The evidence of SDH
A summary of some of the submissions of the accused about Counts 7 and 8
Further discussion
DG–Count 1
Background
Uncharged sexual conduct
Count 1
Use of DG’s evidence of uncharged sexual conduct
A summary of the submissions of the accused
Further discussion
MW–Count 9
Count 9
Some aspects of the evidence of RH
A summary of the submissions of the accused
Further discussion
Propensity and improbability
Propensity—section 34P(2)(a) and (b), and (3)
Improbability reasoning – section 34P(2)(a) and (3)
JS–Count 7
CB–Count 6
Count 6
Initial complaint
A summary of the submissions of the accused
Further discussion
LH–Count 2
Count 2
Some other aspects of the evidence of LH
Inconsistent statements
Further discussion
JH–Counts 3 and 4
Count 3
Count 4
Other conduct of a possibly indecent nature
Inconsistent statements
Further discussion
Attempted Indecent Assault
JP–Count 5
Count 5
Other aspects of JP’s evidence
A summary of the submissions of the accused
Further discussion
RH–Counts 10–12
Counts 10–12 inclusive
A summary of the submissions of the accused
Further discussion
Conclusion—Counts 10 and 11
Conclusion
Introduction
This is a trial by Judge alone.
The accused is charged with the following offences:
First Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RNWH between the 23rd day of December 1976 and the 25th day of December 1976 at Kybunga, indecently assaulted DG.
Second Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RNWH between the 25th day of August 1973 and the 24th day of February 1982 at Hallett, Hoyleton and other places in the State of South Australia, being in a position of authority in relation to LH, a person under the age of 18 years, maintained an unlawful sexual relationship with LH by engaging in two or more unlawful sexual acts with or towards her, namely:
(a) Touching her vagina and genital area on more than one occasion;
(b) Inserting a finger into her vagina on more than one occasion; and
(c) Masturbating in her presence on more than one occasion.
Third Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RNWH on the 31st day of August 1978 at Hoyleton, indecently assaulted JH.
Fourth Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
RNWH between the 31st day of August 1978 and the 30th day of September at Hoyleton or another place, indecently assaulted JH.
Fifth Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
RNWH between the 1st day of July 1983 and the 31st day of July 1983 at Snowtown, indecently assaulted JP.
Sixth Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RNWH between the 2nd day of January 1974 and the 2nd day of January 1987 at Snowtown and other places in the State of South Australia, being in a position of authority in relation to CB, a person under the age of 18 years, maintained an unlawful sexual relationship with CB by engaging in two or more unlawful sexual acts with or towards her, namely:
(a) Touching her vagina and genital area on more than one occasion;
(b) Inserting his fingers into her vagina on more than one occasion;
(c) Performing an act of cunnilingus upon her on more than one occasion; and
(d) Touching her breasts on more than one occasion.
Seventh Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Ibid).
Particulars of Offence
RNWH between the 1st day of March 1980 and the 1st day of March 1988 at Snowtown and other places in the State of South Australia, being in a position of authority in relation to JS, a person under the age of 18 years, maintained an unlawful sexual relationship with JS by engaging in two or more unlawful sexual acts with or towards her, namely:
(a) Touching her vagina and genital area on more than one occasion;
(b) Touching her breasts and chest area on more than one occasion;
(c) Inserting a finger into her vagina on more than one occasion; and
(d) Performing an act of cunnilingus upon her on more than one occasion.
Eighth Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RNWH between the 1st day of December 1985 and the 31st day of December 1987 at Snowtown or other places in the State of South Australia, indecently assaulted JS.
Ninth Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RNWH between the 13th day of November 1980 and the 31st day of December 1989 at Snowtown and other places in the State of South Australia, being in a position of authority in relation to MW, a person under the age of 18 years, maintained an unlawful sexual relationship with MW by engaging in two or more unlawful sexual acts with or towards her, namely:
(a) Touching her vagina and genital area on more than one occasion; and
(b) Performing an act of cunnilingus upon her.
Tenth Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RNWH between the 19th day of September 1981 and the 18th day of September 1984 at Snowtown, indecently assaulted RH.
Eleventh Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
RNWH between the 19th day of September 1985 and the 18th day of September 1987 at Snowtown, indecently assaulted RH.
Twelfth Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
RNWH between the 19th day of September 1987 and the 18th day of September 1989 at Snowtown, indecently assaulted RH.
Thirteenth Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
RNWH between the 19th day of September 1976 and the 12th day of December 1979 at Hallett, indecently assaulted DA.
Summary of verdicts
These are my reasons for finding the accused guilty of Counts 1, 6, 7, 9 and 13; finding the accused not guilty of Count 3 but guilty of Attempted Indecent Assault with respect to that count; not returning a verdict on Count 8; and finding the accused not guilty of Counts 2, 4, 5 and 10–12 inclusive.
Background
The initials of the accused are RNWH. The complainant in Counts 10–12 has similar initials. To avoid confusion in this judgment, the complainant in Counts 10–12 will be referred to as RH and I will not refer to the accused using his initials.
The accused was born on 11 January 1945 and was in a relationship with SW at the time of the alleged offending. At the time the accused and SW commenced a relationship, SW had eight children from a previous relationship with IW. IW had passed away approximately six to 12 months before the relationship between the accused and SW commenced. Seven of these children are complainants in this matter. At the time the accused and SW commenced their relationship, the accused had at least four children from previous relationships. One of those children, DA, is a complainant in this matter. For clarity, I set out the above and some other information in a family tree below:
After the death of IW, SW and her children moved into a house in the northern suburbs of Adelaide. It was after that move that SW and the accused met. They formed a relationship and the accused commenced living with SW and the children born at that time. SW was pregnant with, or had just given birth to, MW at the time the accused moved in. I note there may be uncertainty around the paternity of MW. The accused’s relationship with SW is likely to have commenced sometime during 1973.
The accused’s four children did not move to SW’s home when the accused commenced living with her.
The accused and SW lived at many addresses in South Australia and Victoria. Various of the children lived with them during the period in which the charged conduct is alleged to have occurred. For example, DA and SDH lived with them for certain periods of time and some children left the home when they were about 16 or 17 years of age. The majority of the places the accused and SW lived were in country areas. The accused worked on at least one piggery as a farm hand. For a time, SW and the accused lived in, or near, Kaniva in Victoria. The towns the accused, SW and the various children lived in or near in South Australia included Naracoorte, Kybunga, Hallett, Hoyleton, Gum Creek, Farrell Flat and Snowtown. Naracoorte is in the south‑east of South Australia and Kaniva is in the same area, but over the border. It is likely that SW and her children born at that time lived in the south‑east before moving to the Mid North of South Australia. The towns in the Mid North were at least the six towns mentioned above, other than Naracoorte and Kaniva.
There are agreed facts with respect to schools attended by complainants.[1] The evidence from school records is to the effect that the accused and any complainants who had not left home were living in or near Hallett by May 1975; Gum Creek by May 1979; Farrell Flat by February 1981; and Snowtown by November 1981. Given the passage of time, the school records are more reliable evidence of where the accused was living than the memory of any witness.
[1] Exhibit P4, Agreed Facts II, Agreed Facts 7–15.
A brief overview of the conduct the subject of each count
Of the nine complainants, the accused is the father of DA and RH. The accused can be referred to as the step‑father of the remaining complainants.
Count 1
In Count 1 it is alleged that the accused indecently assaulted DG in 1976. DG’s evidence was that this occurred at the family home in Kybunga on Christmas Eve.[2] DG says she was 14 years old.[3] The accused was drunk.[4] The accused complimented DG on a Christmas card she had written and said ‘Let me kiss you’.[5] The accused then said ‘Let a man kiss you.’ DG said the accused pushed her up against the wall, tried to kiss her and placed his hand on her knickers, pushing his fingers in towards her vagina.[6] The act the subject of Count 1 is the touching of DG’s vagina.
Count 2
[2] T111–2.
[3] T112; T147–8.
[4] T113.
[5] T111.
[6] T114–T115.
In Count 2 it is alleged that the accused maintained an unlawful sexual relationship with LH between 1973 and 1982.[7] LH’s evidence was that she was around nine‑and‑a‑half years old when she first met the accused[8] and that his unlawful sexual acts began shortly after he moved in.[9] LH says the accused often stood in the doorway of the bedroom she shared with her sisters and masturbated.[10] It happened, she said, ‘numerous times over the years’.[11] LH described ‘many’ occasions on which the accused entered the room and knelt down next to one or other of her sisters’ beds.[12] LH also said that, on ‘numerous occasions’, the accused leant over her while she lay in bed, pulled her nightie up and her underwear down and penetrated her vagina with his fingers.[13]
Counts 3 and 4
[7] The date range commences when LH turned nine-and-a-half and ends the day before her 18th birthday.
[8] T174.11. Elsewhere in her evidence Ms Hallett implied that the accused first moved in when she was about eight‑and‑a‑half or nine: T189.34–35.
[9] T201.
[10] T193.
[11] T194.16.
[12] T194–T196.
[13] T197–T199.
In Counts 3 and 4 it is alleged the accused indecently assaulted JH on two separate occasions in 1978. The first, Count 3, took place, on JH’s evidence, the day after her brother, SJH, was born; 30 August 1978.[14] JH was several months shy of her 13th birthday.[15] JH said the accused asked her to sit on the bed.[16] He then ‘fondled’ her breasts and ran his fingers inside her knicker line.[17] Having opened on the indecent assault consisting of touching JH’s breasts and vagina,[18] the prosecution elected in its closing to rely on the act of touching JH’s vagina as the act to which Count 3 relates.
[14] T265.34–35; Exhibit P1, Agreed Facts I, Agreed Fact 13.
[15] See Exhibit P1, Agreed Facts I, Agreed Fact 7.
[16] T266.22.
[17] T266–T267.
[18] T10.12–19.
Count 4, on JH’s evidence, took place a few days, or a couple of weeks, after the events of Count 3.[19] JH and her brother were ‘mucking around’ in the back of the car.[20] JH says that the accused reached back and touched her vagina.[21]
Count 5
[19] T269.20–22.
[20] T270.5–6.
[21] T270–T271.
In Count 5 it is alleged that the accused indecently assaulted JP on the occasion of her 15th or 16th birthday.
JP says that she drank alcohol and ‘passed out’.[22] She says she woke to the accused having inserted his fingers into her vagina.[23]
Count 6
[22] T375–T376.
[23] T377.
In Count 6 it is alleged that the accused maintained an unlawful sexual relationship with CB between about her fifth and 18th birthdays. CB says that from the age of about five, the accused entered her bedroom three to four nights a week.[24] CB says he manipulated her clothing so that he could place his fingers in her vagina.[25] The accused also placed his hands under her top and touched her breasts.[26] CB also described the accused, on one occasion when she was 14 or 15 years of age,[27] licking her vagina.[28]
Count 7
[24] T436.
[25] T440; T444.
[26] Ibid.
[27] T448.
[28] T440; T444.
In Count 7 it is alleged that the accused maintained an unlawful sexual relationship with JS between about her ninth and 17th birthdays. JS says that the day after her ninth birthday, the accused entered her bedroom and touched her breasts and vagina.[29] JS said that the accused licked her vagina.[30] JS said that there were other occasions on which the accused entered her bedroom and touched her vagina.[31]
[29] T562–T563.
[30] T564–T565.
[31] T574.
JS gave evidence that there were also two occasions on which the accused was caught by Mr Doug Hallett sexually assaulting her. Mr Doug Hallett was, at that time, the partner of her eldest sister. On one of those occasions, JS says Mr Doug Hallett was yelling at the accused.[32] JS says she saw Mr Doug Hallett grab the accused,[33] and there was a ‘kerfuffle’.[34] On the other occasion, JS said she passed out and woke to the accused licking her vagina.[35] Again, JS said Mr Doug Hallett walked in and that she later heard yelling and fighting.[36]
[32] T572.2–3.
[33] T572.32.
[34] T571.28.
[35] T575–T576.
[36] Ibid.
Mr Doug Hallett gave evidence of seeing a sexual assault of JS on only one occasion.[37] Mr Doug Hallett says he entered a room at night and saw the accused ‘with his fingers up [JS’s] vagina.’[38] Mr Doug Hallett said that JS was 14 or 15 years old at the time.[39] The conduct allegedly observed by Mr Doug Hallett is one of the sexual acts particularised within Count 7. It is also the act the subject of Count 8 which is an alternative to Count 7.
Count 9
[37] T713–T714.
[38] T724.1.
[39] T716.
In Count 9 it is alleged that the accused maintained an unlawful sexual relationship with MW between about her seventh birthday and the age of 16. MW says the accused entered her bedroom at night and touched her vagina more than she could count.[40] MW said her mother caught the accused on one occasion.[41] MW alleges the accused also performed oral sex on her when she was around 13 years old.[42]
Counts 10, 11, 12
[40] T618–T620.
[41] T624.
[42] T621.
In Counts 10, 11 and 12 it is alleged the accused indecently assaulted RH on three separate occasions. RH described the first of these as taking place when he was five or six.[43] RH said the accused inserted his finger into his ‘arse’ (Count 10).[44] RH said he was nine years old when the accused next sexually assaulted him.[45] Again, RH was in one of his sisters’ bedrooms when the accused approached and digitally penetrated his anus (Count 11).[46] RH said that when he was 11, the accused came into his bedroom late at night, and pulled down his pants,[47] but he jumped out of bed before anything else happened (Count 12).[48] The prosecution opened on the basis that the accused had penetrated RH’s anus on that occasion, but RH did not give that evidence. The prosecution submitted in closing that the act the subject of Count 12 was the pulling down of the pants of RH.[49]
Count 13
[43] T667.
[44] Ibid.
[45] T670–1.
[46] T671.
[47] T674.
[48] T674–5.
[49] T1012–T1013.
In Count 13 it is alleged that the accused indecently assaulted his natural daughter, DA. DA did not live with the accused and SW on a consistent basis nor for as long as other complainants. DA says that she lived with the accused, SW and others during two separate periods[50] starting, she said, at the age of about 11 or 12 in 1976.[51] DA says the accused pulled her onto his lap and placed his hand up her top and fondled her left breast and nipple.[52]
Legal Directions
[50] T734.
[51] T795; T732.
[52] T739.
Elements
Before the accused can be found guilty of a count, every element of that count must be established beyond a reasonable doubt.
Counts 1, 3–5, 8, and 10–13 are counts of Indecent Assault. For the purposes of this trial, those counts have the following elements:
1.The act the subject of the count was committed;
2.The act involved a deliberate application of force; and
3.The act was indecent (i.e. – had a sexual connotation).
Each act the subject of a count is alleged to have taken place before the relevant complainant was 17 years of age. Issues of consent are irrelevant.
In Count 4, there are two issues. First, whether the act was committed. Second, if it was, whether it was indecent. In the remaining counts of Indecent Assault, the only real issue is whether the act the subject of the charge was committed. If the relevant act was committed, there is no dispute the other elements will be established.
Counts 2, 6, 7 and 9 are counts of Maintaining an Unlawful Sexual Relationship (Maintaining Count). For the purposes of this trial, that offence has the following elements:
1.The accused was over the age of 18 years at the time of two or more of the unlawful sexual acts particularised;
2.The complainant was under the age of 17 years at the time of two or more of the unlawful sexual acts particularised;
3.The accused knowingly maintained a relationship with the complainant; and
4.While the above relationship was being knowingly maintained, the accused intentionally committed two or more of the unlawful sexual acts particularised in the count with, or towards, the complainant.
In this case, in each count, if the fourth element is established in a count, the first two will also be established. As to the third element in each count, there is no dispute the accused was maintaining a relationship with each complainant. The accused was the sole adult male living in the house at the time of any alleged unlawful sexual act within the particulars of the respective counts. At all relevant times, the relevant complainant was living in the same house as the accused and the accused was in the role of step‑father.
In each Maintaining Count, the real issue is the fourth element. With respect to the fourth element, and in what is an important distinction with the counts of Indecent Assault, s 50(4) of the Criminal Law Consolidation Act 1935 (SA) provides:
50—Sexual abuse of a child
(4)However—
(a) the prosecution is not required to allege the particulars of any unlawful sexual. act that would be necessary if the act were charged as a separate offence; and
(b) the trier of fact is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, but must be satisfied as to the general nature or character of those acts…
A single trial of nine complainants
There was no application that any count be tried separately from another. Each count must be given separate consideration. I will explain later if I have used the evidence of one count with respect to another and, if so, how.
General directions
It is not necessary for me to direct myself in the same way a jury would be directed.
The burden of proof is always on the prosecution. I am to consider the whole of the evidence relevant to a count in determining whether that count is proven beyond a reasonable doubt. An aspect of this is that I must consider the combined significance of any inconsistencies and all other criticisms of a witness’s evidence in evaluating the evidence of that witness. I have done this in evaluating all the evidence in this case, including the evidence of all complainants, but I will not make further express reference to having done so.
The accused did not give evidence. I have not drawn any inference adverse to him because he exercised that right. The exercise of the right to silence is not evidence. It does not alter the prosecution’s obligation to prove each element of a count beyond a reasonable doubt. There may be many reasons why the accused exercised his right to silence, and it is not appropriate to speculate.
The accused called one witness and some agreed facts were tendered during his case. By calling evidence, and in making submissions about how the evidence should be viewed, the accused did not assume any burden of proof.
Out of court statements
The only evidence said to be an initial complaint[53] is in relation to the complainant CB. I will discuss that evidence later.
[53] Evidence Act 1929 (SA) s 34M.
Putting that aside, there is evidence of what witnesses said outside of court and before giving evidence. No evidence of anything said out of court is evidence of the truth of what was said. That a witness might have said something more than once does not make anything they have said more likely to be truthful or reliable.
Putting aside what is said to be an initial complaint by CB, the use of evidence of what was said out of court is two‑fold. First, what is said out of court may be a prior inconsistent statement by a witness. If a witness has made a prior inconsistent statement, that must be considered when evaluating their credibility and reliability. Second, what complainants said, and knew, before giving evidence is relevant to what a complainant might have known about the allegations of another complainant (i.e. – it is relevant to the possibilities of collusion and innocent contamination).
Forensic disadvantage to the accused
Witnesses gave evidence about events alleged to have occurred sometimes as long as almost 50 years ago. The key events about which each complainant gave evidence are alleged to have occurred when they were children. The passage of time between the alleged events the subject of the offences, and the circumstances surrounding those alleged events, has resulted in significant forensic disadvantage to the accused. I have taken that disadvantage into account in scrutinising the evidence.[54]
[54] Evidence Act 1929 (SA) s 34CB.
There is significant forensic disadvantage to the accused in more than one way. The passage of time may have adversely impacted upon the accused’s memory of relevant events and his ability to instruct his solicitor and counsel. It may have impacted upon his ability to test the evidence. Had the trial been closer to the events in question, the accused may have been able to give evidence, or lead evidence from others, about where he was at a relevant time, about who might have been with him or which might have been inconsistent with the prosecution case in other ways. Evidence of this type might have come, for example, from the accused himself, an employer, a witness no longer available or a business record. In terms of business records, the obvious examples relevant in this case are work records, housing records, school records, police records, a record of a call(s) to Lifeline, and the records of other agencies which might have had contact with one or more complainant.
As for witnesses no longer available, the father of many complainants passed away in the early 1970’s. There is evidence he sexually assaulted as many as two complainants, being DG and LH.[55] SW was living in the various houses at all relevant times where important events are said to have occurred but has passed away. On the prosecution case, she even witnessed some relevant behaviour and discussed it with her children. During the evidence, there was a suggestion that another partner of SW, Mr Dennis G (Mr G), might have sexually assaulted a complainant. One child who lived in different relevant houses, SJH, has passed away. DG gave evidence of an aunt and uncle attributing conduct to IW.[56] There was no evidence about whether those two family members were still alive.
[55] T105, T152 (DG); T222 (LH).
[56] T117.
There is evidence that police may have had contact with at least JS, SW and possibly the accused, in approximately 1986 or 1987 shortly after an incident said to involve JS and the accused. If there was contact with police as a result of something alleged to have taken place with JS, there is no record, and the identity of any police officer(s) involved may not be known. There was a police investigation in about 1998 that did not end up proceeding to a trial. Records may now be incomplete or lost altogether.
The passage of time may also have impacted adversely upon the memory of witnesses in ways which have caused a significant forensic disadvantage to the accused. A witness may have become convinced that a particular event occurred, even though it did not. A witness may have forgotten something of significance to the case of the accused. An honest and compelling witness can still be unreliable. After so many years, unreliability can be difficult to test and expose. The risk of assumption and error by witnesses is real.
An overview of the submissions of the accused
The accused submits that no count has been proven beyond a reasonable doubt.
The primary submission of the accused is with respect to reliability. With some complainants and the evidence the subject of counts with respect to them, as opposed to evidence about other matters, the submissions of the accused might be understood as being limited to reliability alone. Nevertheless, for all complainants, I have considered both credibility and reliability.
The accused submits the complainants are at least unreliable about what happened and to whom. With respect to reliability, the accused contends that there is a possibility of innocent contamination of the complainants’ evidence in circumstances where: the alleged conduct occurred some time ago; the complainants endured a disordered and tormented childhood; there are prior inconsistent statements; there has been passage of time; and taking into account the vicissitudes of life.
The accused also points to evidence with respect to one or more complainants of: alcohol consumption at the relevant times; evidence of poor mental health; head injury; post-traumatic stress disorder (PTSD); and flashbacks among other associated possible impairments to memory.
With respect to the risk of innocent contamination, the accused directs attention to the possibility of the complainants confusing alleged sexual offending committed against one or more of the complainants by former partners of SW being IW and Mr G. The accused also directs attention to the occurrence of meetings and/or discussions between family members in relation to alleged offending conduct. In particular, at least, discussions which occurred in about the mid‑1980’s after alleged conduct towards JS; a meeting involving some siblings during the investigation in about 1998 at DG’s house or shearing shed; and other occasions on which complainants have spoken to each other about the alleged conduct of the accused and/or the police investigations.
In addition to the impact on the reliability and credibility of the evidence of the complainants, the accused submits the inability to exclude innocent contamination impacts on the way in which the Court should approach the uses of discreditable conduct evidence. In relation to improbability reasoning, the accused contends that where innocent contamination is not excluded, this use is not open because where that possibility remains, it is not improbable that each complainant would have independently falsified their account to the level of detail provided. It is submitted that, in fact, it is the sort of similarities one might expect in a case of independent innocent contamination by a child in circumstances of the household of the accused.
In relation to propensity reasoning, the accused submits there is no complainant whose account is sufficiently credible and reliable so as to find their alleged count(s) proved beyond a reasonable doubt and thereby establish a propensity. In addition, even if a propensity was proven, it is said that propensity is not probative, or logically capable, of addressing what might have been done and to whom.
Preliminary Matters
Acts of violence not the subject of any offence (non‑sexual violence)
All complainants gave evidence that the accused was a violent man. They gave evidence of violence to them and/or others. Some of the evidence is of violence in the course of disciplining children. To the extent the evidence was of violence to children in the context of discipline, there is no doubt that, even accounting for different standards which might have applied to parental discipline decades ago, if the evidence is accepted, the conduct went well beyond what might have been considered appropriate at that time. There is no doubt that the evidence was of discreditable conduct. There was no objection to the evidence being led. In addition to violent conduct towards children, there is also evidence of violence towards SW. That evidence was also of discreditable conduct.
It is convenient to provide a summary at this point of the evidence of each relevant witness about non‑sexual violence. There was no dispute that this evidence was admissible pursuant to s 34P(2)(a) of the Evidence Act 1929 (SA).[57]
DG
[57] In footnote [362], I discuss whether s 34P(2)(a) of the Evidence Act 1929 (SA) as amended following the Statutes Amendment Act (Child Sexual Abuse) Act 2021 (SA) applies to this trial. In my view, the Act as amended applies. However, whether I am right about that is not a matter of importance in this trial. In this trial, all discreditable conduct evidence with a permissible use has a probative value which substantially outweighs any prejudicial effect it may have on the accused and so satisfies, at least, the test in s 34P(2)(a) before it was amended. As set out in footnote [362] although the Act has been amended, for the avoidance of doubt, and error, I have decided to apply the Act before it was amended. For discreditable conduct evidence to be admissible, I have required that, at least, it must have a probative value that ‘substantially’ outweighs any prejudicial effect it may have on the accused.
DG said the accused would be violent, but when sober, he was pleasant.[58] DG said the accused became the disciplinarian within the house. She said the accused would use a belt, jug cord and his boot.[59] DG referred to a specific occasion on which the accused became angry about something happening with cheese. She described it as her ‘most vivid memory’.[60] She said she was about 12 years of age which would place the event in about 1974 and not long after the accused began living with SW.[61]
[58] T96.
[59] T92–T93.
[60] T93.20–27.
[61] T93.29.
DG said:[62]
AThe most vivid memory is at the first dairy where I said it was just over in Victoria. Yeah, the most vivid memory is somebody had taken a piece of cheese from the fridge apparently. We all got pulled out of bed, because we were all in bed asleep. We all got pulled out of bed and asked who stole the cheese and then when none of us knew who took the cheese, we all got a hiding for it.
QAbout how old were you.
AI would have been maybe 12.
[62] T93.20–29.
Other than herself, she named SDH, LH, JH, JP, CB and JS as present.[63] She said at least some of the children present were ‘whipped’.[64]
[63] T93.35–38.
[64] T95.
DG said she was struck with the electrical cord on ‘numerous occasions’.[65] When asked what type of things would result in a beating, she said:[66]
AIt was random. It was pretty well walking on egg shells. Sometimes it would be because we didn’t clean up enough. We didn’t do the dishes properly or we back chatted or, you know, yeah, you know if mum wanted us to do something and it wasn’t done properly then, yeah, we would get it.
[65] T98.
[66] T98.17–22.
DG gave evidence about incidents involving a firearm. She said this occurred at Hallett. She said:[67]
AThere was a weapon involved at Hallett, it was a gun. He never physically touched us with the gun but he would line us up and I recall on more than one occasion us lining up and he would point the gun at each of our foreheads and he would say ‘Who should I shoot today?’. We were just be crying and, you know, mum would, mum would say ‘Don’t touch the children, just shoot me’. We would be like ‘No no, don’t shoot mum’. I don’t think he would ever do that but it was just - it was an intimidation thing and that would happen several, several times. I recall it definitely more than twice where we would be lined up with the gun. On one evening he ended up smashing the gun and I was there when he smashed the gun because he said, you know, mum said to him ‘What are you doing?’, because he did use the gun to go spotlighting, we used to go out and get rabbits and stuff and he said ‘I’m scared I’m going to follow through’ so he smashed the gun.
[67] T100.8–25.
DG said that on the occasion at Hallett, present were all of the children of SW, other than SDH.[68]
[68] T101.
DG also told me the accused used to ‘beat up’ SW. She said it was ‘probably a couple of times a week’.[69]
LH
[69] T103–T104.
LH described the accused’s conduct as:[70]
A…quite brutal, as it was whipped with a jug cord, a belt, kicked, kicked up the arse, but it would be done repeatedly, one at a time.
[70] T177.26–28.
She said the children were pretty well behaved, she could not think of any reason the conduct was deserved.[71]
[71] T178.3–10.
LH said it occurred on a regular basis and was always worse when there was drink involved.[72] She said it occurred at every house at which she lived and she saw her siblings being ‘disciplined’.[73] LH gave evidence about getting out of bed at night to be ‘disciplined’. She gave evidence about an incident over damage to a ‘cot mattress’.[74] She said those present were struck with a ‘jug cord’.[75]
[72] T178.15–20.
[73] T181.
[74] Ibid.
[75] T182.
LH also gave evidence about an incident involving cheese. She said those present were gotten out of bed and ‘lined up against the wall’.[76] She said the accused had a firearm and pressed it to the head of those in the line. As to where this occurred, she said:[77]
AI’m not sure if it was - there was a place at Hoyleton or Hallett, I can’t exactly say what house that was.
[76] T183.
[77] T183.34–35.
LH said SDH, DG, JH, JP, CB and JS were present with her. She said: ‘I was terrified but I don’t recall seeing [RH and SJH there and MW] there at the time’.[78] LH said this was not the only time she saw the firearm, but this was the ‘worst time’ and it had not been held to the head on any other occasion.[79]
[78] T184.27–28.
[79] T185–T186.
LH also said she had been struck to the face more than once.[80] LH said there was a ‘lot of physical violence towards my mother’, ‘probably once a week’.[81]
JH
[80] T188.
[81] T187.
JH said the accused would get ‘really scary’ when he had been drinking.[82] She said it started out with belts, or kicking up the backside and the accused used a ‘jug cord’.[83] She said she was struck to the head. JH said this ‘discipline’ happened at every house.[84] She said she had been ‘hit a lot’ with the jug cord.[85]
[82] T262.
[83] T263.
[84] T265.
[85] T263.
JH also told me about an incident involving cheese. She said she thought she was seven years of age which would place the event early in the relationship between the accused and SW.[86] JH said:[87]
[86] T264.
[87] T263.22–T264.18.
AThere was one time, when they got home from the hotel at, I’m trying to think of the house we were at, somebody had eaten some cheese and we were lined up to find out and nobody said anything. [SDH and DG and LH] were the ones that were called the bigs [sic] ones at the time, we were sort of kind of grouped up with the big ones, middle ones and little ones, and they were the ones that were in - we all got into trouble but, yeah, I remember them being lined up against the posts of the house (INDICATES), and [SDH] really copped it that night.
QDid you see [SDH] cop it.
AYes.
QCan you describe to his Honour what you saw.
AGoing around and he’d hold her by the arm and going around in circles, and he was kicking her. He had the cord -
QYou were talking about the cord. What happened with the cord.
AYes, I remember the kicking, I seen it, like the kicking, and her hitting with the - we were sent to the beds and that must have been the house with the shearing shed rooms.
QYou said that all of your siblings were lined up at this incident with the cheese, is that right.
AIn the beginning, and then there was, and then at the end of it, then I remember [SDH, DG and LH] just appeared by standing by the post, I just remember them standing by the post and that, because -
QWhen you were lined up at the cheese incident, did anything happen to you.
AHe belted me. I’m not allowed to ask him am I?
HIS HONOUR
QI’m sorry, what did you just say.
AWe got belted because nobody confessed to the cheese.
JP
JP said the accused was ‘very harsh’ in his discipline.[88] She said the accused would behave ‘very violently, angry’ when he had been drinking.[89] She said she and her siblings would be dragged out of bed and ‘yelled at for no reasons [sic]’.[90]
[88] T389.
[89] T363.24.
[90] T363.
JP also gave evidence about an incident involving a firearm. She said she was ‘pretty sure’ it was at Kybunga, but that placing the location was hard.[91] I observe that if it was at Kybunga, it is likely in about 1978. JP told me:[92]
AWe were in bed and there was a lot of arguing, carrying on, we could hear [what was] going on, the outside. And then we were dragged out of bed, we were lined up from [SDH], I’m not quite sure whether it was [JS], but I do recall [CB] being alongside me, because I had my elder sister [JH] on one side, and my younger sister [CB] on the other side. And I remember him coming up, walking up and down the line, putting the gun to our heads. Am I allowed to swear?
QJust tell us.
ATo say what was said.
QYes, if you’re relating what someone said just tell me what you recall being said, don’t worry about me being offended by bad language, you don’t need to worry about that.
AYeah, I wasn’t quite sure if I was allowed to swear or not. He would point the gun at our heads and say ‘Which one of the fucking little bitches do I take first?’ and walk up and down and have it pointed to our heads like up close (INDICATES). And -
QDid you just tap your forehead then.
AYes. I can remember mum saying in the background ‘Take me, don’t shoot them’. And it went, it seemed to me it went on for a long time. I couldn’t say how long, but I know it seemed like a lifetime to me. And after that, I’m not quite sure if mum walked out of the, away, because it was terrifying. But then I remember the gun got put down and we were all done, smacked with a cord, like whipped with a cord, walked around in a circle, we called it ‘The Circles’.
[91] Ibid.
[92] T364.17–T365.8.
JP said she did not think JS was present and MW was not there, MW was just a baby.[93] JP told me there were ‘so many times’ she was struck with the jug cord. She said it was ‘easily’ four times a week. A belt was also used.[94]
Mr John P
[93] T366.13–17.
[94] T370.
Mr John P was formerly married to JP.
Mr John P gave evidence about what he observed of the accused. He said:[95]
[95] T351.14–T352.5.
QDid you notice anything about [the accused] when he’d been drinking.
AYeah, yeah, once he - once he’d been drinking super beers, yeah, he’d just start yelling. Sort of start frothing at the mouth a bit, eyes bulging, just yelling and cursing everyone.
QDid you ever witness any other behaviours of [the accused] when he was drinking.
AYes. On the odd occasion he’d backhand the girls if they answered back.
QWhen you said backhand girls, do you have any specific recollection of seeing him backhand a particular girl.
AYes, [JP]. When we were going out, we were walking up the passageway and [the accused] was standing there and he yelled at [JP] something and she just gave a little snipe back and he just backhanded her straight across the face.
QIf you can say what sort of force was the backhand across the face.
AYeah, it was pretty, yeah, knocked her back.
QYou’ve mentioned [JP], are there any other of the girls that you have a specific recollection of seeing him being physical with them.
AYes. I’ve seen him hit [CB]. And we have gone out the farm and all the kids were scared in the bedroom. [The accused] was - we couldn’t see him anywhere and [SW] was actually - she was hiding, sobbing in her bedroom cupboard and she had a black eye.
QAnd which kids were in the bedroom.
A[RH], [SDH], [MW] and [JS].
It was not suggested to Mr John P during cross‑examination that any of the above evidence might have been inaccurate.
CB
CB said ‘violence’ was directed to one of the girls ‘most nights’.[96] She described a jug cord, belt, whip or boot being used. She said the violence did not stop until she left home at about 17 years of age.[97]
[96] T432.
[97] T433.35–T434.3.
CB described an incident involving damage to a cot, or an item associated with a cot. CB said she thought it was MW’s cot. She referred to standing with her arms in the air.[98]
[98] T434–T435.
CB told me about an occasion when she was slapped across the head.[99] She also gave evidence about an incident involving a firearm. She said she had started school and it was before she was in year six.[100] If so, as CB was born on 3 January 1969, it was before about 1979. She thought it was at Kybunga. If it was, it was likely in about 1978. CB said:[101]
AI recall being lined up, with my sisters, in a line, and [the accused] had a gun, and he was holding that at each of us (INDICATES) and he was walking down the line asking mum ‘Which one do I shoot first’, and she just kept saying ‘Don’t hurt any of my girls, don’t hurt any of my girls’. At one stage she grabbed the gun and said ‘Just shoot me’, and he looked at her and he didn’t want to shoot her, he just (INDICATES) held the gun down the line. I can remember we were in age, I don’t know where [MW] was because she was just little, and [JS] was next to me. I know at one stage I grabbed her and held on to her. I don’t know the time duration that this went on, I just remember looking at that gun, thinking that he was going to shoot all of us that night.
QCan you recall, for example, how old you were or whether you were at school at the time.
AI would have been in early school life I reckon, because at this time, at that stage, I was the third youngest and like I say, I can’t really remember where [MW] was, but I know [JS] was standing next to me.
QWhen you say you can’t remember where [MW] was, do you know what age she would have been.
ALittle, baby, like little. Baby infant I think.
QDo you know whether [RH] or [SJH] had been born.
ANo, I don’t recall them being born.
[99] T451.
[100] T454.2.
[101] T454.6–30.
CB said the accused pointed the firearm at ‘us’, placing it about 12 inches away.[102] CB said it was an incident involving cheese or plastic. She said:[103]
AI can’t even think clearly in my mind. It was, I know I was there. I believe [JH] and [JP] were at a different post but I just know I stood there and don’t put my arms down. Don’t put my arms down – is that with the cheese – is that something to do with cheese. That might have been the plastic. I am sorry there were so many occasions that was just rolled into one nightmare of the life.
Mr Wayne P
[102] T455–T456.
[103] T457.5–12.
Mr Wayne P was formerly married to CB. He gave the following evidence:[104]
[104] T656.11–T657.7.
QWas there an occasion on which you, or that you on your own, or that you and she decided that she would no longer live there.
ADue to an incident one evening, yes.
QWhat’s the incident that you’re referring to.
AI was out at the house one evening in the lounge room, and I’ve come out of the lounge room into the hallway, it’s an old farmhouse, and I witnessed [the accused] with his hands around [CB’s] throat, holding her against the wall.
QWhereabouts was he in the house.
AIn the hallway.
QAnd you said his hands were around her throat.
AThroat, yes, pinning her against the wall.
QFor how long was he holding her in that way.
AWell, until I walked out and yelled at him and physically pulled him away from her, and after that I took [CB] with me and she never moved back home.
QYou said that he had his hands around her throat, again, can you tell his Honour what state he appeared to be in when he was doing that.
AAgain, he was inebriated, and angry.
QDid you hear him saying anything.
AHe was calling her a slut.
QHow was he doing it, was he saying it in a normal voice, was he doing it –
ANo, yelling at her.
QDid you see what led up to that –
ANo.
QAnd you said that you yelled out at him.
AWell, I just –
QOr called out to him.
AI don’t recall what I said, but I just remember I – I guess I was gobsmacked at what happened and, I know I physically intervened and pushed him away.
Mr Wayne P also said that there was always alcohol involved at the household and that ‘when things got excessive there was [sic] always arguments and screaming’.[105] He said this occurred on every occasion that he was out at the family home.[106] In the cross‑examination of Mr Wayne P, it was not suggested that any of the above events had not occurred.
[105] T657.31.
[106] T657.
Two things should be noted about that aspect of Mr Wayne P’s evidence which mentions CB. CB did not give evidence of such an incident, nor did she give evidence of any incident in the presence of Mr Wayne P. Those differences have not caused me to doubt CB or Mr Wayne P. Given the extent of the violence of the accused, it is not surprising that CB did not give evidence of every occasion.
JS
JS said that when drinking, the accused would be ‘abusive with us or beat us up or do horrible things to us’.[107] JS said it seemed ‘frequent’ with her but ‘probably not as much as the older girls because I was fairly good at hiding’.[108] She gave evidence about the use of a jug cord and hand.[109] She also said that the accused would ‘kick her up the butt’.[110] She said the accused’s conduct was not always in response to poor behaviour. JS said the accused was violent to her siblings and SW.[111]
[107] T555.33–34.
[108] T555.36–38.
[109] T556.6–7.
[110] Ibid.
[111] T555.
JS told me she recalled one incident involving a firearm. She could not recall how old she was, nor where she was living.[112]
[112] T559.
JS told me she and the siblings were ‘lined up from oldest to youngest’.[113] She said all siblings were present, other than not being sure about RH and SJH. JS said the accused pointed the firearm at each child. She said someone had done something, she could not recall what it was, but the accused wanted to find out who did it. JS said she was overwhelmed, as was CB.[114]
MW
[113] T559.19.
[114] T560–T561.
MW said the accused was not very nice to be around when he was drinking. The accused would get ‘angry’ and ‘would just get violent to whoever was around him’.[115] MW gave evidence about a specific incident when she was about 13 years of age. She said the accused grabbed her behind her right ear and pulled some of her hair out after a comment made by one of the children.[116] MW said the accused would be violent to her a ‘couple of times a week’[117] MW saw the accused be violent to others. She said she saw her mother tied up.[118]
RH
[115] T612.22–24.
[116] T612–T613.
[117] T614.15.
[118] T615.
RH gave evidence the accused was violent to him. He said there was:[119]
AHitting with kettle cords. Just physical grabbing them like my arms, kicking in the arse. Lots of different, yeah, just a lot of physical violence.
[119] T665.31–33.
RH said he began to stand up for himself when he was about 14 or 15 years of age and after that the accused would stop. RH gave evidence about seeing the accused being violent to JS and MW. [120]
DA
[120] T666–T667.
DA gave evidence she was scared of the accused. She gave evidence about a particular incident before the alleged conduct the subject of Count 13. DA said she saw the accused striking a person with a belt while holding that person down.[121] DA also gave evidence about the accused lining up the children in order of age. She recalled occasions involving a bassinet and cheese. She said it was ‘terrifying’.[122]
[121] T740.
[122] T741–T742.
DA also gave evidence about an incident involving a firearm. She thought it was at Hallett, but was not certain. If it was at Hallett, this alleged incident likely occurred between 1975 and 1978. DA said she could not recall if the other ‘step‑sisters’ were present, but recalls SW being there. She said the accused was drunk and staggering. The accused demanded she get out of bed and go to the loungeroom. He was yelling. The accused pointed the firearm at her and pulled the trigger without discharging the firearm.[123]
[123] T745–T747.
DA said there was one occasion she was struck with an ‘extension cord’.[124] She also said she was struck with a hairbrush.[125] DA also spoke of seeing SW tied up with her hands behind her back.[126] DA said she thought LH might have been with her.[127] LH did not give any such evidence. Nevertheless, I do not doubt DA for that reason. I believe any difference to be the product of the passage of time.
SDH
[124] T747.
[125] T749.
[126] T751.
[127] T751.14.
SDH also gave evidence about the behaviour of the accused. It is convenient to summarise some aspects of her evidence, not just about violent behaviour.
SDH was the only witness called in the defence case. Some of the evidence of SDH is contrary to some important aspects of the evidence in the prosecution case. I am mindful that I must consider the whole of the evidence, including the evidence in the defence case, before considering whether any count is established beyond a reasonable doubt.
SDH is the eldest child of SW and IW. She refers to the accused as her step‑father but also regards him as her father. She described having a ‘special relationship’ with the accused.[128] There is no dispute that SDH was living with the accused and SW and complainants for some, but not all, of the period over which the counts are alleged to have occurred. At the time of giving evidence, SDH remained close to the accused.[129]
[128] T890.
[129] Ibid.
SDH gave evidence she first learned of any child in the family making an allegation of sexual assault by the accused about 20 years ago but said she had never spoken to any sibling about that. She said that she had a falling out with other family members at about the same time.[130]
[130] T845–T846.
SDH said she first met the accused about six months after the death of IW. She said she was about 12 years of age and ultimately lived with him for about eight or nine years until moving out when she was about 19 or 20 years of age. SDH must have moved out in about the late 1970’s. SDH continued to visit houses at which the accused, SW and the complainants lived after moving out. SDH said she never saw the accused do anything sexual to anyone in the house and that he did not do anything sexual to her.[131] I note at this point DG said that she had heard something which might be consistent with SDH being sexually abused after hearing an argument between the accused and SW.[132]
[131] T846–T848.
[132] T105–T107.
SDH said she could not recall the accused standing in the doorway at night when she was in bed. SDH said the children shared rooms and that she and DG always shared a room. SDH said she could not recall the accused being in a bedroom at night after she and the other children had gone to bed.[133] She said:[134]
QWas it something that [the accused] would do, to come into the bedroom that you and other kids were in, after you’d all gone to bed.
ANo, I don’t recall that. There was a couple of times that we may have been talking about something before we went to bed or something. I don’t recall dad coming in and – I know mum came in once, to talk about plans they’d made. I don’t, no, I can’t recall that he come into the rooms.
[133] T847–T848.
[134] T848.16–24.
Contrary to an aspect of the evidence of JH, SDH said she did not think she had ever suggested to her that she strike the accused.[135] There is evidence that the accused would permit, even encourage, some complainants to drink alcohol when they were children. SDH said she saw children occasionally finish an alcoholic drink that either the accused or her mother, SW, had. SDH said no one was encouraged to drink.[136] SDH said the accused and her mother drank a lot on weekends and would ‘have a session’ every three or four days.[137] SDH said that there were many times when the accused and her mother were both grossly affected by alcohol. SDH said that on occasion, their mother and the accused would argue and it would escalate to yelling and screaming.
[135] T282, T299 (JH); T980 (SDH).
[136] T850.
[137] T849.33–34.
SDH said the accused was a different person when drunk. She said:[138]
QIf he was drunk and he was disciplining, would the discipline be lighter or harsher if he was drunk.
AIt probably seemed a little harsher to us because if they were drinking and then there was [sic] arguments we sort of tended to make ourselves scarce, so – and we usually didn’t get into trouble, like especially, like, if they were drinking because we knew we would get a kick up the bum or told off or something. So we thought as kids it was a little bit harsher because it was louder, probably, because of the arguing.
[138] T852.34–T853.5.
SDH said there were a lot of discipline in the house. She said the accused and her mother were strict.[139] SDH said the children were punished if they mucked up, but it was not often. She said that there were ‘a couple of instances’ of a belt being used but she could not recall who was struck.[140] SDH said the accused was drunk when the belt was used. She said the cord of a jug was also used to discipline her. She said she was about 14 years of age.
[139] T850–T854.
[140] T852.24–29.
SDH said this was an occasion someone had taken a bite out of cheese. SDH said that although she was not responsible, she took responsibility.[141] At one point in her evidence, SDH said the accused was not yelling but ‘ranting and raving’ and raising his voice.[142] Nevertheless, later in her evidence she said that the accused did yell.[143] She said the accused became ‘really, really angry’ during this incident.[144]
[141] T861.
[142] T856.12.
[143] T960.
[144] T959.5.
At one point, SDH said about five or six of the children were ‘lined up or standing’ in the lounge room having been called out from different rooms.[145] She later said that the children were not lined up.[146]
[145] T857.18.
[146] T955.4–12.
When asked if it was a violent house growing up, SDH said:[147]
[147] T952.18–38.
QSo it was a violent house growing up, wasn’t it.
AYes, but it was still a happy place if the – apart from those occasions when there was violence, yeah.
QAnd then it was a deeply unhappy place, wasn’t it.
ABeg your pardon?
QThen it was a deeply unhappy place, wasn’t it.
AAt those times when they were arguing it was, yeah.
QIt was terrifying.
AYeah, well, no kid likes to hear their parents argue, it’s not – yeah.
QIt’s not just about hearing them argue, it was terrifying –
AYeah, seeing – yes.
QJust wait please. It was terrifying when [the accused] was in a rage, wasn’t it.
AIt was frightening, yes.
QTerrifying.
ANo, just frightening because you didn’t know what was going to happen. We weren’t terrified because it was, like, we knew mum would protect us if he did do anything, that’s what I mean.
SDH said:[148]
QWere there other times or not when [the accused] would round up the children and they would stand there and he would yell at them.
AYes, sorry, if one of us had done something that we shouldn’t have, we were all questioned, like all brought together and questioned, and then the guilty party, whichever one it was or whatever they’d done, would then be punished.
QHow would they be punished, what were the different ways they might be punished.
AIf it was a really bad thing, we’d get the kick up the bum. If it was something minor that we know we shouldn’t have done, but we did it anyway was more like removal of privileges or, yeah, you know, like small things like we weren’t allowed to watch TV for a week or weren’t allowed to go to a place that we wanted to go.
[148] T861.7–22.
SDH said:[149]
QYou talked in your evidence before about [the accused] ranting and raving.
AYeah, it was more like he was – like, when he was yelling it was like shouting, it was just loud like, yeah, really pushing the point home, like yelling constantly, like, if we messed up.
QWas that when he was drunk, not drunk, both.
ADrunk.
[149] T877.25–32.
SDH said the cheese incident was later discussed among the children.[150]
[150] T968.
SDH said that cheese incident was not the only occasion the children were called together for discipline or punishment. On some of those occasions, she said the accused was ‘in a rage’.[151] SDH said there were three occasions when a belt was used.[152] She said she never saw the accused slap anyone.[153]
[151] T948.15; T957.38; T963.30; T964.3.
[152] T953.5–8.
[153] T970.6–7.
SDH said that she never saw the accused with a gun inside the house and that she could not recall it being used or ‘talked about’ during any discipline of anyone.[154]
[154] T975.
There is some evidence to the effect that once they had children of their own, some complainants would not allow their children to stay with the accused without being present as well.[155] SDH contradicted this in her evidence.[156]
[155] T504–T506 (CB); T247 (LH); T286 (JH).
[156] T991–T993.
SDH said that RH’s eldest son used to stay with the accused and her mother when he was a child. She said this was at Nildottie (a place the accused has lived more recently than when he lived in the Mid North) and occurred quite often for a few days at a time. Sometimes the child would be on his own, sometimes RH and his wife would stay as well.[157]
[157] T867–T868.
SDH said she also saw the children of other siblings visiting the accused’s home in Snowtown. She said:[158]
QWhich kids would be present at that Snowtown house when you were there, and the other adult siblings weren’t.
AUsually [JP’s], [CB’s], [JH’s] and sometimes [JS’s], and on occasion it was [LH’s], but she was – that wasn’t very often, and moved too, she was too far away, so she didn’t leave the kids there.
QDo you know, how would those kids get there if their parents weren’t there.
AI witnessed quite a few times that I would go over on a Friday afternoon and we’d be sitting out the front and mum would be waiting for my two brothers to get off the school bus, and quite a few times there would be five or six extra kids get off and then mum would get a phone call saying they were in Adelaide, or they were up at Lochiel, you know, and could she watch them. So generally, and sometimes those kids were left there quite often until the Saturday, and on occasion they were picked up on the Sunday. Because the girls were partying.
[158] T871.27–T872.7.
In the context of discussing the evidence of JS, I will refer to evidence of Mr Doug Hallett seeing JS being sexually assaulted and evidence about what some witnesses say occurred at about that time. For present purposes, it is sufficient to record that the evidence included Mr Doug Hallett speaking to SDH about what he says he saw; discussion within the family; and contact with the police. At one point in her evidence, SDH said she did not remember Mr Doug Hallett ever saying something about the accused and JS.[159] SDH said she was not aware of any reports to the police about the accused and JS in the period that she was living with her siblings and did not remember any occasion that the police then attended. She said:[160]
QDid they attend the house on any occasion, on business, police business, to speak to anyone in the house.
AI don’t remember, I don’t remember them turning up. I can’t recall if they came out, I don’t, I don’t remember if they did. They might have done.
[159] T872.
[160] T874.32–36.
As for the occasion on which Mr Doug Hallett claims to have seen something involving JS, SDH said:[161]
[161] T981.28–T984.13.
QDidn’t Doug wake you on one of those occasions when you were staying over and your children were visiting and tell you about something that he’d seen between your father and [JS].
ANo.
QWasn’t there a – I’m saying ‘something’, he was describing something sexual that he’d seen between [the accused] and [JS].
ANo.
QAnd there was a big discussion in the family members who were there about this occasion, wasn’t there.
AI remember something come up, but Doug wasn’t – I’m not sure how it come about, because Doug had been talking to someone, and I don’t know who or exactly when, but something come up about dad, but I didn’t wake him, and there was a discussion as to what had actually happened and he, he’d said that he caught dad coming out of [JS’s] room. That’s all I know. I wasn’t, like, awake, I didn’t – I didn’t wake him up to check anything.
HIS HONOUR
QNo, I think Mr Walker was suggesting that Doug woke you up to tell you something.
ANo, no.
QBut did you just tell me – please correct me if I’ve misunderstood –
AYeah.
Q– that there was a time when Doug told you he’d seen [the accused] –
AYeah, one morning he said that he’d seen dad coming out of [JS’s] room. That’s what I meant, I didn’t mean to confuse anything there. I – he didn’t wake me up that night or I didn’t wake him up, it was he said the next morning that he saw dad coming out of [JS’s] room.
SDH gave evidence about speaking to JS about what Mr Doug Hallett told her. SDH said:
QWas that something of concern to Doug or it appeared to be of concern to –
AIt was obvious what, sorry?
QWhat I’m asking you is whether Doug appeared to be raising that as a matter of concern with you.
AIt was at the time. I asked [JS] and she denied anything, but nobody could trust what Doug said anyway, he was – if anything, the thought crossed my mind that he’d been in [JS’s] room. But I asked [JS] if anything was wrong and no, she didn’t tell me that dad had been in there or Doug or – she didn’t say that dad had been in there.
HIS HONOUR
QWell, whatever Doug said to you, did it cause you to speak to [JS].
ASorry?
QWhatever it was that Doug said to you about seeing [the accused] come out of [JS’s] room –
AYeah.
Q– caused you to speak to [JS].
AYeah, he said –
QAnd ask her about it.
AYeah, because like why would dad be in [JS’s] room? And I can’t remember what time it was that Doug said he saw dad coming out of [JS’s] room. But she said that, you know, nothing was wrong, she told me that, so –
QCan you remember what you asked her.
ASorry?
QCan you remember what you asked her, what you said to her.
AIt was – I think I asked her, I said ‘Was dad in your room last night, is anything wrong?’ and she said ‘No’, it was just we thought that Doug must have made it up, I don’t know, he was – he wasn’t exactly an honest, truthful person, that’s what made me think if it was him coming out of [JS’s] room. But [JS] said nothing had happened, so that wouldn’t – the matter was sort of dropped. I asked her, you know, if dad had been in there and–she said ‘No’ and I asked her if everything was all right, so I don’t know who was confused on that part, like – he wasn’t the most honest person.
XXN
QYou can’t remember what Doug said to you.
ASorry?
QYou can’t remember what Doug said to you.
AThat, all he said was – he was like ‘I saw your dad coming out of [JS’s] room’.
QBut do you agree that he must have said something more than that to make you go and speak to [JS] about it.
AYeah.
QBecause if he was just saying ‘I saw - ’
AYes.
Q‘- your dad in [JS’s] room’, that would not be a cause for concern.
AYeah.
QSo there was something about it that was concerning.
AWell, I just wanted to know why dad was coming out of [JS’s] room but she said – like, I said ‘Was dad in your room last night and is everything all right?’ ‘Yeah, no, it’s all right’. So I just assumed that Doug – he wasn’t the most honest person, I just – well, I didn’t know whether he made it up or was causing trouble, I don’t know.
SDH said there was discussion the following morning:[162]
AThere was a discussion, yeah, the next morning and it sort of went nowhere because [JS] had said dad wasn’t in there. Doug as [sic] adamant he saw dad coming out of [JS’s] room. The only question I had was what he was doing near [JS’s] room when he didn’t really need to be there but because [JS] had said nothing had happened and she was okay, it sort of went nowhere so if [JS] had said she wasn’t okay or dad had been in there -
[162] T986.6–13.
SDH denied that Mr Doug Hallett had told her that the accused had been in the room of JS and doing something sexual.[163] SDH denied that she lied in her evidence because of her ongoing relationship with the accused or because of being married to his nephew.[164]
[163] T989.
[164] T995–T996.
SDH said she did not ever see her mother tied up.[165] SDH said:[166]
QWhen you were a child growing up and [the accused] was violent to you, it was unhappy place to be, wasn’t it.
ANot very often. If he went and was violent, it didn’t last for long, and growing up I thought we all had a happy childhood. It was a good place to be. It was not an unhappy place or we were happy. We were carefree. We were allowed to go and do pretty much what we wanted, you know, within reason. We weren’t kept like slaves and told not to talk sort of thing. I thought we had a pretty normal childhood apart from the occasional times that they did drink and dad would get violent, which wasn’t very often.
[165] T976.
[166] T934.5–16.
Non‑sexual violence—discussion
An appropriate starting point for the evaluation of the evidence of the non‑sexual violent behaviour of the accused towards children living in his care is the evidence of DA. I have summarised some of her evidence above.
For reasons to be discussed when dealing with the evidence of sexual abuse given by DA, DA left the family home as a child and had no further contact with any complainant. While DA lived with other complainants for a relatively short time when she was a child, which gives rise to the possibility of non‑sexual violence by the accused being discussed with her when she was a child, I reject that the memory of DA about non‑sexual violence might have been contaminated by another complainant before DA left the home of the accused. I also reject that the memory of DA of the sexual assault of her has been contaminated by anything said by another complainant. There is no evidence that by the time DA left the home of the accused for the last time, that any complainant, or anyone else, had told DA that the accused had sexually assaulted anyone. The latest DA could have lived with the accused was in 1980. The alleged incident involving Mr Doug Hallett was after that. There is no evidence that any complainant spoke of sexual abuse before 1980.
It is next helpful to consider the evidence of the accused’s witness, SDH. I have set out some aspects of her evidence about the violent conduct of the accused.
Based solely upon the evidence of DA and SDH, I have no doubt the accused was aggressive and violent towards children in his house, particularly if he had been drinking. That the accused was prepared to be violent towards step‑children is further confirmed by the evidence of Mr John P and Mr Wayne P albeit that their evidence relates to a later period of time than some of the other evidence of this type and after the relevant complainants allege being sexually assaulted. Nevertheless, it is evidence that informs the way the accused behaved when drinking and his attitude to the relevant step‑children.
I am satisfied that the evidence of DA about the accused using a firearm was both honest and reliable. I reject that DA might have invented or imagined that conduct. The evidence of DA on that topic falls to be evaluated bearing in mind the evidence of DG, LH, CB, JS and JP who also gave evidence of the accused acting in such a way.
Each remaining complainant spoke about the accused acting violently. I consider that evidence to be both credible and reliable, notwithstanding that evidence which might be of the same incident does not correspond in every respect. I am satisfied that each complainant did their best to recall the violent conduct of the accused accurately. I am satisfied that the differences are the product of the passage of time and it being natural that different witnesses to the same conduct will recall things differently. That different incidents, and that the accused was generally a violent man, has been discussed between complainants cannot be excluded. Nevertheless, I reject that the accused behaving violently to children and SW has been invented or imagined.
The evidence that the accused was violent to, or in the presence of, his children was overwhelming. Although SDH did not always characterise the behaviour in the same way as complainants did, the evidence of SDH confirmed that the accused behaved in a way likely to promote fear.
I am satisfied that each complainant was subjected to an upbringing in which non‑sexual violence by the accused was common. I am satisfied that every complainant had reason to fear the accused when they were a child living in a house of the accused.
With respect to the evidence given of non‑sexual violence, as I have said, there are differences in the evidence of witnesses with respect to what is said to be about the same incident. For example, those present at the incident involving the cheese differs between witnesses, as does where and when the incident occurred along with details about what took place. Of those witnesses who spoke of a firearm, most only gave evidence of a single incident. Others gave evidence of more than one. Not all witnesses gave evidence about an incident involving a cot. Those who did so did not describe the incident in precisely the same way. There are other differences. There is no doubt that there has been the opportunity for all complaints to discuss the conduct of the accused.
The passage of time gives rise to unreliability. I recognise there is a risk the evidence given by witnesses about incidents involving a firearm and other occasions of violence, has been contaminated by discussions within the family. The incidents are of such significance that it might be expected they would be discussed. In all the circumstances, where there are relevant differences in the evidence of witnesses about what appears to be the same incident, I am unable to determine precisely when the incident took place, where, and precisely who was present. I am also unable to determine precisely what occurred on each occasion.
That said, for evidence of non‑sexual violence to have a use in the prosecution case, I do not have to accept every aspect of the evidence. The issue is whether I am satisfied the accused was violent to children in his home and whether being the victim of that, or observing it, caused specific complainants to fear the accused. If that is so, then the issue is whether that might explain why a particular complainant submitted to sexual conduct, did not complain of it and did not intervene if the accused might have been sexually abusing another in their presence. It also might shed light on whether the accused believed a particular complainant might submit to a sexual act.
Having considered the whole of the evidence, I am satisfied the accused did have children within his house removed from their bed, made them stand in a line and punished more than one child physically in the presence of others. I am also satisfied the accused struck complainants with at least a belt, jug cord, electrical cord or boot. I am satisfied the accused held a firearm on at least one occasion and threatened to use it.
Having considered the whole of the evidence, I am satisfied the accused commenced non‑sexual violent behaviour to the children in the house early in his relationship with SW and it became a regular feature of what would occur in the house. As set out earlier, it is likely that the accused moved into the house with SW and others by about late 1973. LH and JH gave evidence of violent conduct occurring at every house. DG gave evidence of a specific occasion when she was about 12 years of age. That would place the violent conduct as occurring in approximately 1974. JP referred to an occasion when MW was a baby. MW was born in November 1973. SDH gave evidence of an incident with a jug cord being when she was about 14 years of age. This would place that incident in about 1974. I am satisfied that the accused was commonly violent in a non‑sexual way to, or at least in the presence of, all complainants. I am satisfied each complainant feared the accused because of his non‑sexual violent behaviour towards them and/or what they observed towards other children and that, for each complainant, that fear existed before any sexual act by the accused alleged by them.
An aspect of the submission of the accused was that the evidence of each complainant about the non‑sexual violent conduct of the accused had differences. As I have said, I accept that. From that premise, it was submitted that such differences are an indication of unreliability which needs to be considered in evaluating the reliability and credibility of each complainant about the sexual abuse they alleged that they suffered or observed.
As I have said, I recognise that the evidence of the complainants about specific occasions of non‑sexual violence differs in some respects. I accept that illustrates the care that is needed in evaluating evidence of other traumatic events such as alleged sexual acts which occurred at around the same time and many decades ago. It is not necessary to examine in detail the differences in the evidence about occasions of non‑sexual violence. Even without evidence which illustrates that the potential for unreliability is real, there would not be any doubt that memories of events as a child can be unreliable, particularly when those events are alleged to have occurred decades ago and involve traumatic events. That is something that is essential to bear in mind in evaluating the reliability of the evidence of every complainant about sexual abuse of which they say they were a victim or which they claim to have observed. It would be essential to bear in mind even if the risk of unreliability was not illustrated by specific examples of differences in the memories of different complainants about different acts of non‑sexual violence during their childhood.
Another aspect of the importance of the evidence of non‑sexual violent conduct is whether it might provide an explanation for a complainant to imagine acts of sexual assault. Put another way, might it provide a setting in which a complainant might become convinced that they were a victim of, or witness to, sexual abuse by the accused when they were not? Might it make a complainant more likely to become convinced something happened which did not happen? With respect to each complainant, this will not be overlooked. However, in not overlooking it, it is not obvious to me that being the victim of non‑sexual violent conduct might make it more likely that a person will imagine sexual abuse.
As a general proposition, a person who bears animus to a person because of their conduct might invent other conduct. It might be easier to make a false allegation about a person when you have good cause to dislike them. I will bear this in mind in evaluating the evidence of every complainant.
Impermissible use—non‑sexual violence
In addition, enquiries having been made, there is no police record of the police speaking to the accused or his family or investigating an offence in the 1980’s.[535] Nevertheless, for the reasons given earlier in discussing the evidence of Mr Doug Hallett, I am satisfied that there was discussion of what Mr Doug Hallett had seen of the accused sexually assault JS at the time. I accept that JP was reliable when she said she had contact with the police with respect to JS. In my view, JP is mistaken about Mr Lamshed having any involvement in attending the accused’s home in relation to JS. The likely explanation for the mistake is that he attended at the home of the accused on several other occasions. I have earlier considered the significance of the absence of any police record of involvement with JS at this time and explained my approach to the evidence of conduct with police despite the absence of any record. I will not repeat my approach. In short, the absence of a police record does not cause me to doubt the evidence of JP that there was contact with police at this time. There is other evidence which is consistent with JP’s evidence that there was such contact.
[535] T805.
The accused submitted that JP had tailored her evidence with respect to what had been discussed with other complainants. There was extensive cross‑examination of JP on this topic.[536] I have carefully considered that evidence. Rather than being suggestive of a possibility that JP was prepared to lie, I found her response compelling as to why she had believed it not appropriate to speak to other complainants if the matter was to proceed to court.[537] JP said it was ‘general knowledge’ that ‘if you’re going to court, you are not allowed to talk… about things in the case, because it would all be in evidence …’.[538] When JP was asked about supporting her sisters, she said:[539]
[536] T391–T395; T418–T420.
[537] T395.
[538] Ibid.
[539] T413.3–19.
QAnd I suggest that your statement from 23 May 2017 was the first time that you mentioned you’d seen [the accused] coming into the bedroom and going anywhere near your sisters, what do you say about that.
AIf it’s stated in that statement, yes’
QI’m suggesting that you did talk to your sisters about what they were going to say, what do you say.
AYou’d be wrong about that.
QAnd I suggest you did hear details about what they were going to say.
ADefinitely wrong about that one.
QWere you keen to support your siblings in coming to court’
AI’m always keen to support my siblings on everything. Anything that they’d like to do, to encourage them to move forward in life but I do not support telling lies or doing wrong things.
I accept the evidence above. In my view, JP was not a witness who was prepared to be dishonest. I have no doubt that JP’s emphatic denials were honest.
Later in her evidence, JP was asked about whether she said things which she knew to be false. She said:[540]
[540] T419.3–18.
QI suggest that over the years with your siblings you’ve talked about sexual acts as well.
ANo, you’re suggesting wrong.
QI suggest you’ve talked about the idea of a silhouette of [the accused] and him coming into the room.
AWell, again you’re wrong. I know and he knows (INDICATES).
QAnd I suggest that you have said some untrue things to police about sexual acts.
ANo, just not the complete truth, they’re not untrue.
QAnd I suggest you’ve done that to try and help your sisters and your brother [RH].
ALike I said’ I’d do anything to help my siblings move forward, but I don’t lie and I don’t know their situations behind any kind of sexual abuse, I can only talk about my own.
The person JP indicated during the evidence above was the accused. When JP gave the evidence above, I formed the impression that she was genuinely affronted by the suggestion that she would lie. I formed the same impression at the time of the following evidence:[541]
Q‘It’s my bad question. What I’m asking or suggesting to you, is that you are lying about how certain you are that [the accused] did anything sexual in the house, to you or others’.
AI’m not lying about that, no.
[541] T420.2–6.
The accused also directed attention to the evidence of JP that she would not have her children babysat at the home of the accused. The evidence of JP about that was emphatic. The following exchange occurred during cross‑examination:[542]
[542] T420.9–T421.10.
QI suggest that while [the accused] and [SW] were living in Snowtown, once you had moved out of that house and you had your own kids, I suggest that you would send your kids to [the accused] and [SW] to be babysat.
AYou’re absolutely wrong on that matter, my children never, never went there.
QI suggest that it wasn’t just you, can you say about whether any other siblings gave their kids over for babysitting to [the accused] and [SW].
AYou could probably say [SDH’s] children were the only children that I wouldn’t say safely, that would ever go there and stay. I can guarantee you mine never went there and would never.
QWhat about [LH’s] children.
AI can’t talk for [LH]’ I’m not quite sure if whether she left her kids, but I doubt that very much. Touching a very subject for my children.
QTo be clear what I’m suggesting is that they would, your children, catch the bus up on a Friday night.
ATo John’s house, you’re not talking about -
QTo [the accused] and [SW’s].
ANo, where would they catch the bus from?
QFrom where you put them on the bus. Did you ever put your kids on the bus to Snowtown to -
ANo.
Q- [the accused] and [SW’s].
ANever ever.
QAnd I suggest that you would then collect the children on a Sunday night at the end of the weekend.
ANo.
QI suggest that happened more than once.
ANever ever have my children been sent there.
QDo you agree that you used to return there for bonfire nights.
AReturn where?
QTo the property at Snowtown yourself.
AOn bonfire nights?
QYes.
AI don’t recall bonfire nights, there used to be a bonfire every now and again, but no.
I have earlier set out the evidence of SDH on this topic. I have also found that SDH has been deliberately untruthful in an important aspect of her evidence (i.e. – whether she recalls what I am satisfied Mr Doug Hallett told her about the conduct of the accused towards JS). I reject the evidence of SDH where it conflicts with the evidence of JP immediately above. That said, I have not found the conduct of JP in not allowing the accused contact with her children of assistance in evaluating whether JP is credible and reliable about Count 5. As set out earlier, JP was subjected to a violent upbringing. That alone might explain a desire to separate the accused from her children.
Further discussion
JP struck me as a straightforward woman. She was an impressive witness. There was nothing in the way she gave evidence which caused me to doubt her. That said, as set out above, there are some significant inconsistent statements and significant differences in the evidence of JP and other evidence in the trial which must be considered in evaluating her credibility and reliability.
In my view, the most significant inconsistent statements and differences with other evidence in the trial are the failure to identify the accused as the relevant male in 1998 and the failure to mention the accused approaching the beds of CB and JH in 1998. The inconsistency about whether the vagina was penetrated also has significance as it might be consistent with imagining an event or a preparedness to deliberately embellish a false account.
The most significant differences in the evidence of JP compared to other evidence is her evidence about involvement with the police after the incident involving JS and the agreed fact about Mr Michael H not seeing SW restrained.
The failure to identify the accused in 1998 must be evaluated mindful of my rejection that the male might have been Mr Doug Hallett. On the evidence, it is not obvious to me that there might have been any other perpetrator other than the accused. Nevertheless, in 1998, JP did not say that she knew the accused was responsible and described only a silhouette of a male who smelt of smoke.
Further, it is relevant that since giving the statement in 1998, JP has had opportunity to learn from others about the accused sexually abusing them in their bedrooms. Whether that might have caused JP to lie or to imagine what she says she experienced must be considered. I reject that JP might have lied about what she says happened to her or that she lied in the hope of supporting any other complaint. I have earlier set out specific passages of the evidence of JP on that topic which I have no doubt were truthful. I accept her evidence that she was not prepared to lie. I add that had she been prepared to lie, she could have given evidence of seeing more when she says she saw the accused approach CB or JH. JP did not take that opportunity.
I accept that JP became aware of what Mr Doug Hallett said he had seen involving JS well before 1998. That must be considered in evaluating whether JP might have invented or imagined what she says occurred on the occasion of Count 5, as must other opportunities for JP to learn that others had been sexually assaulted.
The failure to mention the accused approaching the beds of JH and/or CB in the statement in 1998 is important, as is the evidence of JH which does not include an allegation of being sexually abused in that circumstance. I do not doubt the reliability of JP because of this. JP gave evidence that while the accused might have been at a bed(s) for as much as 30 minutes, she did not see what he was doing. In the circumstances, and as I accept her evidence about not giving a ‘full statement’ in 1998, this does not cause me to doubt JP about the incident the subject of Count 5.
The differences in the evidence with Mr Michael H are less significant than the matters just mentioned, for three reasons. Firstly, it is not a difference about whether JP was sexually abused. Secondly, that SW was assaulted in the way described is consistent with the evidence of MW[543] and DA.[544] It is unlikely that JP might have been influenced by the recollection of DA. There was no contact with DA after she left the house as a child and no suggestion in the evidence that such an incident might have been discussed before DA left the house for the final time. Thirdly, the evidence that the accused was violent to SW is considerable and finds support in the evidence of witnesses other than the complainants. I have in mind Mr Doug Hallett, whom I accept saw violence to SW and Mr John P whom I accept saw SW sobbing and with a black eye.[545] In my view, JP is mistaken about Mr Michael H being with her when she observed SW being subjected to violence.
[543] T615.
[544] T751.
[545] T352.
There were some specific aspects of JP’s evidence beyond her account of sexual abuse of her which, in my view, were consistent with JP being an honest witness.
As already observed, I found the evidence of JP about supporting other members of her family, but not to the extent that she approved of telling of lies, compelling.[546] I reject that her response was a lie. I accept that it reflects her approach to her evidence. That is, that she was only prepared to relate what she genuinely believed had taken place.
[546] T413.16–19; T419.15–18.
JP did not attempt to hide that she intended to seek compensation. She agreed she had been to a meeting with more than one sister. It can be accepted that she was unlikely to lie about that given the presence of others. Nevertheless, her evidence, ‘…I will be seeking compensation…’,[547] struck me, at the time it was given, as the statement of a person who genuinely believed she had experienced what she alleged and was not embarrassed about believing compensation was something to which she was entitled. I am satisfied that she was not embarrassed because she believes her evidence about Count 5.
[547] T400.21.
I was impressed with the way JP described what she saw the accused do at the beds of others. In my view, she did not do so in a way that suggested she might be prepared to be dishonest. She did not claim to be able to see any sister being touched, let alone on what part of the body. This is not to overlook that JP placed the accused at the bed of JH when no such evidence was given by that sister. However, I am satisfied that is a matter going to reliability, not honesty.
As I am satisfied beyond a reasonable doubt that JP was an honest witness, the real issue is the reliability of JP’s evidence of Count 5.
Like all complainants, the evidence of JP must be approached with care. Given the passage of time, the risks of reconstruction and imagination must be carefully considered. On the occasion the subject of Count 5, JP was intoxicated when she went to bed. She may still have been affected at the time she woke. Alcohol can have an adverse impact upon memory. As observed, the incident commenced when she was asleep, and she cannot have been awake for very long before the incident came to an end. There is a risk of unreliability when a witness recalls many years later an event which is said to have taken place when they were intoxicated, and waking up from sleep. That risk is increased when the accused has been seen by JP at the bed, or beds, of other sisters and when JP is aware of other complainants alleging sexual abuse by the accused. Such matters give rise to the need to consider the risk of assumption, or imagination, about what the person was doing in the room and the specific sexual abuse said to be recalled.
The evidence of JP about the accused approaching the bed of JH must be compared to the evidence of JH about that. The evidence of JP and JH is not necessarily consistent but, as earlier set out, JH did give evidence that the accused did come into her room at night.[548] In my view, it is probable that any difference in the evidence is the natural consequence of the passage of time. I reject any differences as inconsistent with either witness being credible or reliable.
[548] T283.8–285.11
JP was giving evidence of a single incident which occurred about 40 years ago, at night and when she had been drinking. By the time she first made an allegation to the police, she was aware of the alleged conduct towards JS which was said to have been observed by Mr Doug Hallett.
I will not repeat those aspects of her evidence which I found compelling and those aspects which satisfy me that she was genuinely affronted by the suggestion that she might lie. However, as I have said, in my view, the real issue is the reliability of the evidence of JP about Count 5. Is it possible that she has imagined her vagina was penetrated when it was not? With the passage of time and having become aware of similar allegations having been made by others, might she have imagined the incident or that it was the accused? Is it possible that her evidence of this single occasion is unreliable?
I formed a very positive impression of JP when she gave evidence. As I have said, at the same time, the incident the subject of Count 5 was a very long time ago. It was an act which occurred only once, perhaps giving rise to a possibility of JP being unreliable about a single event which did not take place, particularly in the context of learning, before that event was revealed for the first time, that others in the family had been subjected to abuse. The memory of JP is that she was intoxicated when she went to sleep and was woken from sleep at the time of the incident alleged. Consideration must be given to whether one, or both, of those circumstances might have adversely impacted upon an accurate memory. As I have said, JP did not implicate the accused in 1998 despite the opportunity to know others had made sexual allegations against the accused. JP said in 1998 that the only thing she could recall about the male was the smell of alcohol and smoke.
I must be satisfied that the specific act alleged in Count 5 took place beyond a reasonable doubt. Despite JP being an honest witness and how impressed I was by her during her evidence, I cannot be satisfied beyond a reasonable doubt that she is reliable in her evidence about the single specific occasion alleged (i.e. – that the accused touched her vagina on the night of a birthday). The doubt I have is not resolved by using the propensity of the accused as a piece of circumstantial evidence. I am still left with a reasonable doubt about the reliability of the evidence about this specific single occasion. The doubt cannot be resolved by consideration of improbability reasoning. I am unable to exclude that the account of JP of Count 5 might be because of something learned from another complainant (i.e – innocent contamination).
I find the accused not guilty of Count 5.
RH–Counts 10–12
RH was born on 19 September 1976. He is the son of the accused and SW. RH’s first memories of the family’s living arrangements is a caravan park at Snowtown,[549] followed by different houses in the Mid North. He left home when he was about 16 years of age.[550]
[549] T664.13.
[550] T664.36.
Counts 10–12 inclusive
RH gave evidence that he was sexually abused for the first time when about five or six years of age. An aspect of his evidence was:[551]
[551] T667.23–T668.4.
QWas he sexual towards you in [sic] one occasion or more than one occasion.
AThree occasions.
QI want to ask you about the very first occasion that you remember.
AYep.
QThe first one in time.
AYep.
QFirstly, how old were you, if you can say.
AI think around five or six year old, around that age just about where he entered the room. I was in one of my sister’s beds. I think it was [JS’s] bed I believe. I know she wasn’t in the room at the time. He come [sic] in behind me. I was wearing pyjamas. He pulled down my pants where he proceeded to enter his finger into my arse kneeling down beside the bed.
QHow did that incident end.
AIt felt like a lifetime but he wasn’t in there very long and then he stopped and stood up and walked out of the room.
That alleged incident is the conduct the subject of Count 10.
An aspect of his evidence about the alleged incident the subject of Count 11 was:[552]
[552] T671.21–T672.9.
QCan you tell his Honour what occurred on this occasion.
AAgain he come into the room. There was fighting going on. I remember some, yep, there was [sic] arguments that night and [MW] I think – I think [MW] was in the bed as well when he came in and he came up behind me and did the same thing. I slipped. I tried getting out of bed but he came in and jumped back into bed and then he come up behind and that’s when he did the same thing again, pulled my pants down and inserted fingers, kneeling down by the bed.
QOn this occasion did he say anything to you.
ANo.
QDid you say anything to him.
ANo.
QWhat were you doing while his fingers were penetrating your anus.
AJust trying to keep quiet. Not move, yeah.
QHow did this incident end.
AThe same, he just stood up and walked out.
QI’ll ask you the same question.
AYep.
QWhen he stopped doing what he was doing, and before he left the room –
AYep.
Q– did he say anything to you.
ANo, he just stood up and walked out.
In opening, the prosecution particularised Count 12 as being as an occasion of penetration of RH’s anus.[553] RH did not give evidence of that act. RH said:[554]
AHe came in, it was late at night, and that’s when I’d woken up to him coming in. He’d done the same sort of thing again, he knelt down beside the bed, he pulled down my pants, and he went to insert and that’s when I woke, I jumped up out of the bed, I screamed at him, I told him to ‘stop it’, ‘leave me alone’. I ran out the house, and I went and hid in the shed, which they called, they called it the super shed at that time, and I stayed in there until I could go back inside. I stayed in there for hours.
[553] T12.
[554] T674.25–34.
RH did not elaborate on what was meant by ‘he went to insert’. Faced with the above evidence, in its closing address, the prosecution submitted that the pulling down of the pants was the conduct the subject of Count 12 and submitted that I should not consider whether an attempted indecent assault had been proven.[555]
[555] T1013.
I find the accused not guilty of Count 12. Even if the evidence of RH is accepted beyond a reasonable doubt about what occurred with his pants, I am not satisfied that it is open to convict of indecent assault when the act the subject of Count 12 was identified by the prosecution in its opening as penetration of the anus. The prosecution chose to particularise in its opening an act that involved a touching of the anus of RH. The pulling down of the pants was, at best, a preparatory act. I am not satisfied that it is open to me to convict of a completed offence of indecent assault when the evidence does not establish beyond a reasonable doubt that there was a touching of the bottom of RH, let alone a touching of the anus.
As the prosecution did not invite me to consider that the evidence established beyond a reasonable doubt that the accused had attempted to indecently assault RH by attempting to touch his anus, I do not need to consider whether the evidence established an attempted indecent assault. Nevertheless, the evidence given about Count 12 is discreditable conduct. It places into context the alleged conduct the subject of Counts 10 and 11. That evidence has no other use. It must not be used to suggest that the accused a bad person and is more likely to have committed either Count 10 or 11.[556]
[556] Evidence Act 1929 (SA) s 34P(1).
A summary of the submissions of the accused
The accused directed particular attention to prior inconsistent statements made by RH.
In a statement given in 1998, RH did not allege that he had been sexually assaulted by the accused. RH agreed that his mother was still alive, and he did not want to deal with it.[557]
[557] T699.
In evidence, RH said that he had seen the accused come into the same bedroom occupied by him and JS, pull back the bedding and move his hands around. He said that he saw this ‘numerous amounts of times’.[558] He said that on at least some occasions he was under another bed in the room. RH gave evidence that he had seen the same thing occur with respect to MW when he was in bed with her and when he was under another bed. RH said that he saw the accused touch MW around the area of her vagina.[559] RH said that he saw this more than once and referred to recalling four times that this occurred.[560]
[558] T684.16–21.
[559] T685.24–27.
[560] T686.8.
In a statement given in 1998, RH told police that he had not seen the accused assault any girl in a sexual way. RH’s evidence about this aspect of his statement in 1998 included that he had just had children himself, ‘pushed it all out’ and did not think of it.[561] RH also said:[562]
[561] T708.5.
[562] T692.25–37.
QAnd I suggest that you told Detective Carson ‘I never witnessed dad assaulting the girls in a sexual way’.
AI probably did say that.
QI suggest that’s true, you didn’t witness [the accused] sexually touching or assaulting the girls.
AYeah, no, that’s not true, I did witness that.
QYou can see that that’s different, what you said in 1998 to what you’ve said today can’t you.
AYes, yeah I can see that, yeah.
QI think you were going to tell us something about your thinking in 1998, I think you said mum was alive.
AYeah, and it was just all shock, I didn’t want, I didn’t want to deal with it. Just didn’t want to do it.
In December 2019, RH gave another statement in which he said that despite sleeping with his sisters on occasions in their beds, ‘they never got sexually assaulted … while I slept with them’.[563] RH agreed that in 2019 he had said that he had hid under beds and seen the accused kneel next to the beds. However, RH also said in 2019 ‘I don’t know exactly what he was doing, but I am assuming that he was sexually assaulting them’.[564] As set out earlier, RH said in evidence that he had seen at least MW being touched in a sexual way. It is difficult to interpret his evidence about JS and the accused as being anything but witnessing sexual assault of her. An aspect of RH’s evidence about the statement in 2019 was:[565]
QAnd I suggest that you were saying by that, that you were not aware that the girls had been sexually touched while you were in bed with them.
ANo, I was aware that the girls had been sexually touched. But what I’m trying to say is that there was [sic] a lot of times that I’d go in there and just sleep in there with the violence that was going on, that was my protection to them, that’s all I could do. I couldn’t fight him. Just being in that room, you know. The violence, a lot of violence all the time in that house, when they were drinking.
[563] T695.15–16.
[564] T697.10–12.
[565] T696.25–35.
MW did not give evidence of being sexually assaulted in the presence of RH. However, JS gave evidence consistent with her being sexually abused in the presence of at least one brother. When giving evidence about an occasion which she related to her ninth birthday, JS said:[566]
QDo you know whether you were in a bed on your own or sharing with someone else.
AI believe I was in a bed with one of my brothers. I don’t know which one it was and I recall hiding my brothers under my bed, as I had done on quite a few occasions to try and protect them.
QProtect them from what.
AI did not want anything to happen to my brothers.
[566] T563.12–19.
As set out above with respect to Count 12, the prosecution opened on the basis RH would give evidence of an act of penetration. If RH had given a statement before trial consistent with the prosecution opening and inconsistent with his evidence, that prior statement was not the subject of cross‑examination. Strictly, no prior inconsistent statement was proven, and RH was not given the opportunity to comment on any potential prior inconsistent statement.[567] Nevertheless, there is authority that suggests I should assume that the opening establishes a prior inconsistent statement notwithstanding the absence of relevant cross‑examination and formal proof of a prior inconsistent statement.[568]
[567] Evidence Act 1929 (SA) ss 28 and 29.
[568] MAS v The Queen (2013) 118 SASR 160 [91]–[92].
One alleged prior inconsistent statement mentioned in submissions was not established. Contrary to the submission of the accused, I am not satisfied that RH admitted that the first time he had said that he had seen the breasts of JS touched was in evidence. RH said:[569]
QI suggest that the first time you’ve said that you saw fondling of [JS’s] breasts by [the accused] is here today in court. I’m just talking about when you first said that.
AYep.
QI’m suggesting it’s today, do you agree or not.
AI don’t know, you can suggest what you like, I seen what I seen and it had happened.
[569] T697.37–T698.5.
In the first answer above, RH was merely acknowledging the question. His second answer was clear, he did not know whether he had made the statement suggested. Nevertheless, in terms of prior statements about his sisters (including JS), it remains the case that in 1998 RH stated that he had not seen the accused sexually assault any complainant and in 2019 he only made reference to an assumption about conduct of that type.
Further discussion
RH gave evidence in a very matter of fact way. There was nothing in the way he gave his evidence which caused me to doubt his credibility or reliability.
As set out earlier, there is evidence that RH was present at a meeting attended by several complainants in about 1997 or 1998. RH gave evidence that he was aware of allegations of sexual abuse having been made by DG, LH, JH, JP and CB, but not the detail.[570] RH said that he was aware of JS having said she was touched on the vagina and breast.[571] Each of LH, JP, JS and CB have said that they were sexually assaulted by the accused in their bedrooms at night. I am unable to exclude the possibility that RH was aware of at least that location having been alleged by at least one or more complainant by about 1998. It is possible that in revealing the fact of sexual abuse a complainant might reveal something of at least the general circumstances in which that occurred. At the very least, before he gave any statement to the police, there is a real possibility that RH knew that other complainants were claiming to be victims of sexual abuse by the accused in their bedrooms at night.
[570] T680–T683.
[571] T683.23–24.
The inconsistent statements made by RH as to what he had seen happen to JS and MW are important. That said, as observed, there is possibly some support in the evidence of JS for her having been abused in the presence of a brother, but she did not identify which brother. If the occasions JS recalled was the occasion of her ninth birthday, RH would have been only three years of age. It is unlikely RH recalled that occasion in his evidence.
It must also be observed that RH would have been in his early 20’s in 1998 and that what he said in evidence he had seen had occurred several years before. That his mother was still alive and he had a desire not to deal with what had occurred is not an unlikely explanation for not making an allegation of abuse of him in 1998. Nevertheless, there is not just the inconsistent statement about abuse of himself in 1998, there is also the inconsistent statement about not seeing the accused assault another at the same time and the inconsistent statement in 2019.
In 2019, it can be observed that RH did allege at that time the accused knelt at the bed. What he described seeing in evidence is not wholly inconsistent with what he said in the statement in 2019, but the account of RH has changed from the accused having opportunity and RH making an assumption, to one of seeing both MW and JS sexually assaulted. In my view, it is significant that more than 20 years after the statement in 1998, RH only said that he assumed that the accused was abusing someone while RH was in the room. That is different to RH’s evidence in court and a statement made long after the shock RH said he was experiencing in 1998 might have passed.
The absence of evidence from MW about RH being in the room when any sexual touching occurred has some significance when RH claimed to be in the bed on at least one occasion. It might be one thing not to know, or recall, that your younger brother was in another bed, or under a bed, it might be another thing to not recall that he was next to you when you were being assaulted. Even if the evidence of JS on this topic is considered, it went no further than the evidence I have summarised. That said, it would not be surprising if the memories of honest and otherwise reliable witnesses differed many years after things were said to have occurred.
Conclusion—Counts 10 and 11
Separately considered, I must be satisfied beyond a reasonable doubt that the specific acts alleged in Counts 10 and 11 took place beyond a reasonable doubt.
There were aspects of the evidence of RH which may be the product of a true and accurate memory. In particular, his evidence of how he responded to the first occasion by biting his fingers and not making any noise because he was scared;[572] and his evidence about attempting to leave on the second occasion.[573] When RH gave evidence about hiding in the shed having run from the house on the final occasion, I was left with the impression that was unlikely to be a detail he might have been imagined. That said, the evidence of what occurred before RH ran away was inconsistent with the prosecution opening.
[572] T669.22–24.
[573] T671.26.
The inconsistent statement made by RH in 1998 in failing to speak of what happened of a sexual nature to him is, in my view, significant in assessing his credibility and reliability. RH explained that statement in a way that is not inherently unlikely, but, as I have said, that is not the only inconsistent statement made by RH about the accused.
As with all witnesses, the passage of time is important. It provides an opportunity for RH to convince himself that something occurred which did not, to not recall accurately essential details of an event which occurred or even invent something which did not happen. Given that RH failed to complain about sexual assault of himself in 1998; failed to refer at the same time to the conduct of the accused to JS and CB in terms consistent with his evidence; and in 2019 referred only to an assumption of what was occurring when the accused knelt by beds; without using any propensity of the accused as a piece of circumstantial evidence and without engaging in improbability reasoning, I have been left with a reasonable doubt about whether the evidence of RH is truthful and reliable about the conduct the subject of Counts 10 and 11.
Relying only upon the evidence of RH, I am not satisfied beyond a reasonable doubt that the evidence RH was truthful and reliable about either Count 10 or 11.
I turn to consider the propensity of the accused and whether use of propensity as a piece of circumstantial evidence resolves the doubts that I have.
The propensity that I have identified earlier relates to girls in the care of the accused, not boys. That RH is a male does not mean that the accused cannot have a propensity which is relevant. It would be wrong to limit, in every case, a propensity to offend sexually against children to children of a single sex. The propensity I have earlier identified is one that is unnatural as it is sexual and relates to children. At least because it is a propensity which is unnatural, it would be wrong to immediately dismiss the existence of a propensity that related to a child of more than one sex. At the end of the day, I have not found it necessary to decide whether the conduct towards other complainants establishes that the accused had a propensity to take opportunities to offend in a sexual way towards any child in his care, regardless of sex, despite the risk of detection. Even if I assumed the accused had the propensity just described, which I strongly suspect is the case given the sexual acts involving other complainants that I have found proven beyond a reasonable doubt, and I used it as a piece of circumstantial evidence in the evaluation of the evidence of RH about Counts 10 and 11, my reasonable doubt about RH being both credible and reliable about both counts would not be resolved. I would still have a reasonable doubt about whether either act occurred because of the prior inconsistent statements in 1998 and 2019 and with respect to Count 12.
The evidence of RH has several similarities with evidence that I have accepted. As just examples: that the accused took the opportunity to sexually abuse a child in his care; in circumstances in which there was a risk of detection; and did so at night in the room of the child. What RH and other complainants described in relation to conduct by a father, or step‑father, is well outside ordinary human experience. There is an underlying unity between evidence given by other complainants and the evidence of RH. Nevertheless, as earlier set out, I cannot exclude that, before RH made any allegation of having been sexually abused by the accused, he knew something of what had been alleged by some other complainants. I cannot exclude that RH knew, before he made any allegation about sexual acts towards him by the accused that other complainants had alleged being sexually abused, at night, in their bedrooms by the accused. In the case of RH, I am unable to exclude that the underlying unity that exists is because of what RH was told by another complainant(s). It follows that it is inappropriate to engage in improbability reasoning.
For the above reasons, I am unable to accept the evidence of RH about Count 10 or 11 beyond a reasonable doubt. I find the accused not guilty of Counts 10, 11 and 12.
Conclusion
I find the accused guilty of Counts 1, 6, 7, 9 and 13.
I find the accused not guilty of Count 3, but guilty of Attempted Indecent Assault with respect to that count.
I give no verdict on Count 8 as it is an alternative to Count 7.
I find the accused not guilty of Counts 2, 4, 5 and 10–12 inclusive.
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