R v S, PM

[2023] SADC 83

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v S, PM

Criminal Trial by Judge Alone

[2023] SADC 83

Reasons for the Verdicts of his Honour Judge Allen 

7 July 2023

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

The accused elected for trial by judge alone on two counts of gross indecency, two counts of inciting or procuring a child to commit an indecent act and one count of maintaining an unlawful sexual relationship with a child contrary to ss 58(1)(a), 63B(1)(a) and 50(1) respectively, of the Criminal Law Consolidation Act 1935 (SA).

It is alleged that between 31 December 2004 and 1 June 2013, the accused committed the acts against his stepdaughters [B], [S] and [C] of gross indecency and inciting or procuring a child to commit an indecent act against [B] and [S] and maintaining an unlawful sexual relationship with [C] by engaging in two or more unlawful sexual acts with [C], namely: (a) inciting or causing or procuring her to touch him on his penis on more than one occasion; (b) inciting or causing or procuring her to masturbate his penis on more than one occasion; (c) inciting or causing or procuring her to touch his testicles on more than one occasion; (d) exposing his penis to her on more than one occasion; and (e) touching her breasts on more than one occasion.

Verdict:   Count 1 - Guilty;

Count 2 - Guilty;

Count 3 - Not Guilty;

Count 4 - Not Guilty; and

Count 5 - Not Guilty.

Evidence Act 1929 (SA) ss 34CB, 34M, 34P, 34S, referred to.
R v Nieterink (1999) 76 SASR 56; R v M, BJ [2011] SASCFC 50; Hoch v The Queen (1988) 165 CLR 292; R v Cassebohm (2011) 109 SASR 465; R v Maiolo (No 2) (2013) 117 SASR 1; R v W, PK [2016] SASCFC 5; R v R, PA [2019] SASCFC 19; R v England [2013] SASCFC 79; R v Jones [2018] SASCFC 80; McPhillamy v The Queen (2018) 92 ALJR 1045; R v MJJ; R v CJN [2013] SASCFC 51; R v C, CA [2013] SASCFC 137; MDM v The Queen (2020) 136 SASR 360; DES v The Queen [2020] SASCFC 32; Phillips v The Queen (2006) 225 CLR 303; R v Bonython-Wright (2013) 117 SASR 410; Sexton v The Queen [2022] SASCA 73; Hughes v The Queen (2017) 263 CLR 338; Murray v The Queen (2002) 211 CLR 193, considered.

R v S, PM
[2023] SADC 83

Criminal

Overview

1. On an Information dated 8 May 2020, S, PM is charged with the following offences:

   First Count

   Statement of Offence

   Gross Indecency. (Section 58(1)(a) of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   [S, PM] between the 31^st day of December 2004 and the 1^st day of January 2006 at Murray Bridge, committed an act of gross indecency in the presence of [B], a person under the age of 16 years, by exposing his penis to [B].

   Second Count

   Statement of Offence

   Inciting or Procuring a Child to Commit an Indecent Act. (Section 63B(1)(a) of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   [S, PM] between the 30^th day of January 2005 and the 1^st day of January 2009 at Murray Bridge, incited or procured [S], a person under the age of 17 years, to commit an indecent act, namely touching his penis.

   Third Count

   Statement of Offence

   Gross Indecency. (Section 58(1)(a) of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   [S, PM] between the 31^st day of December 2004 and the 1^st day of January 2009 at Murray Bridge, committed an act of gross indecency in the presence of [C], a person under the age of 16 years, by exposing his penis to [C].

   Fourth Count

   Statement of Offence

   Inciting or Procuring a Child to Commit an Indecent Act. (Section 63B(1)(a) of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   [S, PM] between the 31^st day of December 2008 and the 28^th day of November 2011 at Clare, incited or procured [C], a person under the age of 17 years, to commit an indecent act, namely touching his testicles.

   Fifth 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

   [S, PM] between the 28^th day of November 2011 and the 1^st day of June 2013 at Clare, maintained an unlawful sexual relationship with [C], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [C] namely:

   (a)inciting or causing or procuring her to touch [S, PM]’s penis on more than one occasion;

   (b)inciting or causing or procuring her to masturbate [S, PM]’s penis on more than one occasion;

   (c)inciting or causing or procuring her to touch [S, PM]’s testicles on more than one occasion;

   (d)exposing [S, PM]’s penis to her on more than one occasion; and

   (e)touching her breasts on more than one occasion.

2. The accused elected for trial by judge alone. For the reasons which follow, I find the accused guilty of counts 1 and 2 and not guilty of counts 3, 4 and 5.

   Elements of the Offence

   Gross indecency

3. The offence of gross indecency occurs when an accused commits an act of gross indecency in the presence of a person under 16 years.  The elements of gross indecency which the prosecution must prove beyond reasonable doubt are therefore as follows:

   1.     the accused must commit an act of gross indecency;

   2.     the act must be in the presence of a person under the age of 16 years;

   3.     the act must be grossly indecent according to contemporary community standards; and

   4.     the act must be committed by the accused with a sexual purpose or intent.

4. Consent is no defence to this charge; a child under 16 is incapable in law of consenting to gross indecency.

   Inciting or procuring a child to commit an indecent act

5. The elements of inciting or procuring a child to commit an indecent act are:

   1.     the accused encouraged an indecent act to be performed upon him;

   2.     the indecent act was performed; and

   3.     the person performing the indecent act was 17 years or younger.

6. I remind myself that an indecent act is one which has a sexual connotation which is indecent, having regard to contemporary standards of morality and decency.

   Maintaining an unlawful sexual relationship with a child

7. The offence of maintaining an unlawful sexual relationship with a child has four elements:

   1.      the accused knowingly maintained a relationship with the complainant during the period in which the particularised unlawful sexual acts occurred;

   2.      the accused was an adult during the period in which the particularised unlawful sexual acts occurred;

   3.      the complainant was a child and under the age of 17 years during the period in which the particularised unlawful sexual acts occurred; and

   4.      the accused intentionally committed two or more of the particularised unlawful sexual acts during the course of the relationship with the complainant.

8. Elements one, two and three were not in dispute at trial and are established beyond reasonable doubt. Element four was the issue at trial but it was not disputed that each of the particularised acts would amount to an ‘unlawful sexual act’. The question is whether the prosecution has proven beyond reasonable doubt that the accused intentionally committed two or more of the particularised unlawful sexual acts.

   Preliminary Legal Directions

9. Having conducted a trial by judge alone, it is unnecessary to set out the various standard directions that would be given to a jury. Nonetheless, I remind myself of the following rudimentary principles.

10. The standard of proof is beyond reasonable doubt. The prosecution bears the burden of proof. The accused is presumed to be innocent unless and until the evidence satisfies me that each element of the offence has been proven beyond reasonable doubt. It is not sufficient for the prosecution to show a suspicion of guilt, or to demonstrate that the accused is probably guilty. The accused is not required to prove that he did not commit the offence with which he is charged.

11. The complainants, [B], [C] and [S], their mother, [MP] and [GD] gave evidence with special arrangements in place. I must not allow the fact of these arrangements to influence the weight that I give to the witness’s evidence. I must not draw an adverse inference against the accused as a result of the fact that these arrangements were in place.

12. The accused did not give evidence. The accused’s silence cannot be used against him. I must not draw any inference adverse to him from the choice not to give evidence. I must not treat his silence as an admission, nor must I use it to fill gaps in the prosecution case.

    Background

    The Complainants

    [B]

    Background

13. [B] was born on 24 June 1991. She is the oldest of the three complainants.

14. [B] was 10 or 11 years old when she first met the accused. At that time, she was living with her grandmother in Murray Bridge.

15. Towards the end of year 7, or beginning of year 8, they, being [B], her sisters [C] and [S], and her mother, moved into the accused’s house. They lived there for about a year before they moved into a house that her mother had built on Christian Road.

16. In cross-examination, [B] confirmed they moved into this house before the accused and her mother were married.[1] It was suggested they moved to Christian Road in October 2005 for a few months and then they were flooded out and moved back to the accused’s house. She denied this and said they had not moved into the house yet when it flooded.[2]

    [1]     T39.

    [2]     T40.

17. When they lived at the accused’s house, [B] lived in a caravan in the backyard. The accused and her mother shared a bedroom inside the house. Her sisters [C] and [S] also shared a room inside the house. Once they moved to the house her mother built, each child had their own bedroom.[3]

    [3]     T15.

18. [B] completed her schooling at Murray Bridge.

19. Her mother worked at the golf course in Murray Bridge at the time. She worked in the kitchen, doing a lot of split shifts and night work. While her mum wasn’t home, the accused would look after the children. She recalled her mother working quite a bit.[4] The accused never worked. He was at home with them during the day. If her mother was working, the accused would pick them up from school and he would be there when they got home.

    [4]     T15.25.

20. [B] would prepare dinner a lot, otherwise her mother or the accused would. [B] would get the lunches ready. The accused was very strict in their appearance for school. She described it as ‘military style in our upbringing’.[5]

    [5]     T17.3.

21. When [B] finished year 11, they moved to Clare. She moved out of home around that time.

    Parenting and discipline

22. The accused was very strict. He would make them do sit-ups, push-ups or jog a lap around the block as punishment. They would be punished for not listening.

23. [B] gave an example where he had planted a hair tie on the floor and saw [C] walk past it. He grabbed her by the hair and pushed her face into the floor. He told her she was not to walk past things when she saw them on the ground. In cross‑examination, [B] said she did not see him put the item on the floor, but he would do that. He put her face into the ground like she was a dog and would tell her off.[6]

    [6]     T71.15.

24. If there was giggling at the kitchen table or did not eat everything on their plate, they would be put in the laundry or sent out of the front of the house. [B] described an occasion where her grandparents had come over for dinner. They were joking around and someone flicked whipped cream, and there was sit‑ups or push-ups as punishment.[7]

    [7]     T18.33.

25. She recalled an occasion where the accused head-butted her because she would not say that she had touched something on his desk.

26. On another occasion she refused to pick up some golf balls, and the accused pushed her over. Her mother was present and sided with the accused.[8]

    [8]     T19.25.

27. When they were residing in Clare, there was an incident where her mother was working at the pub. The accused’s parents were staying over, in her bedroom. She went into her bedroom to get her camera. The accused grabbed her and told her she was not to go into the bedroom while his parents were there. She said that she was just getting her camera. The accused dragged her out of the house and held her up against the brick wall outside the house. He was shaking her and slamming her head against the brick wall. She sat down and was crying outside while the accused went inside. He then came back out and stood on her fingers on her hands, which was on the ground. He was lecturing her while she said ‘can you get off my hand? Can you please get off my hand? I am not going to listen to you while you are standing on my fingers’. The accused kept saying she was not listening to him. He grabbed her again and dragged her to the side of the house, threw her over some bushes and pinned her to the ground while shaking her.[9] After that incident, [B] told her mum what had happened and said she was going to tell the police. Her mother asked her not to and she didn’t.

    [9]     T19-20.

28. She described other occasions of being dragged from the caravan into the house and being shaken or tossed around. He would drag her from the caravan into the house by her hair. She recalled him telling them off a lot, and kicking the girls out of a car, but could not remember other specifics.[10]

    [10]   T21.

29. [B] felt she received the cruellest treatment from the accused. The girls were younger and more compliant than she was. She described her mother as like a puppet.

30. She would predominantly do what she was told but would occasionally stand up for herself, which was what resulted in the head-butting incident.

31. Tabasco sauce on the tongue was often used a punishment for swearing.[11] In cross-examination it was suggested that on this occasion, the accused said whilst they were having dinner, they threatened to put hot mustard on her tongue or wash her mouth out with soap. She said he put Tabasco on their tongues. It was suggested that [S] said ‘is there any hot mustard in the house’ and the accused said, no but there is tabasco. [S] asked if she could try it and the accused said okay only one drop, and it was part of a humorous exchange. She denied this.[12] She said the Tabasco incident happened on more than one occasion.[13] She did not remember whether she complained about the Tabasco sauce to the school counsellor. In re‑examination she said the Tabasco was used more than once on all of the children.[14]

    [11]   T25.

    [12]   T71-72.

    [13]   T76.

    [14]   T80-81.

32. In cross-examination, [B] said that the accused was never a yeller. He had a very calm and domineering mannerism about him.[15]

    [15]   T55.36.

33. It was put to [B] that her and her sister [C] had said precisely the same words in their statements about discipline techniques used by the accused. She said she had no idea what [C] said in any of her statements. She agreed the words were the same. She said she had not spoken to her sisters about what was in their statements, but they had all seen those things happen to one another.[16]

    [16]   T65-66.

34. In re-examination, [B] said that the statement was not her exact words. She told the police the story and they put it down there. They never raised the need to put her story in exactly her own words.[17]

    Nakedness

    [17]   T79.

35. Nakedness was encouraged at the house at Murray Bridge. She did not feel comfortable with it, being a bit older. Her younger sisters were. They were encouraged to sleep without underwear on and the girls bathed with him regularly. She said she physically saw [C] showering with the accused. It occurred up until she was in primary school, at the Christian Road house.[18]

    [18]   T22.12.

36. In cross-examination, [B] agreed she did not mention nudity in her first two statements.[19] She denied ever having discussed the issue of walking around naked with her sisters.[20]

    Sexual misconduct

    Examination-in-chief

    [19]   T58-59.

    [20]   T70.

37. When [B] was in year 8 of high school, at the Christian Road house, she was sitting in the lounge room watching TV. The accused was sitting in his recliner chair wearing a dressing gown with nothing underneath. She was sitting on the big lounge across from him.

38. She could not remember how it all came about. It was conducted as a sexual education type thing. He was talking about what happens to a man when he gets excited. He opened his dressing gown and exposed his erect penis. He asked if she wanted to touch it. She felt really scared and said no. He said ‘okay, no’. She then left the room and went into her bedroom. She recalled sitting against her bedroom door and feeling scared.[21]

    [21]   T23.

39. [B] felt that the accused was more cruel to her after that than he was to her sisters. She could not recall whether this occurred before or after her mother and the accused got married.

    Cross-examination

40. In cross-examination, [B] agreed that the accused and her mother were married on 24 September 2005.

41. She said that the accused was on a leather recliner. She was sitting on top of the couch across from him. She drew a diagram of where the various furniture was in the room, and where they were seated. The room was an open plan living area attached to the kitchen. There was one door attached to the room which went to a bedroom.[22] This drawing was tendered as Exhibit D1.

    [22]   T29-31.

42. At the time this occurred her sisters were both home but were in bed. It occurred after dinner at night-time. She did not know what time. She recalled watching TV. The accused was possibly wearing a grey dressing gown, but she did not have a clear memory of the colour. She did not remember what he was doing with his hands. She said she had a distinct memory of the incident that occurred but not why it happened or what led up to it, or smaller details.[23]

    [23]   T32.30.

43. [B] believed she was in year 8 or 9. She specifically remembered it was early high school. She agreed she was about 13 or 14 and that she had entered puberty at that stage. She did not recall what she was wearing.

44. She did not remember the accused ever having spoken to her about sex or anything sexual prior to that event. She had seen the accused naked before that, not in any sort of sexual circumstances. She agreed this was a one and only event.[24]

    [24]   T34.

45. It was suggested that they moved into the Christian Road house after the flood in May or June 2006. She said she did not remember years. It was put that she was 15 years old and in year 9. She said she did not remember years and agreed that it could have happened in year 9.[25] She did not know what time of year it was.

    Moving to Clare

    [25]   T40-41.

46. [B] was around 17 when they moved to Clare. She had finished high school. She lived there for about six months to a year. The incident with the camera occurred at Clare.

47. Before she moved out, the accused barely spoke to her. She was at home as little as possible as she did not want to be in the house or around him. She was kicked out of the house when she was 18. She came home one time and the house was locked. She went through a window. Her bedroom had been packed up and her things put in the shed. She was told to leave.[26]

    [26]   T24.15.

48. [B] moved to her father’s house in Strathalbyn after that.

49. She was not aware that her mother and the accused had separated until much later when she went up to visit. She went years without speaking to them.

    Complaint

50. The first person [B] spoke about the occasion where the accused exposed himself was to [S]. She posed it as a hypothetical, as in ‘if this happened would you tell mum’.[27]

    [27]   T25.4.

51. In cross-examination, [B] said she was at her father’s house at the time of this conversation. They were living at the Christian Road house in Murray Bridge at the time.[28] She said ‘I’m pretty sure I said – I just said ‘If [the accused] had shown his penis to me and asked me to touch it would you tell mum’ and she said ‘yes’. I said ‘It didn’t happen’.[29]

    [28]   T35.

    [29]   T36.3.

1. The first person she actually told was a girl named [JK] who she worked at Subway with. She said ‘I told her about the relationship with [the accused], how horrible it was being at home and I am pretty sure I told her the story of what happened’.[30] She did not specifically remember the words but that she had said he exposed himself to her and she wouldn’t touch him.

   [30]   T25.13.

2. In cross-examination, [B] said she worked at Subway after they moved to Clare. She would hang out with [JK] outside of work and she recalled telling her about her home life and about the incident.[31] She also told her friend [T] who she worked at Subway with. She did not spend much time with him outside of work. She did not recall if she told [T]about the incident or whether it was just about how the accused was at home.[32] She said she had not spoken to [T]for years.

   [31]   T35.

   [32]   T36.

3. It was put to [B] that she was not the first of her siblings to complain about the accused. She agreed. She agreed she spoke with Detective Holmes in a room with her mother and sisters on about 13 April 2017. She said she had already given a statement to Officer Kuchel at that time.[33] It was put her statement was taken on Monday 8 May 2017. She agreed.

   [33]   T42-43.

4. It was suggested that the statement occurred after they had a discussion at her mother’s house. The meeting was to discuss what would happen if they were to proceed with their statement. She said she had already given a statement to police.[34]

   [34]   T44-45.

5. This occurred after her mother and the accused had separated. She did not believe they were speaking to each other at that time. She agreed her stepfather had caused severe financial embarrassment to her mother but said she was not aware of her financial situation. She denied being annoyed at the accused. She admitted she didn’t like him but said she was not angry.[35]

   [35]   T45.

6. She did not recall all going to the police station together. She gave her statement by herself on 8 May 2017 at the Clare Police Station.

7. It was put that there was a meeting at her mother’s house three weeks before her statement, at a time when the only person who had made a complaint of a sexual nature to police was [C]. She did not recall the meeting being before her statement.[36]

   [36]   T48.

8. It was put that she gave her first statement to Officer Kuchel at a time that her mother and the accused were having a lengthy fight in the Family Court over a number of matters. She said this was not to her recollection.[37]

   [37]   T48.22.

9. [B] was asked whether she maintained contact with Detective Holmes throughout the investigation. She only did so before he retired. She did not recall him attempting to contact her on occasions without her responding. She was asked whether there was an occasion where she told him she did not wish to proceed with the matter because she was being pressured into reporting it by her mother. [B] rejected this and said she had in no way been pressured into making a statement. This was something she had purely done for her sisters and herself.[38]

   [38]   T49.4.

10. [B] was asked whether she told [C] what the accused had done to her at the end of 2015. She could not remember when but she had a conversation with her about what happened to her and asked [C] if anything had happened to her. Her demeanour was ‘quite off’. She was quite upset but said no. [B] did not complain about the physical abuse to [C] in that conversation.[39]

    Cross-examination about statements

    [39]   T55.

11. [B] was taken through her statements. It was put that there was a lot of criticism of the accused in the statement. She said it was not criticism, it was statements of his actions. She accepted she described him as being cruel. She accepted she told police she had complained about him to her school counsellor. It was a counsellor at Francis de Sales College, which she attended from halfway through year 10, to year 11.[40]

    [40]   T51-52.

12. She spoke to the counsellor after the incident involving the showing of the penis. She agreed she did not tell the school counsellor about it. She would talk to other adults about the accused’s cruelty and disciplinary actions.[41] She did not recall which adults. She agreed she did not make a complaint about him exposing his penis to other adults. She was petrified of him.

    [41]   T53.

13. She did not recall telling the counsellor she had bulimia because of the accused.

14. In re-examination, [B] was asked why she didn’t tell her mum. She said her mum did everything he said and would always be on his side. She didn’t think she would believe her and life was unpleasant enough and she didn’t want to make things worse. [42]

    [42]   T78 .16.

15. [B] agreed she gave her statement on 15 April 2019 at her house in Clare. Her sisters would have all been at the house but would not have been present while giving statements. They lived at the house together. They went into different rooms while the other was giving their statement.[43]

    [43]   T68.

16. It was suggested to [B] that neither she or her sisters on any occasion were grabbed by the accused. She denied this. It was put that her account of him showing his penis was false. She said that is not true. It was suggested they got together and made this up because they disliked the accused. She denied this.[44]

    [44]   T77.

17. [B] denied that the accused causing her mother financial embarrassment affected her. She did not have a particularly close relationship with her mother.

18. It was put that the accused was never physically violent. She said that was not true.

    [C]

19. [C] gave evidence via CCTV with a closed court.

    Background

20. [C] was born 12 May 2000. She was 22 years old at the time of giving evidence. She was 3 or 4 years old when the accused first arrived on the scene. She was living with her grandmother at Charles Street Murray Bridge at the time.[45]

    [45]   T83.

21. At some point they moved to the accused’s house. She lived in the house, while her sister [B] lived in the caravan. They then moved into a new house her mum had been building on Christian Road. She believed they were married when they moved into Christian Road.

22. After that house, when [C] started year 4 they moved to Clare.[46] She believed it was 2009. They stayed at a house in Burton Street for two years before moving to a house at Emu Flat Road, in about 2011. She lived at the Emu Flat Road house with her mum, [S] and the accused. [B] was not there.[47] They then moved to a house on White Hut Road when she was in around year 6 or year 7. The accused moved out of the house when they were living in a different house in Koolunga.[48] At that point, [S] had also moved out and it was just her and her mum.

    [46]   T84.

    [47]   T85.

    [48]   T85.32.

23. [C] played netball at school for only two seasons, when she was about 9 to 11 years old.[49]

    [49]   T86.

24. In cross-examination [C] was asked about schooling and dates. She agreed she started at St Joseph’s Murray Bridge in 2005, and would have been there in 2006, 2007 and 2008. She then went to St Joseph’s Primary School in Clare in 2009 when she was eight or nine years old. She stayed at that school until she finished year 7. She then went to high school in Clare. She dropped out in year 11, in around 2016.[50]

    [50]   T100-101.

25. [C] agreed the first house she lived at with the accused was his house with the caravan. It was suggested they moved to Christian Road Murray Bridge in 2005 when she was about 5. She said she could not be sure but it would have been around then. She was asked whether she remembered moving into Christian Road for a short period of time and then they had to move out because of a flood. She recalled a flood but did not remember if they were living in it or if the house was being built whilst it was flooded.[51]

    [51]   T101.33.

26. Her mother worked at the Murray Bridge golf club. She would do afternoon shifts and dinner shifts. She worked quite a bit.[52] It was close to their house. In Clare she worked at the Taminga Hotel, close to five to six days a week.[53]

    [52]   T102.

    [53]   T103.

27. It was suggested in cross-examination that her mother was always home before she went to school when at Clare. She denied this. It was suggested that her mother did a luncheon shift at the Clare golf club and she was home by about 8.30 during the weekdays. She did not know.[54]

    Discipline

    [54]   T133-134.

28. [C] got along well with the accused at first. She didn’t recall [S]’s opinion but knew that [B] did not like him.

29. The accused would put Tabasco sauce on their tongues at Murray Bridge. If they said something he considered rude or that he didn’t like he would do that. It happened to her and she saw it happen to [S]. She did not recall seeing it happen to [B].[55]

    [55]   T87.

30. At mealtimes, if they did not finish their plate in an appropriate amount of time or if they did not like what they were eating they would be sent to the laundry. They would sit on the floor and eat their dinner in the laundry. If they sat in the laundry for a long time and hadn’t finished their dinner, they would be hit on the bum or their hands and then would be sent to bed.[56] It happened to all of the kids. There were no occasions that stood out, it was always a terrible time when they were sent to the laundry. Her mum was generally not home when this was happening as she worked a lot.[57]

    [56]   T88.

    [57]   T88.18.

31. In the mornings, her sister [B] was responsible for getting them up and ready for school. Either [B] or [S] or would organise the lunch boxes. When she was old enough she would make it herself.

32. The accused was responsible for their presentation for school. If they had a bump in their hair or the uniform didn’t look tidy enough or the socks looked daggy, he would make them change. This would vary on his mood. If he was in a good mood, he would just ask them to fix it and they would fix it in the bathroom themselves. If he was in a bad mood he would yell, ask them who they were trying to impress if they had lip balm on. He would grab them by the hair sometimes and drag them back to the bathroom to fix it.[58]

    [58]   T89.1-17.

33. The way he acted was consistent between Murray Bridge and Clare.

34. The accused was physical in disciplining. They would sometimes be hit on the hands with a metal ruler, the number of times would depend on what he saw fit for a punishment. He would often get right up in their face and poke their chests or head and would raise his voice. He did that to all three of them.[59] It would happen multiple times throughout the week in both Murray Bridge and Clare. She felt quite scared of him. [B] and [S] got a lot more punishments than she did.[60]

    [59]   T89.

    [60]   T90.8.

35. [C] described an occasion where [S] had a bump in her hair one day before school. She argued with the accused about fixing it and tried to walk out of the house. He grabbed her and took her outside and sprayed her down with a hose. She did not recall where exactly he grabbed her.[61]

    [61]   T90.12.

36. [C] described an occasion at the house in Clare when she walked past a hair tie that she didn’t see on the ground. The accused must have seen it and grabbed her by the back of her ponytail and pushed her to the ground and asked her to pick things up when she saw them. That made her feel scared.[62]

    [62]   T90-91.

37. She described an occasion at the Burton Street house in Clare where [B] and the accused had gotten into an argument, and they had taken it outside. She saw the accused pinning [B] against the concrete wall by the throat. He used his hand. She did not recall how long it went for, she believed she left after she saw it.[63]

    [63]   T91.8.

38. No severe discipline happened when her mum was around. Her mum and the accused seemed to get on fine. Every now and then they would bicker but she never saw them fight.[64] Her mum would often agree with what the accused said. She barely disagreed.[65]

    [64]   T91.25.

    [65]   T93.13.

39. When they lived at Emu Flat Road in Clare [C] had gone to a friend’s birthday party and she brought gum boots. She didn’t realise they had a hole in them at the time so when she returned home with her friend [A] (who was staying the night), the accused discovered she had wet socks and had been wearing broken shoes. She was taken into the laundry and spanked on the bottom.[66]

    [66]   T91.33.

40. [C] described an incident when she had found some pawpaw and put it on in the morning before going to school. The accused caught her on the way out and dragged her by her hair back to the bathroom. He scrubbed it off her lips with a flannel and asked her things like ‘who are you trying to impress’. She believed she was in year 5 at the time.[67]

    Showering with the accused

    [67]   T92.9.

41. When the accused first moved in with the family he would often help shower and wash the children with flannels when they were younger. He continued to take an interest in showering and bathing them when they were older. She did not recall a specific time where she would shower with the accused at Christian Road but remembered clearly having a shower with him at Burton Street.[68] She also remembered showering with the accused at White Hut Road. The frequency would vary, it could have been once a week, sometimes once a month, sometimes two days a week. She believed she was about 11 or 12 when she last had a shower with the accused.[69]

    [68]   T92.36.

    [69]   T93.

42. In cross-examination, it was suggested that the only time she showered with the accused was when [MP] was home. She denied this. It was suggested that it only occurred when [MP] put her in the shower with the accused. She denied this.

    Sexual contact

43. The first instance of sexual contact [C] could recall was at the Burton Street house. She had just finished a game of netball. She believed she was sick with a cold. She had just finished her game and had returned home with the accused to have a shower and get dressed in warm clothing.[70] She believed her mum was either at work or at the netball court still but couldn’t quite remember.

    [70]   T93.30.

44. It was very cold and had been raining. The accused suggested they have a shower together, which she agreed to. She didn’t see anything wrong with it at the time. After the shower, the accused rubbed some Vicks on her chest and back and then asked her to touch his testicles. She asked why and he said he wanted to see how many that were in there and asked if she could count them for him. She felt his testicles for about 5-10 seconds and confirmed there were two. She believed he asked after that if she could double-check, and she did so for another 5‑10 seconds.[71] The accused was in a happy mood, it was in more of a joking way.

    [71]   T94.23.

45. He had all of his clothes off in the shower, as did she. They both washed with soap and water. She did not recall seeing an erection.[72] After the exchange the accused told her to go to her room and change. She did not tell anybody at the time because she thought it was normal.[73]

    [72]   T95.8.

    [73]   T95.14.

46. She believed that happened at least two times more when they stayed at that house.

47. She did not recall it happening at the Emu Flat Road house.

48. It happened maybe five or six times at the White Hut Road house.

49. [C] described an instance that stood out. Her and the accused had just showered and he was laying on the bed. He asked her to hold his penis and move her hand up and down to see what would happen. She believed he had an erection at the time.[74] She recalled this happening twice.[75] On the first occasion she touched his penis it was flaccid when she started touching it and then after he had an erection. That was the first time she had seen an erection. She did not see him ejaculate, she believed she only did it for about 15-20 seconds and then went to her room to get dressed.[76] She did not ever see the accused ejaculate.[77]

    [74]   T95.

    [75]   T96.3.

    [76]   T96-97.

    [77]   T97.7.

50. In cross-examination, [C] said the penis touching was at White Hut Road not at Burton Street, the two times she remembered.[78]

    [78]   T106.26.

51. [C] believed the fondling of the testicles happened about the same amount of times, about four or five. It always followed the same pattern. After they had showered and left the bathroom he would stand to get changed, ask her to feel his testicles and ask how many there were. It became a joke and if he asked, she knew what to do. It seemed normal at that point.[79]

    [79]   T96.

52. In cross-examination, [C] said the touching of the testicles happened four or five times at Burton Street and about the same at White Hut Road.[80]

    [80]   T106.

53. When she was about 11 or 12 at White Hut Road, when she was getting older and developing, the accused would touch her nipples and comment on them being more developed. She believed that happened maybe three or four times. It was usually after or before she was touching him but not at the same time.[81]

    [81]   T97.

54. In cross-examination, [C] said this happened when she was not wearing any clothes.[82]

    [82]   T109.19.

55. When [C] was in year 7 she began going through puberty. As she got to year 7 she got her period and had started to develop. She did not want to shower with the accused anymore. It started to make her uncomfortable so she would refuse his request when he asked if she would like to shower with him.[83] He kept asking for a couple of months and then he eventually stopped asking.

    [83]   T97.32.

56. [C] was asked what time of day this occurred in cross-examination. She said it could happen at any point in the day. It just depended on the day. It was usually when no-one else was in the house. It was both weekdays and weekends. She did not know how many times it happened at night, in the afternoon or if it happened in the morning. It was always after a shower, at both houses.[84] It always happened in his room next to the ensuite.[85]

    [84]   T113-114.

    [85]   T115.

57. Later in cross-examination, [C] was asked some questions about showering and the bathroom at White Hut Road. She was then asked what she was doing before the first occasion occurred. She believed it was a weekend and she was home alone all day with the accused and she was helping him build fences in the front yard and look after animals. She did not recall what she was doing before the second occasion.[86]

    Nakedness

    [86]   T134.27.

58. When they were at the house at Murray Bridge, they were often encouraged, especially when they were younger and during summer, to walk around naked and to sleep naked. The accused told them it was healthier and it wasn’t healthy to wear clothes especially during sleeping.[87]

    [87]   T98.6.

59. If they had a shower it was not unusual for her or her sister [S] to walk naked from the bathroom to the bedroom. The accused would often walk around the house naked. Her mum would walk around naked as well, a little, mostly going from the bathroom to get something. She did not recall ever seeing [B] walking around naked.[88]

    [88]   T98.

60. In cross-examination, [C] agreed that her, the girls, her mother and her accused would walk around the house naked.[89]

    [89]   T132.17-25.

61. She did not recall whether the accused had a dressing gown. She recalled seeing him wearing one in winter.[90]

    Complaint

    [90]   T132.28-32.

62. [C] did not ever tell her mum about it after she had touched his penis. She was asked why and said ‘I wasn’t – I am not quite sure why I think I – it was normalised at that point to touch him in that area and, I don’t know, I just felt weird talking to my mum about that at the time as I was a bit older’.[91]

    [91]   T98.33.

63. [C] believed the first person she told was [GD] but giving her statement to police would have been the first time she went into the full story. They had been living at Agnes Street and [GD] was working at the Subway with [C], [S] and their mother. She was having family problems at home so her mum offered her the spare room in their house. She was still living with them at the time [C] made her disclosure to police.[92] It would have been in 2014 or 2015.

    [92]   T99.

64. In cross-examination [C] agreed she spoke to [GD] when she was staying with them at Agnes Street. She then spoke to her school counsellor Mrs Knight and then Clare police.[93] She agreed she had told her mother as well. She did not recall how many times she spoke to [GD] about the sexual matters, she remembered one time clearly but said ‘it was often that we would make passing comments about it as she grew up with a bad life and sometimes we would speak about it together but I couldn’t give you a number sorry.’[94]

    [93]   T108.35.

    [94]   T109.5.

1. She told the school counsellor Mrs Knight in 2016, possibly 2015. It was before she gave her first statement but she couldn’t say whether it was months or weeks.[95] She believed she told the school counsellor about the sexual abuse briefly but didn’t go into detail. She spoke to her about how she was struggling with school at the time and she gave her a bare minimum brief of the sexual abuse.[96] She went to the counsellor because she didn’t know how to tell her mum and wanted some help from her and advice. She told the counsellor who it was. Mrs Knight asked more detail about what had happened. [C] did not answer the question because she was not comfortable. Mrs Knight did not mention that she was obliged at law to report this to the police. [GD] was with her. She believed she was writing notes.[97]

   [95]   T109-110.

   [96]   T110.20.

   [97]   T111.

2. It was put to the witness that she was making up the fact she complained to Mrs Knight. She denied this. She said she went into her office with [GD] and briefly told her what was going on and mostly asked her advice on how she could tell her mum.[98]

   [98]   T111.32.

3. [C] was asked further what she actually told [GD]. She said she talked about the punishments the accused would give them. She didn’t go into detail of the sexual abuse but did tell her she was sexually abused and didn’t know how to tell her mum, and then she helped her with going to Mrs Knight. She did not know if she told her any details about the showering and testicles. She did not tell her about the holding of the penis. She did not tell her about him touching her nipples. She denied saying that her stepfather was a ‘bit of a shitty guy who had ripped the family off financially’. She said he was abusive and a nasty man.[99] She denied telling [GD] he had touched her in inappropriate places both on top of her clothing and underneath her clothing. She denied telling her that he had inappropriately touched her in her genital area. She did not know if she told her that he became more aggressive over time and was doing worse things to her as time passed. She did not know if she could have told her that.[100]

   [99]   T112.

   [100] T112-113.

4. She denied telling her that penetrative sexual abuse had occurred or that he had penetrated her vagina with his fingers. She denied telling her it was progressing to a point where he was trying to coerce her to touch him. She did not know if she told [GD] she was the first person she had told about the sexual abuse.[101]

   [101] T113.

5. [C] said she did not tell [GD] that her stepfather would come to her at night‑time because that was not the case. She would have spoken to [GD] on multiple occasions about the other things. There was possibly more than one occasion where she spoke about the sexual abuse.[102]

   Cross-examination about statements

   [102] T115.

6. [C] agreed she gave her first statement to police on 12 February 2016 and signed it on 2 June 2016. She gave another statement on 15 April 2019 signed on 22 May 2019 and a third on 2 March 2020. The first statement was at the Clare Police Station, the second at Agnes Street and the third at Clare Police Station. The fourth was on 28 May 2021, signed on 10 June 2021 at the Clare Police Station, and a fifth on 3 August 2022 signed on 23 August 2022.[103]

   [103] T107-108.

7. [C]’s mother was with her when she gave her first statement to Officer Kuchel. She was present for the whole of the interview. She did not know how long she was there for. She was 15 years old at the time.[104] She told him as best she could.

   [104] T116.

8. She could not remember if she went into the police station to sign the statement or if he came to her house. She did not know what the delay was between the giving of the statement and the signing of the statement. She did not know if police endeavoured to contact her about signing it on a number of occasions.[105]

   [105] T117.

9. [C] was asked if she told police on 12 February 2016 that she was undergoing counselling. She did not know. She did not know if she told police the abuse occurred between the ages of 7 and 11. She could not be sure if it lasted over four years.[106]

   [106] T117.17.

10. [C] agreed there was a meeting sometime in 2017 at her house involving Detective Holmes. There were two occasions he came to speak to her at the Agnes Street house. She did not know when he spoke to them all as a group but agreed it did happen.[107]

    [107] T117.36.

11. She could not remember if she had a mobile phone in late 2016. She would have. She did not remember if she gave police her mobile number when they interviewed her.[108]

    [108] T118.12.

12. [C] was asked if the police made numerous attempts to contact her in the period following the signing of the statement through to the beginning of January 2017. She could not remember. She did not know if it was her mother in the end who told her to get in touch with the police in early 2017.[109]

    [109] T118.

13. At the meeting with Detective Holmes, which it was put was on 13 April 2017, when her sisters were present, he was explaining the process and what they would need to know, how court worked and their options for court. She knew her sisters had given statements to the police at that point.[110] She denied this was an occasion where her and her mother were talking them into giving statements to the police. They did not talk about the accused. The meeting was just to do with court.[111] She only spoke to the officer about abuse at the hands of her stepfather when she was giving her statements to him. [112] She did not remember how long the meeting went for or if anything was decided. [C] later could not recall whether the meeting was in fact in 2017.[113]

    [110] T26.

    [111] T119.35, 37.

    [112] T120.2.

    [113] T125.

14. She did not know whether she had any contact with the police between that meeting and her second statement of 15 April 2019. She was not sure whether the statement happened and then the meeting happened or if the meeting was before.[114] Her second statement was given at her home with just herself and her mother present. Her mother was there at the start but left the room when she was giving her statement.[115] She believed the statement was arranged through her mother.

    [114] T126.15.

    [115] T127.16.

15. She did not recall if Detective Holmes attempted to contact her in 2018.[116] She does not still have her phone from 2018. She did not recall her mother telling her that Detective Holmes was attempting to contact her at any stage in 2018. She denied telling Detective Holmes in about April 2018 that she no longer wished to proceed with the matter because she was being pressured into reporting it by her mother.[117]

    [116] T128.12.

    [117] T129.3.

16. [C] did not see the statement given by her sister [B]. She did not know that her sister gave a statement at about 5.40pm on the same day, being 15 April 2019.[118] She was not aware that her sister’s statement said the exact same wording as hers. She did not have any discussions with her sister about the matter before speaking to police. The statement was not her exact words, it was a summary of what she was saying.[119] In re-examination, [C] confirmed that each incident referred to in that statement happened when she was present.[120]

    [118] T129.33.

    [119] T132.7.

    [120] T141.

17. She denied showing her unsigned statement to her sister at any stage.[121]

    Incidents involving her sisters

    [121] T132.16.

18. [C] was asked whether she ever witnessed any sexual matters between the accused and any of her sisters. She denied this. She was asked: ‘Do you ever remember seeing the accused come out of the shower while you and your sister were on the bed, he had an erection and say ‘This is an erection. This is what happens when a male gets excited. You can touch it if you like’. She did not recall.[122]

    [122] T133.13-18.

19. She was asked if she recalled an incident where her sister [S] touched the accused’s penis in her presence. She did not.

    [S]

20. [S] gave evidence via CCTV with a closed court.

    Background

21. [S] was born on 23 September 1995. When she was born she lived in Murray Bridge with her grandmother. They then moved to a house belonging to the accused with a caravan in the backyard, and then moved to a house her mum built in Murray Bridge. They then moved to Clare.

22. [S] went to St Joseph’s Primary School in Murray Bridge. She went to Clare High School.

23. She did not recall whether her mother was married to the accused when they lived at his house. She did not recall when they were married.

24. When she first met the accused and lived with him, things seemed quite normal. He then became more strict and controlling.[123]

    Parenting and discipline

    [123] T146.18.

25. [S] said that they would have to follow the accused’s rules and if they didn’t there would be consequences.

26. An example of the consequences was Tabasco sauce in their mouths and push-ups. He would also hit them, mostly open-hand but also sometimes with a wooden spoon.[124]

    [124] T146.25.

27. She could not recall specifically what would cause the use of discipline, but it would be really minor things.

28. At meal time, they were made to eat everything. If they did not, they would have to eat on the laundry floor and were not allowed to come out until they had finished their food.[125]

    [125] T146.35.

29. [S] described one occasion when she had a bump in her hair before school, and the accused became quite physical with her. He wanted her to stay home all day and wash his car. She said no. He grabbed her and pulled or pushed her down the stairs, then picked up a hose. He was threatening to spray her with the hose. She got up to walk back inside and he pushed her up against a wall and was yelling in her face.[126]

    [126] T147.15.

30. [S] went to school upset that day and spoke to her counsellor. Her younger sister [C] was home at the time.[127] She later said she raised this with her mum.[128]

    [127] T147.24.

    [128] T147.27.

31. She described seeing [C] get hit by a wooden spoon.

32. She also saw conduct directed towards [B], but nothing in particular.[129]

    [129] T147.34.

33. They were all scared of the accused.

34. Their mum would take his side. If she ever stuck up for them, he would shut it down pretty quickly.

35. In cross-examination, [S] agreed that she made complaints about the accused disciplining her and how he disciplined them. She was asked when she became aware of how badly he treated them. She said she thought they always knew. It was suggested that it didn’t arise until after her mother and the accused split up. She disagreed.[130] Her statement was read to her which said ‘it wasn’t until after he and mum split up that we became aware of how badly he had treated us as at the time he had convinced me that what he was doing was okay and the way he was disciplining us was normal behaviour and that all adults treated there kids in that way which is why I never complained to mum’.[131]

    [130] T159.30.

    [131] T159.

36. Later, in cross-examination, [S] was asked about the Tabasco incident. It was suggested that only arose on a single occasion when the accused was telling her over dinner that his parents used to put mustard on his tongue. It was suggested she laughingly said she wouldn’t mind trying and the accused said there was no mustard but there was Tabasco. She said she did not remember that happening.[132]

    [132] T171.

37. It was put that her mother was also involved in the discipline and they clashed on occasions over discipline. She said no.[133]

    Nakedness

    [133] T171.31.

38. Growing up, they were encouraged not to wear clothes after having a shower or bath around the house and to bed. The accused would encourage that by saying they needed to let their bodies breathe. She could not remember how old she was the last time something like that was said.[134]

    [134] T148.11.

39. Later, in examination-in-chief, [S] described occasions when they would go into the accused’s room for a morning cuddle. They would lay on top of them and cuddle her mum and the accused while they were in the bed. Sometimes they were wearing clothes, sometimes they were naked. They were quite young and she could not remember what age.[135] It was called a koala hug.

    [135] T152.

40. In cross-examination, it was suggested that she did not tell police about the koala hug until 26 May 2021. She agreed. Her mother was also in bed at the time. There was nothing sexual about it. She said she told police about it because it makes her uncomfortable to think about now.[136]

    Sexual offending

    [136] T166-167.

41. [S] described an incident in the accused’s bedroom where ‘he had an erect penis and he kind of explained what it was and how it happens and then he asked if we wanted to touch it, which I did with a finger’.[137]

    [137] T149.2.

42. She described the touch as a poke.

43. She did not recall what had happened immediately before then.

44. She believed [C] was there.

45. She could not recall what either she or the accused were wearing.

46. It occurred at the Christian Road house at Murray Bridge when she was in around year 6 or 7.

47. That was the only occasion on which that occurred.

48. She could not recall what happened after that.

49. [S] was asked about this further in cross-examination. She did not recall what year she was in at primary school. It was on the accused and her mother’s bed. She did not remember what he was doing before he came to the bed. He came from the bathroom. She did not know why she was in his bedroom or why [C] was there. She did not think much of it at the time. She was not shocked. She did not say anything. She did not remember if [C] touched his penis.[138] She did not tell her mother about it because she didn’t think anything of it at the time. She did not tell the school counsellor; she was in primary school and was not having regular dealings with the counsellor at that time.[139]

    [138] T167-168.

    [139] T168.

50. In examination-in-chief, [S] then described an incident where she had hit puberty and wanted to shave her private area. She asked the accused for permission because they asked to do most things. She was not sure if her mum was present at the time.[140] He said she could do it but he wanted to show her how to do it first.

    [140] T150.11.

51. She was sitting on the edge of the bath and he showed her which way to use the razor. It was a normal razor. He shaved it using the razor going down and said not to go upwards.[141]

    [141] T150.34.

52. She did not recall what he was wearing at the time. She thought he was wearing clothes.

53. She believed she was in year 7 when this occurred. It was at the Christian Road house.[142]

    [142] T151.10-13.

54. In cross-examination, [S] was asked why she did not tell police about the shaving incident until her fourth statement, dated 26 May 2022.[143] She said it was because she was so embarrassed about it. She agreed it was a significant matter. She denied making it up. She could not remember if it was something that she remembered when she gave her first two statements. She said it was in her statement of 25 May 2021.[144]

    [143] T161-162.

    [144] T163.

55. [S] believed she was in year 6 or 7 at school when this happened. She was in primary school at Murray Bridge. It was suggested she made it up. She denied this. It was suggested that there was a conversation about shaving with the accused but it was about the shaving of the legs. She said that was not right.[145] It was suggested that her mother was in fact present during the conversation. She denied this.[146]

    Showering with the accused

    [145] T163.

    [146] T163.

56. It was common for her to shower or bath with the accused. She did not do so once they moved to Clare, so it was only when she was at primary school.[147]

    [147] T151.

57. The relationship changed when they moved to Clare as she started challenging him more and they didn’t have a good relationship.

58. In cross-examination, [S] agreed that she told police on 25 May 2021 that the accused would sometimes be in the bathroom when they were showering and bathing. She told police that because she thought it was wrong to be showering with children. She did not remember if she told police that before. She did not recall any specific occasion about that but that it happened often. It was part of the normal discourse around the house.[148]

    [148] T164.

59. It was suggested that in the 2021 statement she told police that she and [C] grew up bathing together and that there were occasions where her and [C] would bathe together and the accused would get in, and to make sure they fit, one of them would sit between his legs.[149] She said she told police because it makes her uncomfortable to think about. She agreed that nothing inappropriate happened and it was not sinister at the time. It was around the time in the Christian Road house.[150]

    Incident involving car

    [149] T164-165.

    [150] T165.

60. When [S] got older she would answer back to the accused. He would respond physically and would yell at her.

61. There was an incident when he left her and her younger sister on the side of the road. They did not know whether he was coming back. They felt scared. He eventually did come back and made them jump in the car while he was driving off.[151]

    [151] T151-152.

62. In cross-examination, [S] agreed her mother was there on that occasion. This happened on a single occasion. It was suggested the car did not drive out of sight and she could see it the whole time. She denied this. This happened on one occasion. It was suggested that when they reversed the car back she was laughing and thought it was a joke. She denied this. It was suggested that the car was not moving when she got back in the car. She denied this.[152]

    Complaint

    [152] T165-166.

63. The first person [S] told about the accused exposing herself was Officer Kuchel. She did not tell anyone earlier because it felt like an educational thing, and like it was normal at the time. She didn’t really question it.[153]

    [153] T153.4-7.

64. In cross-examination, [S] was asked if the first time she had mentioned that incident to anyone was to the police. She said she had spoken about it with her younger sister as she was present. She did not know how old she was, what she told her or if it was long before she went to the police.[154] She could not remember if she agreed with her that the accused had an erection during that incident.

    [154] T158.

65. She said ‘I think I asked her if she remembered it happening and she agreed. And that was the – that was it’.[155] It was suggested that she did not discuss it with her at all. She agreed.[156]

    School counsellor

    [155] T158.30.

    [156] T158.33.

66. [S] agreed she had regular dealings with the school counsellor in secondary school. She did not mention anything about sexual abuse to the counsellor.

67. She agreed she told the counsellor that he assaulted her on one occasion.

68. She said the counsellor was Mr Coulter and not Mrs Knight.[157] It was put that she told a counsellor about being locked out by the accused on a Friday night. She did not remember. It was suggested she told her mother she had not told the counsellor he locked her out. She did not remember. It was suggested she told her mother the counsellor had made up the allegation that the accused had locked her out of the house. She said no.[158]

    Cross-examination about statements

    [157] T171-172.

    [158] T272.

69. [S] agreed that when she gave her first statement she told the police as much as she could about matters involving the accused. She told them all she could remember about anything sexual and associated with the accused at the time.[159]

    [159] T159.

70. [S] agreed that in her first statement she got the Charles Street and Christian Road houses mixed up.[160] They moved around a lot and it was hard to keep track of the street addresses. They were different houses. She said she didn’t get the houses mixed up, just the addresses.[161]

    [160] T166.

    [161] T166.

71. In cross-examination, it was suggested to [S] that she had a meeting with Detective Holmes sometime in April 2017. She could not remember if she met with him before her first statement of 9 May 2017. There was a meeting where he spoke to her, her mother and sisters about the process of court and what happens but she could not remember if it was before or after her first statement.[162]

    [162] T173.

1. [S] was asked if her mother and the accused separated on 1 June 2013. She did not remember.

2. She was asked about what discussion took place after the separation. She agreed she spoke to her sisters about the accused’s behaviour towards her after he and her mother separated. She could not remember if she spoke to them about that after the meeting with Detective Holmes.[163]

   [163] T174.

3. She agreed she has spoken to her sisters about the accused’s physical behaviour. They do not talk about it often. She could not say if it was more than once.

4. She had not spoken to them about sexual behaviour. They spoke to each other about how they felt uncomfortable being naked around the house and that kind of stuff. They did not talk about any sexual activity other than nakedness.

5. It was suggested they had spoken about those matters. She said they had been told they were not allowed to speak to each other since their statements.[164]

   [164] T175.16.

6. She did not remember talking to her sisters about sexual matters before the meeting with Detective Holmes. She did not talk about it with her mother.

7. [S] was asked if her mother ever said her sisters made allegations and asked if he did anything to her. She said this did happen, at Agnes Street, when [C] was upset and locked herself in the bedroom. Their mum came out and asked if anything had happened. She did not remember saying anything to her in that moment.[165]

   [165] T176.

8. She did not remember talking to her sister [C] about sexual matters before she met with Detective Holmes. She did not tell Detective Holmes that her sister [C] was reluctant to proceed because she was being pressured into reporting it by her mother.[166]

   [166] T176.

9. [S] was asked if she had ever attempted to assault her mother. She said yes.[167]

   [167] T176.31.

10. In re-examination, [S] was asked if she had a discussion with [C] about the incident before she spoken to Officer Kuchel. She could not remember when they had the discussion but remembered asking her if she remembers it happening and that was all there was. That was the only occasion on which she spoke to [C] directly about the topic. Neither of them went into details on that occasion.[168]

    [168] T178.

    [MP]

11. [MP] is the mother of the three complainants. She gave evidence via CCTV.

    Background

12. [MP] was married to the father of her children. They separated when [C] was around 2 years old. After they separated she went to live with her mum in Murray Bridge. She got a job at the Murray Bridge Golf Club. In the course of that employment she met the accused, who was giving her daughters [B] and [S] golf lessons.[169]

    [169] T182-183.

13. She married the accused in 2005. Before they got married she moved into a house he had on the river with a caravan. The whole family moved there. From there they moved to a house that she was building. They moved before she was married.[170] The house was on Christian Road at Murray Bridge.

    [170] T183.

14. They lived at that address for roughly two years. They then moved to Burton Road in Clare, where they lived for about 12 months. They then moved to a property on Emu Flat Road, where they lived for 12 months. They then moved to White Hut Road for two years. They then moved to Koonunga. At Koonunga it was just her, [C] and the accused. She separated from the accused while living there. She then moved to Agnes Street in Clare.[171]

    [171] T183-184.

15. When the accused first started living with her and her daughters, they had quite a close relationship. He was a father figure to them.[172]

    [172] T184.

16. When she was working at Murray Bridge she was working long hours and doing split shifts. The accused looked after the children. He did not have any external employment. His work was trading on the futures market. She believed it was slightly successful.[173]

    [173] T184-185.

17. She was at home during the morning and would go to work mid-morning to begin lunch preparation. She would occasionally be home for school otherwise the accused would get the girls ready. Either the accused or herself would collect them from school and bring them home. He would get dinner ready as she would be doing dinner shifts at the golf club.

    Discipline

18. The accused did the majority of the discipline. She did not take issue with that at the beginning. At the beginning it was more shared. As she was working more, she conformed more to what he expected the discipline to be and left it to him. He was the boss of the house.[174]

    [174] T185.

19. He was controlling in what he expected of her and the girls. She changed a lot of things she enjoyed doing. She stopped smoking, drinking and ate food she didn’t like. Washing had to be hung on the line the way he wanted it.[175]

    [175] T186.1.

20. As the girls got older, their relationship with the accused changed. As they stood up for themselves more or questioned a punishment the relationship deteriorated. There was always a consequence to something they didn’t do correctly. If punishment was given by the accused, she did not get involved in the process.[176]

    [176] T188.

21. [MP] described an occasion when she was working in the Taminga Hotel on Mother’s Day. [B] came into work upset that the accused had held her against a wall around the neck. [B] had red marks on her neck. She sat [B] down and spoke to her as she was extremely upset. [B] gave an explanation.[177]

    [177] T188.

22. [MP] described an occasion when [S] made a complaint that the accused had pushed her down the stairs of their house at Burton Street, Clare. She raised it with the accused but did not recall if he gave an explanation.[178]

    [178] T188-189.

23. The accused could be very controlling and aggressive if he was upset.

24. At meal times the girls were required to eat everything that was in front of them. If it was not eaten there were consequences. [MP] described an occasion where [C] was taken to the laundry with her dinner plate and sat on the floor and told to stay there until she had finished. To her recollection that was not an isolated incident.[179]

    [179] T189.20.

25. Later, in examination in chief, [MP] was asked about how [B] came to move out when they lived in Burton Street Clare. The accused had asked her to leave. [B] had just turned 18 and was going out at night and drinking and coming home late. He had house rules he felt she was not obeying and she was told if she could not obey them then she needed to leave. [MP] went along with that at the time.[180]

    [180] T193-194.

26. Before [B] moved out, the topic of the kids misbehaving was raised from time to time. She routinely agreed with him. There were occasions when she didn’t. When that happened things would escalate more. He would become quite angry, and as a consequence she would agree with him more.[181]

    [181] T194.31.

27. In cross-examination, it was put to [MP] that the accused never raised his voice. She said that he did and he would yell at the girls.[182]

    [182] T194-195.

28. Later in cross-examination, [MP] agreed she did not remember any specific occasion of interfering with the discipline imposed by the accused on her daughters. It was suggested that was because she never saw an occasion that required her intervention. She said it was because she was weak and didn’t have the strength to stand up to him. She did not stand up to him on many occasions.[183] It was suggested if she had seen inappropriate methods of discipline she would have attempted to stop it. She said she should have but didn’t.

    [183] T216.17.

29. [MP]’s statement of 22 May 2019 was read to her, where she said she would have stopped him if she knew the extent of his methods of discipline. She agreed that was what she said and if she had seen the methods she found unacceptable she would have stopped them. The ones she saw were at times inappropriate but not extreme.[184]

    Showering with the accused

    [184] T217.

30. At Murray Bridge when the girls were little the accused was involved in their bathing and showering. There was nothing unusual about that to her mind.

31. That continued when they were older. She did not recall the oldest that they were when he was doing that. He was more involved in the bathing and showering of the girls than she was.[185]

    Nakedness

    [185] T190.5.

32. There were occasions that [MP] observed the accused naked walking around the house. From time to time she would walk from the bathroom to the bedroom without clothes. The accused did not express any opinions on nakedness or nudity.

33. He preferred the girls not to have clothes on at night to allow their bodies to breathe.[186]

    [186] T190.24.

34. That topic came up more than once.

35. She did not have an opinion on it.

    Sexual relations with accused

36. [MP] gave evidence that she had an active sex life with the accused during their relationship. He did not appear to have any issues obtaining or maintaining an erection.[187]

    [187] T191.24.

37. There was a drop off in their sexual activity over the years they were together. He still was able to get and maintain an erection.

    Separation

38. [MP] could not remember the exact year she separated from the accused. They were living in Koolunga at the time.

39. From Koolunga they moved to Clare. When they lived there, steps were being taken to sort out the fallout from the separation. He would stayed overnight a couple of times. On those occasions they had sex. She was not aware of any issues with getting or maintaining an erection.

40. She was not aware of him seeing any medical practitioners and did not raise any medical issue in that regard.[188]

    [188] T192.

41. In cross-examination, it was put to [MP] that she suggested he go to see Dr Gribble and have Viagra prescribed towards the end of the relationship. She denied that.[189]

    [189] T210.17.

42. In cross-examination, it was put to [MP] that she separated from the accused on 1 June 2013. She agreed.[190]

    [190] T211.18.

43. In cross-examination she agreed that the frequency of intimate moments decreased in the 18 months at the end of the relationship. She said it was because the accused’s mother was quite unwell at that stage and they had a bit of financial pressure on them, which wasn’t conducive to a mood.[191]

    How the offending came to light

    [191] T218.30.

44. In 2015, [MP] was living in Clare with her three children.

45. There was an occasion where she heard [C] crying and very upset. [S] had been teasing her about something and pushing her buttons. She had a complete meltdown in her bedroom and became quite hysterical and crying.[192]

    [192] T192.34.

46. [B] went into her room and spoke with her. She came out and asked [MP] to come into her room. She said that [C] needed to speak with her about something.

47. [C] said that the accused had been inappropriate with her. She did not go into detail at that time.[193]

    [193] T193.

48. [MP] was friends with Officer Kuchel. [C] said that she wanted to report the matter and [MP] said she would speak with Officer Kuchel as a friend as to how they proceeded with that. There was a couple of months delay between talking to Officer Kuchel the first time and the making of the formal complaint.[194]

    [194] T193.

49. In cross-examination, [MP] was asked further about this incident. She said [C] said to her that ‘[the accused] had been inappropriate with her and that she had been holding it in for quite some time and, yep, she couldn’t do that anymore’.[195] She could not remember specifically if she used the word inappropriate but thought she did. [MP] was asked how sex came into it. She said ‘to this day I don’t know or never have had the girls speak to me about any specific details about any of that. Sex has never come into it’.[196] She did not remember asking a question about what she meant by inappropriate. A few months later she took her to the police. They had not spoken about it in the intervening period and never have.

    [195] T213.5.

    [196] T213.13.

50. [MP] was asked why she took her daughter to the police if all she had said was that her former husband had acted inappropriately. She said ‘because she wanted to press charges for what had happened and as a mother I knew she was upset enough that it was something that was a bit beyond anything minor’.[197] She felt it was more than being punished for being naughty. While they did not discuss it in detail, because of all the circumstances she formed the view it was more than trivial. There was nothing she said that related it to anything sexual.

    Cross-examination about statements

    [197] T214.2.

51. [MP] agreed she gave a number of statements to police, on 8 May 2018, 27 June 2018, 22 May 2019, 14 July 2021 and 11 August 2022.

52. She agreed the first police officer she met regarding these matters was Officer Kuchel. She met him with her daughter at the Clare Police Station. She arranged that by phoning the Clare Police Station and making an appointment. She did not recall exactly when she phoned the police station or how long it was before her daughter gave a statement.[198]

    [198] T196.

53. It was suggested that she attended the police station with her daughter to give her first statement on 12 February 2016. She did not recall the date but agreed she went with her.[199] It was suggested it took about four months for her to give the statements and then to sign it. She did not know. Her daughter did not express any reluctance at that point to proceed with the matter.[200]

    [199] T197.

    [200] T197.

54. When she gave her first statement on 8 May 2017 she attended the police station alone.[201]

    [201] T197.

55. She did not recall [C] expressing any reluctance to proceed with the matter prior to her second statement on 27 June 2018. [C] never said she no longer wished to proceed with the matter. She never complained about being pressured into reporting the matter. She said [C] made the report because that is what she wanted to do. That is the action she wanted to take.[202]

    [202] T198.13.

56. There were occasions when Detective Holmes would ring her and say ‘I’ve been trying to get hold of [C] but she won’t return any of my calls’. She could not remember when that happened. It was suggested it happened firstly a number of times between the time she gave her first statement and the time she signed it. She disagreed with that.[203] [MP] said ‘My memory was that after we had been visited by him in our home to speak about the charges he did not contact [C] until she had turned 18. She went through me until then’.[204]

    [203] T198.21.

    [204] T198.29.

57. [MP] agreed there was a meeting with [C], [S] and [B] at her house with Detective Holmes. She could not recall if it occurred on 13 April 2017. Her first statement was given before any occasion they met with Detective Holmes.[205]

    [205] T199.

58. The first meeting was at Clare with [C], herself and Detective Holmes. It could have been over 12 months after the initial statement. They spoke about their statements and what the process would be from that point on. He had a copy of the statement with him. He did not have any other statements with him. She had already given her statement to Officer Kuchel. She did not read [C]’s statement. The accused had not been charged at that point, the meeting was to explain what the process would be if he was charged.[206]

    [206] T199-200.

59. No one else was present at that meeting.

60. The next meeting was with Detective Holmes. It was after she had given her statement. [C] had given a statement, and [B] and [S] had given separate ones at Clare Police Station.[207] The meeting was later in the day. He spoke to them as a group. She did not recall if they spoke about the accused as a stepfather, or whether the girls said he was a terrible stepfather. [C] did not speak generally about the abuse that she could recall. She did not remember that [S] disclosed that she had been a victim of similar offending. She thought Detective Holmes had taken over the case at that stage.[208]

    [207] T200.34.

    [208] T201.

61. It was suggested that the meeting occurred before [B] or [C] had given a statement. That was not how she recalled it. It was suggested they discussed the allegations of sexual abuse in some detail at that meeting. She said that was not correct.[209]

    [209] T202.1.

62. Detective Holmes took notes at that meeting. The second meeting was a good few months after the first meeting. They were all given their statements to take away to have a look and confirm the details.[210] They each received one statement. They each sat at the table, read them and were told if there was anything incorrect to mark it and return to Detective Holmes. They were then told to take them to a police station in the future when they were sent back to have them amended and corrected.[211] They read them individually to themselves.

    [210] T202.14.

    [211] T202.27.

63. She could not recall if anyone said they had details to be changed.

64. She did not recall if Detective Holmes asked any questions about the accused at that meeting. He did not ask anything about erectile dysfunction in front of the girls. She later said that the issue of erectile dysfunction was discussed but the girls were not present during that part of the conversation. She had a clear memory of that.[212] She said that would not have been something she would have been comfortable speaking about in front of her children.[213]

    [212] T207.

    [213] T209.27.

65. The girls did not sign their statements on that occasion because they were already signed. They had already given those statements.[214]

    [214] T204.11.

66. [MP] was read a section of her statement from 11 August 2022 which said ‘No-one read their statements aloud but I do have a vague memory of [S] and [B] telling [Detective Holmes] they had some details to change in their statements’. She still could not recall but said if she had said it then, then it would have happened.[215]

    [215] T204.35.

67. Later, in cross-examination, [MP] agreed there was one further meeting with Detective Holmes. She could not remember specifically who was there. He went through letting them know what was happening with the case. At times if he had trouble getting hold of the girls, the girls worked with her so he would sometimes contact her. She could not recall how many times that happened.[216]

    [216] T211.8.

68. In re-examination, [MP] was asked if she has ever read [B] or [S]’s statements. She has not.[217]

    Incident with car

    [217] T218.23.

69. [MP] was asked if she recall an event when she and the girls were in a vehicle with the accused driving somewhere and they were playing up in the back seat. She agreed.

70. He stopped the car, and she thought he asked all of the children to get out of the car.[218]

    [218] T211.26.

71. He drove off. She was still in the car with him.

72. She could not recall how far down the road he drove. She could not recall if he reversed back. The girls got back in the car.

73. She could not recall if there was an occasion where it was just [S]. It was suggested he drove back to pick up [S] and [S] thought it was a huge joke and was laughing about it. She said ‘I don’t recall so I don’t recall that it was a joke’.[219]

    Bathrobe

    [219] T212.10.

74. In cross-examination, [MP] agreed the accused had a bathrobe. She could not remember what colour it was.[220]

    [S] and counsellor

    [220] T212.16.

75. In cross-examination, [MP] agreed there were occasions where [S] came into conflict with the accused and matters arose at school with the school counsellor. She did not recall any specific occasion but knew there were occasions.

76. It was suggested there was an occasion where [S] had alleged the accused had pushed her down the stairs. She did not know she raised it to the counsellors. She knew she spoke to her about it.

77. She did not remember being spoken to about it by the school. It was suggested she met with the school counsellor on 21 March 2011 to discuss allegations made by [S]. She could not remember and had no recollection of being advised by a school counsellor that [S] had complained about the accused pushing her down the stairs. It was suggested she told the counsellor that [S] told her she had lied about that matter. She said that was not correct.[221]

    [221] T215.

78. She was asked whether she recalled an event where [S] accused her stepfather of locking her out of the house. She did not recall a specific time. She did not remember a meeting with the counsellor on this topic. She did not remember telling the counsellor that [S] had alleged the counsellor had made that up.[222]

    [222] T216.

1. Regard must be had to s 34S of the EA in determining whether evidence is admissible on a similarity of account basis. Section 34S of the EA provides:

   34S—Certain matters excluded from consideration of admissibility

   Evidence may not be excluded under this Division if the only grounds for excluding the evidence would be either (or both) of the following:

   (a)there is a reasonable explanation in relation to the evidence consistent with the innocence of the defendant;

   (b)the evidence may be the result of collusion or concoction.

2. In determining admissibility on or similarity of account basis, the evidence of the complainants need not be identical or indeed strikingly similar. Rather, as outlined by Kourakis CJ in R v C, CA:[297]

   … The question is whether as a matter of human experience the levels of similarity between the complaints might be expected if the complainants for reasons, conscious or sub‑conscious, which are peculiar to them, had independently concocted or imagined the offending which they alleged.

   [297] Ibid [65].

3. Subsequently, in MDM v The Queen,[298] Kourakis CJ returned to the topic of the admissibility of similarity of account evidence:

   In this State, the evidence of complainants in multiple victim cases has often been held to be cross-admissible because of the improbability of complainants giving similar accounts of offending by the same person unless their accounts were true.  The admissibility of the evidence on that basis has been facilitated by the statutory abrogation of the common law rule of evidence, first stated in Hoch v The Queen, which had required the trial judge to exclude the possibility of concoction before admitting the evidence of one of a number of complainants in the case against the accused on offending against another complainant.  This Court has not held that the degree of similarity required to give similarity of account evidence sufficient probative value to substantially outweigh its prejudicial effect extends to the degree of similarity required to show an identity in modus operandi.  It is not possible to make such a general statement.  The reasoning in both is analogous but not identical.  The former reasoning concerns the improbability of similar accounts of offending being given by different complainants unless the offending actually occurred; the latter concerns the improbability of two different offenders committing offences in a very similar way.  The first, significant, improbability which arises in evaluating similarities in the independent accounts of different child complainants, is that two or more children known to the accused both happen to fabricate or imagine that they have been sexually abused and/or happen to fabricate or imagine, that the offences were committed by him.  The significance of that improbability may be affected by the number of other persons known to them to whom they might have attributed the claimed offending.  However, any additional similarities in the offending build on that initial improbability.  For those reasons, I do not accept that, to be sufficiently probative to substantially outweigh its prejudicial effect, similar account evidence necessarily requires a greater degree of similarity than is required for propensity evidence.  [Citations omitted]

   [298] (2020) 136 SASR 360 [14].

4. As Kourakis CJ emphasised in R v C, CA,[299] an assessment of the probative force of similarity of account evidence requires a focus upon those similarities and dissimilarities that bear upon the improbability of independent concoction, fabrication or imagination. In the circumstances of that case, for example, the fact that the three complainant boys were of a similar age, did not have a father figure in their lives, were all acquaintances of the accused’s foster son, and all accompanied the accused on outings, were held not to be probative similarities for this purpose.

   [299] [2013] SASCFC 137 [93].

5. This emphasis was repeated in DES v The Queen,[300] and MDM v The Queen.[301] In MDM v The Queen, Peek J explained the need to focus upon similarities in the narrative of the allegations made by the complainants rather than personal characteristics of the complainants or the accused.[302]

   [300] [2020] SASCFC 32 [70].

   [301] (2020) 136 SASR 360 [14]-[16] (per Kourakis CJ, Kelly J agreeing) and [128]-[135] (per Peek J).

   [302] Ibid [135].

6. The narrative accounts need not be strikingly similar to attain the requisite probative force.[303] In considering similarities in the narratives of the allegations, the focus must be on the ‘peculiarity and detail’ of those narrative accounts,[304] rather than features that are commonplace and unremarkable.[305] As the Court said in Phillips v The Queen:[306]

   The similarities relied on were not merely not ‘striking’, they were entirely unremarkable.  That a male teenager might seek sexual activity with girls about his own age with most of whom he was acquainted, and seek it consensually in the first instance, is not particularly probative.  Nor is the appellant’s desire for oral sex, his approaches to the complainants on social occasions and after some of them had ingested alcohol or drugs, his engineering of opportunities for them to be alone with him, and the different degrees of violence he employed in some instances.  His recklessness in persisting with his conduct near other people who might be attracted by vocal protests is also unremarkable and not uncommon.

   [303] Phillips v The Queen (2006) 225 CLR 303 [58].

   [304] R v Bonython-Wright (2013) 117 SASR 410 [50].

   [305] Sexton v The Queen [2022] SASCA 73 [121].

   [306] (2006) 225 CLR 303 [56].

7. In DES v The Queen, Doyle J said that the focus must be upon the degree of similarity between the complainants’ allegations of abuse, rather than the number or regularity of the instances of alleged abuse. Importantly, the similarity must be between the complainants’ allegations, rather than the complainants’ characteristics.[307] As outlined by Peek J in MDM v The Queen:[308]

   … the similarities to be taken into account when applying similar account reasoning are only those appearing within the narrative of allegations made by each of the relevant complaints such as to make it improbable that each complainant would have independently falsified to that same level of detail.

   [307] [2020] SASCFC 32 [70].

   [308] (2020) 136 SASR 360 [130].

8. Having regard to the above, the similar age and gender of the complainants, the role played by the accused as a stepfather/care giver for all complainants, and the location of the offending has no relevance for the purpose of similarity account reasoning. These matters are peripheral to the physical sexual offending alleged against the accused.

9. The determinative inquiry in the present case is whether the commonality and peculiarity of detail is such that the probative value of the evidence of the complainants in excluding the hypothesis of independent fabrication outweighs the prejudice associated with multiple allegations of sexual impropriety being adjudicated by the one trier of fact.

10. Here, the most prominent, but not exclusive, similarities upon which the prosecution rely are that common to the narratives of [B] and [S] is the common description of [B] and [S] of the accused exposing his erect penis, accompanied by commentary to the effect that this is what occurs when a man becomes aroused, together with an invitation to touch his erect penis.

11. I accept that narrative from [B] and [S] is relevant and has probative similarity. Those narratives share peculiarity of detail that is capable of converting the general nature of the sexual act into a probative similarity.

12. In relation to the complainant [C], the mechanics by which and nature of the sexual activity is carried out illuminates more disparity than it does similarity with the accounts of [B] and [S].

13. I place little weight on the prosecution’s reliance on matters of age, the nature of access and familial relationship and the location of the alleged offending. These are features of the complainants account that the authorities have suggested are not particularly material to the similarity of account analysis and are otherwise largely unremarkable features of the narratives. 

14. Evaluating the evidence as to the overall probative value of the similarities in the complainants’ accounts and whether that probative value outweighs the prejudice to which I have adverted, I am satisfied that the common features, similarity or peculiarity of detail of [B] and [S]’s accounts, are such that, as a matter of human experience, they strongly exclude the possibility of independent concoction. I am satisfied that the probative value of the evidence outweighs its prejudicial effect and I am therefore satisfied that the evidence surpasses the threshold for admissibility prescribed by s 34P(2)(a).

    Propensity evidence – s 34P(2)(b) of the EA

15. In this matter, the prosecution filed a Notice to Adduce Discreditable Conduct evidence.

16. As I understand the submissions of the prosecution, it is submitted that the charged and uncharged acts against each of the complainants, [B], [S] and [C] is admissible pursuant to s 34P(2)(b) in that the evidence demonstrates that the accused had a behavioural propensity to sexually offend in a particular manner including:

    1.      against a child living in his residence;

    2.      against a child over whom he had a parental role; and

    3.      using the pretence of providing sexual education to the complainants.

17. A further item of discreditable conduct relied upon by the prosecution is said to be admissible to prove that the accused:

    1.      had a sexual interest in pre-pubescent girls;

    2.      had a willingness to act upon that sexual interest; and

    3.      that he was therefore more likely to have acted pursuant to that interest/propensity in relation to the charged acts.

18. I turn then to the question of whether the evidence of charged and uncharged sexual acts alleged to have been committed against [B], [S] and [C] are capable of establishing that the accused had a propensity to sexually offend in a particular manner and had a sexual interest in pre-pubescent girls and a willingness to act upon that sexual interest and that he was therefore more likely to have acted pursuant to that propensity in relation to the charged acts.

19. For evidence to be admissible for a propensity purpose, it must first pass the test in s 34P(2)(a) of the EA, that is, the probative value of the evidence must outweigh any prejudicial effect it may have on the accused. Further, for the evidence to be admitted for a permissible use that relies on a particular propensity or disposition of the accused as ‘circumstantial evidence of a fact in issue’, it must have strong probative value having regard to the particular issue or issues arising at trial pursuant to s 34P(2)(b) of the EA.[309]

    [309] MDM v The Queen (2020) 136 SASR 360 [9].

20. In R v MJJ; R v CJN, [310] Kourakis CJ made the following observations about weighing the probative value of evidence:

    The impermissible use identified in s 34P(1) of the Evidence Act is the drawing of an inference of guilt from the fact that the accused has engaged in other conduct which has no relevant connection to the offence other than to share the epithet discreditable. Evidence of discreditable conduct of that kind may, admittedly with some imprecision, be described as evidence of a mere, or general, propensity. Section 34P(2)(b) expressly provides for the admission of discreditable conduct evidence which shows a particular propensity or disposition of the defendant. The particular propensity or disposition must be strongly probative of the offence charged and outweigh its prejudicial effect. Discreditable conduct which has a permissible use, other than by way of demonstrating a particular propensity, need only have a probative value, whether weak, moderate or strong, which substantially outweighs its prejudicial effect.

    At the core of the assessment of the probative value of discreditable conduct evidence are two analytical steps. The first is to identify the particular fact which is in issue. The second is to consider how, if at all, the discreditable conduct evidence circumstantially increases, as a matter of human experience, the probability of the existence of that fact. Resorting to generalities such as ‘context’, ‘background’ and ‘underlying unity’ will seldom illuminate the analysis.  [Citations omitted]

    [310] (2013) 117 SASR 81 [18]-[19].

21. The probative value of the evidence will depend on the extent to which the propensity makes more likely the elements of the offence charged. This involves a comparison between the propensity and the facts in issue. As outlined by the plurality in Hughes v The Queen:[311]

    A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant.

    [311] (2017) 263 CLR 338 [64].

22. Whilst determining the admissibility of propensity evidence will necessarily be a fact-sensitive task, it should be noted that Kourakis CJ in R v C, CA was not satisfied that a single isolated incident of offending against one complainant, standing alone, manifests a propensity which is strongly probative of the greater offending against the other complainants.[312] The remarks of Kourakis CJ are apposite to this matter. In the present case, there is a course of conduct with a multiplicity of sexual acts involving [C] as opposed to a single momentary charged incident involving [B] and a single momentary charged incident involving [S].[313]

    [312] [2013] SASCFC 137 [74].

    [313] Noting the shaving incident involving [S] which I have already determined to be of insufficient probative value to warrant its admission.

23. Furthermore, I am mindful of what was said by Kourakis CJ in R v C, CA:[314]

    In my view, s 34P(3) of the Evidence Act is more likely to weigh against the admissibility of discreditable conduct evidence when the permissible form of reasoning is based on a propensity or disposition which is not powerfully established by the evidence of discreditable conduct.

    [314] [2013] SASCFC 137 [79].

24. I am not satisfied that the evidence is capable of demonstrating the accused had such a propensity.

    Collusion

25. I have carefully considered the submission advanced by defence that the complainants and their mother colluded together to make false allegations against the accused. This suggestion was put to each of the complainants and their mother. Both Officer Kuchel and Detective Holmes were cross-examined about the methodology of the investigation, in particular the taking of statements.

26. The undisputed evidence reveals that on 13 April 2017, the complainants and their mother met with Detective Holmes to discuss the matter. All of the relevant witnesses gave evidence that no specific information regarding the conduct of the accused was discussed at this meeting. Rather, it was described as a meeting whereby the investigative process and prosecutorial process were discussed. I am satisfied that none of the evidence was discussed at this meeting. I am satisfied that the meeting was focussed on providing information about process rather than substance.

27. In addition, the complainants [B] and [C] and their mother refuted any suggestion that they had discussed the detail of the allegations with each other. The common theme on the evidence, which I accept, is that there was general knowledge of an allegation being made from each of the complainants about sexual impropriety on the part of the accused, but that no detail had been disclosed.

28. The exception to this is the evidence of [S] that she spoke with [C] about the subject matter of count 2.[315] However, no such evidence was given by [C], nor did [C] give any evidence about being present when the incident, giving rise to count 2, took place. This is hardly surprising, given that [C] would have been very young, about 1-2 years of age, at the relevant time.

    [315] T158.

29. I accept the evidence of the complainants and their mother that there was no collusion.

    Discussion

30. I have set out in these reasons a synopsis only of the evidence in respect of the matter. I have also summarised some of the respective submissions of counsel.

31. In addition, I have summarised the contents of the record of interview with the accused. The accused voluntarily participated in the interview. He did not have to answer any questions. He denied the allegations.

32. As to the evidence relating to the topic of erectile dysfunction, the final state of the evidence is unclear as to the symptoms of any erectile dysfunction and the timeframe applicable to any erectile dysfunction. Accordingly, I disagree with the prosecution submission that I should treat the comments of the accused on this topic as lies arising from a consciousness of guilt, nor do I find that what was said by the accused on this topic amounts to a lie.

33. Conversely, I have found that the accused lied about the status of his relationship with the complainants. This is not a lie borne out of a consciousness of guilt. I take this into account in assessing the version provided by the accused in his record of interview.

34. I find that the denials of the accused in the record of interview are not reasonably possibly true.

35. Having made this finding, this does not add to the prosecution case. It is not a makeweight for the Crown. I remind myself that at all times it is for the prosecution to prove its case beyond reasonable doubt.

36. The prosecution case is solely reliant upon the evidence of each of the complainants being accepted as both truthful and reliable beyond reasonable doubt.

37. Whilst I do not have to be satisfied beyond reasonable doubt as to the reliability and credibility of every aspect of the complainants’ evidence, it is trite to say that the prosecution case stands or falls on an acceptance of each of the complainants’ evidence as to whether the sexual acts took place, beyond reasonable doubt.[316]

    [316] Murray v The Queen (2002) 211 CLR 193 [57].

38. The prosecution case cannot succeed unless the complainants’ evidence satisfies me beyond reasonable doubt of the commission of the charged acts. Whilst I do not have to be satisfied beyond reasonable doubt as to the reliability and credibility of every aspect of their evidence, in light of the significance of their evidence to the prosecution case, a doubt about one aspect of each of the complainant’s reliability or credibility as regards one topic would clearly be an important consideration when considering whether I could accept the evidence on another topic or issue.

39. In evaluating the evidence of each complainants’ evidence in Court, I must not overlook that no aspect of the evidence must be evaluated without considering the whole of each complainants’ evidence and the balance of the evidence. Matters which might be said to impact adversely upon their honesty and reliability must be considered in the context of the evidence as a whole.

40. The real issue is whether the prosecution has established beyond reasonable doubt the particularised sexual acts on the Information occurred.

41. I found [B] to be an impressive witness. There was nothing in the way that she presented which causes me to doubt her honesty and reliability. She appeared to be genuine and at no time did I get the impression that she was exaggerating or doing anything other than attempting to recall events accurately. [B] was candid about the poor relationship she had with the accused and was succinct when describing the events giving rise to count 1 on the Information. Her evidence about the accused exposing his penis to her and being scared and uncomfortable in the aftermath was compelling. Whilst I accept that [B] was unable to recall some of the finer detail, such as the colour of the dressing gown being worn by the accused and other events of the day in question, these are peripheral matters that are adequately explained by the passage of time.

1. Under cross-examination, [B] readily accepted that she had been highly critical of the accused in her witness statements to police and further accepted that she had previously complained about the disciplinary behaviour of the accused without mentioning him exposing his penis to her. This does not cause me any concern. It was apparent from the tenor of the witness’s evidence that her focus had been on the adverse treatment she had received from the accused in terms of discipline on account of this being far more frequent, than the one-off incident of sexualised behaviour.

2. [B] responded to questions in a straightforward, convincing fashion.

3. I remind myself at this stage that demeanour and presentation not be given undue weight in an assessment of honesty and reliability. Any determination of these issues can only be made having regard to the whole of the evidence, the criticisms raised by the accused during the course of the trial and whether there is support for her evidence.

4. Having cautioned myself about such matters, I am nonetheless left with a positive overall impression of the integrity and reliability of [B]’s account. I found her presentation to be convincing and genuine.

5. As I have earlier acknowledged, to consider in a way the evidence in its totality, including any deficiencies in the detail in her account, and establishing inconsistencies between her evidence and as between her evidence and the other evidence. I have given careful thought to the criticisms identified by defence counsel during the course of closing submissions. As referred to previously in these reasons, whilst the complaint witness [JK] gave evidence that [B] referred to being touched by the accused, in the circumstances, I do not regard this as being an inconsistency given that it very well may have been she was complaining about the disciplinary mistreatment she endured at the hands of the accused. There is nothing that causes me to doubt [B]’s honesty or reliability about the occurrence of the accused exposing his penis to her and asking her if she wanted to touch it.

6. The complainant [S] gave evidence in a very matter of fact way, clearly describing the conduct that gives rise to count 2. She explained that the reason why she did not complain about this behaviour earlier was that ‘it was normal at the time’ and accepted that she made a number of complaints about the non-sexual behaviour of the accused towards her and couldn’t explain why no complaint was made about the sexual behaviour at that time.

7. It is apparent from reviewing the evidence in its entirety that again, the focus during her childhood and adolescence and even to date appears to be on the strict disciplinarian regime enforced by the accused. This is consistent with the behaviour of [S] complaining about this aspect of her home life without mentioning the incident giving rise to count 2.

8. [S] was also cross-examined at some length as to why it was that the discreditable conduct relating to the shaving of her genital area was not raised until the fourth statement she gave to police. The witness explained the reason for the failure to disclosure because she was simply so embarrassed by what had occurred. I accept this explanation. The witness was plainly uncomfortable and embarrassed discussing this aspect of her evidence both in-chief and whilst under cross‑examination. Part of this embarrassment extended to her explanation that she had to ask for the accused’s permission to shave her genital area because ‘we asked to do most things’.

9. I have carefully taken into account all of the criticisms made of an argument in relation to why I should not accept the evidence of [S]. Again, having regard to the whole of her evidence and the evidence in the case, I accept beyond reasonable doubt the description given by [S] in relation to the incident giving rise to count 2.

10. There is nothing in the way that she presented or about the content of her evidence which causes me any disquiet.

11. The complainant [C] is the youngest of the three sisters. In assessing her evidence, I take into account the relatively young age, 9 years, that she was when she stated that the abuse began.

12. Whilst there was nothing in the demeanour of the complainant in the course of examination-in-chief or cross-examination, as I have stated previously, it is important that these matters are not to be given undue weight in the assessment of honesty and reliability. There is a significant discrepancy between the evidence of [C] about her conversations with [GD] about the allegations. As explained earlier in these reasons, these inconsistencies are not explicable on account of misunderstanding, mistake, the passage of time or some other innocent explanation. Having accepted the evidence of [GD], the only reasonable explanation for this piece of evidence is that the complainant was not being truthful in her account of the offending made to her friend. This is not something that relates to a peripheral topic. It is something that lies at the heart of counts 3, 4 and 5 and indicates a preparedness to, at the very least, exaggerate her account in describing the alleged criminal conduct. Further, [C]’s denials under cross‑examination as to making those disclosures to [GD] only compounds the problem that exists on her evidence.

13. Whilst I am suspicious as to the possibility of the accused engaging in sexualised acts with [C], this fundamental flaw identifiable in [C]’s evidence means that I am unable to accept her evidence beyond reasonable doubt. I am left with a doubt that the accused committed counts 3, 4 and 5 on the Information and having regard to the very high burden that rests upon the prosecution, I find the accused not guilty of those charges.

14. Having accepted the evidence of [B] beyond reasonable doubt as to the circumstances of count 1 and complainant [S] beyond reasonable doubt in relation to count 2, I find the accused guilty of those charges. I remain of the view that the evidence of [B] and [S] is cross-admissible on a similarity of account reasoning. However, I did not ultimately use the evidence in that way. It is therefore unnecessary for me to say anything further on this topic.

15. In making these findings, I make it clear that each element of each of count 1 and count 2 is proved beyond reasonable doubt. This necessarily includes a finding on each count that the proven actions of the accused occurred in circumstances of indecency, excluding any suggestion that the offending occurred in anything other than prurient circumstances.

    Conclusion

16. I find the accused:

    1.      guilty of count 1;

    2.      guilty of count 2;

    3.      not guilty of count 3;

    4.      not guilty of count 4; and

    5.      not guilty of count 5.