R v Siebert - [2017] SADC 82

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SIEBERT
Criminal Trial by Judge Alone
[2017] SADC 82
Reasons for the Verdicts of His Honour Judge Barrett
3 August 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is charged with two counts of Persistent Sexual Exploitation of a Child, one count in respect of each of two sisters in the 1970's. The counts were heard together because the evidence of each complainant was cross admissible.
Held: Guilty of both counts.
Evidence Act 1929 s 34P, referred to.
R v Maiolo No 2 [2013] SASCFC 36; R v C, CA [2013] SASCFC 137; R v Liddy (2002) 81 SASR 22; R v Bolte [2010] SASC 112, considered.

R v SIEBERT
[2017] SADC 82

The accused is charged with persistent sexual exploitation of two sisters between January 1976 and January 1978. The sisters were the daughters of a Salvation Army couple who were posted to a country town for that two year period. The family began that posting before the school year began in 1976 and they moved to a subsequent posting after the end of the school year in 1977. In those two years the girls were aged 6 to 8 and 4 to 6 years. The accused was aged 20 to 22.
On the prosecution case the accused was an active member of the church congregation. He was frequently at the church premises. He spent quite a lot of time in the company of the girls and their brother who lived in a house adjacent to the church. The accused later became a Salvation Army pastor. On the prosecution case he was also employed to clean the church.
The defence case is that the accused had very little contact with the children. He only went to the church for specific church-related activities. He was not employed to clean the church. He was employed as an apprentice fitter and turner. The accused denied any sexual impropriety.
The Charges
The accused is charged with two counts of persistent sexual exploitation, one count relating to each sister. Count 1 relates to the older sister, KS and count 2 relates to the younger, JS. In respect of each count the prosecution must prove beyond reasonable doubt three ingredients as follows:
1that the accused has committed two or more acts of sexual exploitation. Each act must itself be a sexual offence and all ingredients of that offence must be proved beyond reasonable doubt;
2that two or more acts must be committed over a period of not less than three days;
3the acts must have been committed when the complainant was under 17.
Count 1, relating to the older sister, alleges four different types of sexual exploitation consisting of three different sexual offences. There is one type of indecent assault – touching the vagina (particular (a)). There are two types of unlawful sexual intercourse – digital penetration of the vagina (particular (b)), and cunnilingus (particular (c)). There is one type of gross indecency – having the complainant touch the accused’s penis (particular (d)).
The acts are alleged by KS to have occurred frequently over the two years the family was in the town. KS was aged between 6 and 8.
Count 2 relates to the younger sister. That count alleges eight different types of sexual offending consisting of the same three different sexual offences as alleged in count 1. Count 2 alleges the same four different types of sexual exploitation alleged in count 1 but there are four further types. Count 2 alleges two types of indecent assault – touching of the breasts (particular (a)) and touching of the vagina (particular (b)). There is one type of gross indecency – having the complainant touch the accused’s penis (particular (c)). There are four types of unlawful sexual intercourse - fellatio (particular (d)), cunnilingus (particular (e)), digital penetration of the vagina (particular (f)) and object penetrating the vagina (particular (g)) and penile/vaginal intercourse (particular (h)).
JS says that the acts occurred frequently over the same two years. She was aged between 4 and 6.
Each complainant gave evidence of each of the above allegations. If the evidence of each is accepted beyond reasonable doubt then each charge will be proved.
Application for Severance
The accused sought severance of the two counts. He sought to have separate trials of the two charges. He submitted that the evidence of the two complainants was not cross-admissible.
The prosecution opposed the application, submitting that the evidence of the two complainants was cross-admissible.
I ruled that the two counts should be tried together. In my view the evidence of the two complainants was cross-admissible. I explain why.
The cross-admissibility of the evidence of the two complainants is to be determined by reference of the principles governing the admissibility of discreditable conduct within the meaning of s 34P of the Evidence Act 1929.[1]
[1] R v Maiolo No 2 [2013] SASCFC 36 per Peek J at [131].
In this case the prosecution does not seek to rely on propensity reasoning as contemplated by s 34P(2)(b). Instead the prosecution relies on similarity of account or improbability reasoning.[2]
[2] R v C, CA [2013] SASCFC 137 per Kourakis CJ at [61] and per Nicholson at [131-141].
Further the prosecution submits that the evidence of each complainant suggests there is pattern or underlying unity in the accused’s behaviour.[3]
[3] R v Liddy (2002) 81 SASR 22 per Mullighan J at [50].
Before evidence of other offending can be admitted in relation to a particular charge, the prosecution must demonstrate that the probative weight of that evidence substantially outweighs any purely prejudicial effect it may have.[4] That said, the risk of a purely prejudicial use being made of evidence adduced in a judge alone trial is not as high as in the case re a jury trial.[5] That consideration is also relevant to the requirement in s 34P(3) that in determining whether or not to admit the evidence of other offending, regard must be had to the necessity to keep sufficiently separate the permissible and impermissible uses of the impugned evidence. An impermissible use is set out in s 34P(1)(a) – the evidence cannot be used to suggest that the accused is more likely to have committed the subject offence because he engaged in, or is alleged to have engaged in, the other offending. The evidence may not be used to impugn his character.
[4] s 34P(2)(a) of the Evidence Act 1929.
[5] R v Bolte [2010] SASC 112.
In my view the evidence of each of the complainants is capable of demonstrating that there was a sufficient commonality between the allegations that there could be said to be said to be a consistent pattern or underlying unity in his behaviour towards each of them. The complainants are sisters. Their ages were similar. There is only two years difference between them. The offending against both is alleged to have all occurred in the church premises, albeit not always in exactly the same place. The offending is said to have occurred on both complainants over the same period.
There are significant similarities in the allegations of each, although dissimilarities must also be acknowledged. Both complainants say that the grooming behaviour was similar. The accused would play with them in the recreation rooms. He would cuddle them. He began touching each of them inappropriately on a chair in the table tennis room.[6]
[6] KS T63-66 and JS T178-181.
KS said that on occasions both girls would be on his lap, one on each leg, and she could see that the accused had his hand beneath JS’s legs underneath a cloth. JS does not remember both being on the accused’s lap at the same time.
Some of the alleged offending is common to both complainants. Both say that the accused touched their vaginas, digitally penetrated their vaginas, engaged in cunnilingus and caused them to touch his penis. The accused is alleged to have committed against JS, all the acts alleged by her sister, but JS speaks of additional acts being committed against her. She alleges more extensive offending than does her sister.
That is not the only difference between the sisters’ accounts. JS says that she actually sought out the accused. She followed him around. She welcomed his attentions. She welcomed his affections and she did nothing to stop the offending. By comparison her older sister was somewhat wary of, at least, the offending. She at times closed her legs to inhibit what he was doing. As time went on she did not want the offending to happen. She sought to push the accused away.[7] She sometimes sought to hide.[8] Despite these differences there is in my view a largely consistent pattern in the sisters’ accounts of the accused’s behaviour towards them.
[7] T70.
[8] T73 and T75.
I find that the evidence of each substantially outweighs any prejudicial effect (s 34P(2)(a)). I am able to, and I will, keep separate the permissible and impermissible uses in the evidence (s 34P(3)).
In my view the two counts are properly joined on the same information and the evidence of each is cross-admissible. The accused has not demonstrated that the two charges should be severed.
The course of the trial
The prosecution called the two complainants, their mother, a friend of JS and a police officer. Some agreed facts were tendered.
The accused gave evidence himself. He did not exercise his right to silence in court. I treat his evidence in the same way as that of any other witness. In addition he called his brother to give evidence.
I will discuss the evidence of each witness separately but before I do that I will deal with the question of collusion. The accused suggests that the two complainants have colluded.
Collusion
For obvious reasons it is convenient to deal with this topic as it relates to both complainants.
The sisters have lived in different states for many years, KS in Queensland and JS in Victoria. Both complainants went to the Epping police station in 2004 and there gave statements about the sexual abuse. Both gave evidence before the Royal Commission into Institutional Sexual Abuse (the Mullighan Inquiry). Both complainants remember discussing together their understanding that in 2004 South Australian law did not permit the prosecution of sexual offences occurring in the 1970s. KS remembers, although JS does not, the two of them discussing the possibility of taking part in a broadcast on A Current Affair about that legal limitation.
JS said in her witness statement dated 14 September 2016 that in the week before their appearance at the Mullighan Inquiry, KS told her ‘explicit details’ of the sexual abuse against her. Both KS and JS deny that either had told the other the detail of their abuse.
JS was cross-examined about that. She agreed that proposition appears in her statement of 14 September 2016. However she denied that KS had ever told her the explicit details of her abuse. She said that on the occasion before the Royal Commission appearance, KS had told her on the telephone that the accused had ‘touched me’ down there. Upon hearing KS’s disclosure on the telephone, JS had an appointment with her psychologist. She said that she was actually on her way to see the psychologist. She was so upset about what her sister had said that during the consultation with the psychologist she went into a dissociative state and was admitted to the Boxhill Psychiatric Hospital.
KS denies ever telling JS about the details of the abuse of her. JS says the same. She says that she never told KS the details of her abuse.
There is no doubt the sisters have spoken together on the topic of the sexual abuse of them by the accused. They both gave statements about that abuse in 2004. They were both at the Epping Police Station giving their statements at approximately the same times. They were both given to understand that at that time South Australian law did not permit prosecutions of what we now describe as historical sexual abuse. Both complainants were disappointed about that. KS says they discussed participating in a segment on A Current Affair about that.[9] JS denies any such discussion.[10]
[9] T122.
[10] T213.
Both gave evidence before the Mullighan Royal Commission in 2015. Each knew the other was going to do so.
I accept Mr Mead’s submission that collusion can take several forms. One form is that the parties get together and agree to tell a false story. The parties both know the story is false and they both agree to tell it. Another form is where one party discusses with another a story he or she knows to be false and the other party goes away and independently decides to tell their own false story. It might be that one party tells the other a true story and the other party agrees to tell a false story or goes away and independently decides to do so. Another possibility is that one party tells the other a story, true or false, and the other imagines, wrongly, that the abuse has also happened to him or her.
It may be that these later scenarios might be better described as contamination rather than collusion but the effect of all of them is that there are two accounts of abuse rather than one because the parties have discussed the matter in enough detail that a false story is told.
It is as important to identify what does not amount to collusion. It is not collusion if, as a result of a discussion between two people, they feel confident enough to report abuse they have each genuinely suffered. In that circumstance it does not matter how much detail they have discussed. It does not matter that each has revived genuine memories in the other of events which they had forgotten. I appreciate that there is a danger of circular reasoning in this last proposition. It is circular reasoning and logically fallacious to reason that because an account is, or appears to be, truthful and reliable, there cannot have been collusion. Nevertheless it is not illogical to say of two accounts that there are sufficient differences between them that collusion is less likely.
I exclude the possibility of collusion in this case. I do not believe the sisters have colluded together, or that the account of one has infected the account of the other. I make that finding on two principal bases.
The first is that I find compelling the evidence of each complainant that the sisters were not close and that they have lived very separate lives. At least as between themselves, they have something of their parent’s reluctance to discuss sexual matters. Both complainants spoke of that feature of their parent’s personality. I make that finding despite JS saying in her police statement that KS had told her explicit details of her sexual abuse at some stage before each gave evidence at the Royal Commission. It is not clear how JS came to say that in her statement, but I accept the evidence of both complainants that no such discussion ever took place.
The second reason for finding that there is no collusion is the difference between the accounts of each complainant.
While there aspects of sexual abuse common to both accounts, there are significant differences. The abuse of JS was more extensive. Her response was different from her sister. Some of the differences in detail tell against collusion. I will refer to that detail in my discussion of the substantive issues in the trial. For present purposes I find that there was no collusion.
I now turn to the evidence of each witness.
KS
KS is now 47. She lives in Queensland. She said she and her sister had never been close. JS says the same. Both sisters say that their parents were never physically or emotionally close to them, although neither suggests that she was in anyway mistreated or neglected by her parents. The parents were both busy with church activities. The sisters, and their brother, were free to amuse themselves in the recreational rooms of the church building which was right next door to the house in which they lived. There was only a lane dividing the two buildings.
KS said the accused was frequently at the church building. He was a cleaner there. He played games with all three children. He was there sometimes after school and on Saturdays. KS thought he was aged 17 to 19 years at the time. In fact he was 20-22. She said he had a moustache and wore glasses some of the time. (The accused said he shaved his moustache off for a while in 1976-78 and that he always wore glasses.)
KS said that she came to trust the accused. He hugged her and gave her piggy back rides. It felt warm being with him. The accused sometimes had both girls on his lap at the same time. KS said that when the accused started touching her inappropriately she did not see the wrongness of what was happening. The behaviour was generally comforting. When he started digitally penetrating her vagina, she felt some pain, but the accused said that he would be gentle. The offending occurred once or twice a week. KS came to know when it would happen. She said she was not able to detail everything that happened, but the behaviour went on for the two years they were posted to the town. It started a few months after they moved there. It stopped when the family moved to another posting. KS did not say that the accused said anything when the behaviour finished. (JS said the accused did say something to her. I will turn to that later.)
KS gave some detail about some incidents. She said she felt the accused’s moustache on her skin when he licked her vagina. She said the accused would commit sexual acts on her in the church proper. He would take her from the recreational area and sit her up on a ledge at the edge at a raised platform in front of the church. She said there were stairs at the side of the platform. A good deal of time was taken in the trial exploring with witnesses the details of the construction of that platform.
The defence case was that there were no stairs at the side of the platform and that there was no ledge at the side of it. There were railings on the side of the platform but they were flush with the platform so that there was no ledge or setback of the sort that KS said she was placed on.
I pause to say that although the evidence remains unclear on this topic, I allow for the possibility that there was no ledge on the side of the platform. However it seems clear that there was a setback or ledge of some sort at the front of the platform. The accused acknowledges that.[11] KS says that she has a clear recollection of the accused sitting her up on a ledge and there licking and stimulating her vagina.
[11] T329.
KS said that there was an occasion when she noticed that there was some blood on her underpants which she attributed to the accused causing when he digitally penetrated her vagina. She said that after noticing the bleeding she tried to avoid the accused’s advances. She tried pushing him away. She remembers hiding behind flags which were up on the platform in the church.
KS says she remembers the accused committing acts on her in the church when there was set up on the platform a display of harvest vegetables.
KS was challenged in cross-examination on a number of topics. I will not canvas them all, but it was suggested that she:
·colluded with her sister;
·failed to mention aspects of her evidence in statements to the police;
·was internally consistent in her evidence and inconsistent with her sister;
·was mistaken about her account of the platform in the church and about the accused’s attendance at the church;
·was uncertain whether offending had taken place when speaking to a friend.
Mr Mead points to several aspects of her evidence which KS did not mention in witness statements. I have not read the witness statements but relying on the unchallenged questions in cross-examination of KS, and KS’ general acquiescence in the propositions being put to her, it appears she did not mention the ‘Harvest Festival’ incident until April 2017. She did not mention hiding from the accused behind the flags on the platform until April 2017. She did not mention evading the accused until September 2016. Whereas in her evidence KS said she had some memories of the accused being in their house at times, although no abuse occurred there, she told police in 2004 that she had never seen the accused in their house, although he may have come into the house sometimes for coffee.[12] Whereas in her evidence KS said she had a recollection of there being blood on her underwear after abuse by the accused, she was less sure of that recollection in her witness statement in 2004.[13]
[12] T141.
[13] T146.

In my view these discrepancies do not damage KS’s credibility. It is unsurprising that after so long a time, some matters will be overlooked, or not even remembered in witness statements.
It was put to KS that she had told a social worker in about 2000, that she ‘thought’ she had been sexually abused as a child. She had apparently had some form of post-natal depression and was having difficulty breast feeding. She had sought assistance from a counsellor.
KS agreed that she had said words to that effect to the social worker, but she explained that anything she said suggesting uncertainty on her part had nothing to do with uncertainty about what had happened to her. Rather, she was uncertain how the law would regard or classify what had happened to her.[14]
[14] T100-103.
In my view the terms of KS’s conversations with the social worker do not damage her credit.
In my view KS gave her evidence in a very straightforward manner. She did not appear in anyway evasive. She readily admitted previous inconsistent statements or failures to mention things in police interviews.
As I have said, much time was taken up in the trial with trying to determine details of the structure of the platform at the front of the church on which KS said the accused placed her at times when he sexually abused her. She said she was placed on a ledge at the side of the platform and in that position the accused performed acts of cunnilingus. Although the evidence is far from clear, I allow for the possibility that there was no ledge or setback at the edge of the platform as KS says there was. However, as I have indicated there is evidence that there was such a setback at the front of the platform. The railing at the front of the platform was set back some little way from the edge of the platform so that there might be said to be a ledge in that location. If KS is wrong about the location of the ledge, that does not, in my view, damage her credit. She was very clear about being placed on a ledge in the general area of the platform and in that position being sexually abused.
JS
JS was 4½ when the family moved to the town. She said that within the family she felt that her brother and sister were close to each other but they excluded her. As an adult she and her sister are estranged.
She said the accused’s attention to her was very welcome. She said it was nice to have someone care after her.[15] The accused would cuddle and tickle her. He would have her on his lap. He called her princess. Even when he began touching her in a sexual way she found it pleasant.[16] As a child she had no idea how inappropriate the touching was. She said the accused was frequently at the church. JS would see him on Saturdays and after school during the week. Although she saw him at church on Sundays there was no inappropriate touching then.
[15] T180.
[16] T183.
JS’s account of the accused’s sexual offending is more extensive than that of KS. While JS says the accused touched her on the vagina, engaged in digital intercourse and cunnilingus and caused her to touch his penis, all of which KS said the accused did to her, JS says the accused also touched her on the breasts, engaged in fellatio and penetrated her vagina with his penis and a spoon. Not only were the types of offending more extensive than those alleged by KS but the circumstances surrounding the acts were more extensive. The accused caused JS to take her clothes off at times. He sometimes took his own clothes off. When he committed fellatio he would ejaculate into her mouth. She said it tasted horrible. He would give her a glass of water or a lolly. He told her to lick his penis like an icy pole.
If anything he did hurt her she would tell him to stop and he would stop. The first time he inserted a spoon into her vagina it felt cold. She told him about that. Thereafter he warmed it beforehand by rubbing it in his hands. After he removed the spoon he would put it in his mouth. Quite frequently after insertion into her vagina JS would notice blood on her underwear. She would throw the underwear away. The offending occurred in what JS described as the “backroom” at the church and also on the platform in front of the church itself.
JS said she so liked the accused’s attention to her that she would seek him out. She would follow him around when her brother and sister were not there.
JS said that just before the family left the town for the next posting the accused had a menacing conversation with her on the driveway of their house. He told her that if she told anyone what he’d been doing he’d kill her, her family and her pets. She said she was devastated. She said she had no idea why she was in trouble. What he said still affects her.
JS was asked questions in cross-examination about her communications with KS about the accused. She acknowledged certain communications but said that the two had been distant with each other as adults and neither told the other any detail of the abuse.
JS acknowledged that aspects of her evidence were not included in her statements to the police. The allegation of abuse occurring on the platform in the church was not mentioned in the original statement in 2004. That did not appear until her statement in 2014. She had not mentioned the accused abusing her in the table-tennis room in the 2004 statement.
In my view those omissions do not damage JS’s credit. Is it not surprising that details like that would be overlooked, or perhaps entirely forgotten, until a later memory is revived.
Defence counsel explored with JS aspects of her mental health. JS acknowledges that she has had episodes of mental ill health and has, over the years, received psychiatric and psychological therapy. She has been admitted to hospital suffering mental illness. She once took a substantial overdose of medication such that she became delusional and was admitted to hospital. The proposition that she had once been diagnosed with schizophrenoform psychosis was erroneously put to her.[17] JS denied that she’d ever been given such a diagnosis. The cross-examiner was unable to point to any record of any such diagnosis. There appears to be no basis for the suggestion.
[17] T223-225.
I find that there is no evidence whatsoever to suggest that JS’s evidence of sexual abuse proceeds from, or is explained by, mental ill health. JS made no secret of her emotional fragility. She freely acknowledged that for years she has had to seek mental health treatment. In my view her admitted fragility does not damage her credibility. She gave her evidence in a straight forward manner. She acknowledged appropriately deficits in her memory. She acknowledged that she had failed to mention to the police some minor aspects of a present testimony.
MS
The mother of the complainants, MS gave evidence. She is in her mid 80s. Her husband died in 1997. She gave evidence on three topics which bear on the factual disputes in the trial.
The first is the accused’s access to her two daughters. MS said that the accused was employed by the church to clean it on Saturdays. While her husband actually arranged for the accused to be paid, she understood that the church paid him for the work.
In answer to questions in cross examination, MS did not dispute that the accused may have had a week day job, but he did come to the church on Saturdays. She said that in addition to Saturdays he would come to the church at other times. She had seen him in the back room of the church playing with her children. She never saw any physical contact between the accused and the children but she did him playing with them. That evidence is at odds with the accused’s evidence in three respects. The accused denies he ever cleaned the church. He denied he was ever at the church other that for quite specific functions – Bible Class, band practice and church on Sundays. He denied ever playing with the children.
The second topic relates to a recollection MS has of seeing blood on JS’s underwear on one occasion. She remembers deciding not to discuss the matter with JS but she looked carefully at JS in the bath to see if she could see any injury. She could see no injury so she did nothing more about what she had seen.
The third topic relates to the construction of the platform in the church. She was asked if there was any ledge or set-back on the side of the platform. She said she could not remember.
In my view there was nothing in the content or manner of MS’s evidence to suggest she was untruthful or unreliable. She spoke clearly and in moderate terms.
Ellen Kop
The final civilian witness for the prosecution was Ms Kop. She is a friend of JS. She came to know the whole family when they moved to Victoria. She is eight years older than KS. She said that in 2006 JS told her that she had been sexually abused by the accused. At the time JS showed her a photograph of the accused taken among a group of church cadets. I give myself the appropriate warning about complaint evidence. The complaint is not evidence of the truth of its terms. It may only be used as evidence of consistency.
Other Evidence
At the end of the prosecution case there was an agreed fact that JS, as a teenager, had once told a boyfriend that “something had happened to her”. The boyfriend could not recall if JS was referring to a sexual matter. I do not put any weight on that evidence.
I will not canvass the evidence of the investigating police officer, Detective Brevet Sergeant Michael Clark. He speaks of the various investigations he made about, inter alia, the construction of the platform. His platform evidence does not clarify that topic.
The Defence Case – The Accused
The accused gave evidence himself. He was not obliged to, but having done so I treat his evidence in the same way I do that of any other witness. He called his brother George Siebert to give evidence.
The accused is 61. After leaving school he completed a fitting and turning apprenticeship in 1977. Effectively that meant that he was in that apprenticeship for the two years that the S family were living in the town. He said he worked at that job from 8.00am to 5.00pm Monday to Friday and from 8.00am to 12 noon every other Saturday. On Tuesday and Thursday nights he went to SES activities. He went shooting at a rifle range with his family on Saturday afternoons. He was an active member of the Salvation Army. He went to Sunday School from age five. He became a Sunday School teacher. As soon as he completed his apprenticeship he left the town and undertook training at the Victorian Salvation Army College. He became a Salvation Army Officer.
The accused denied ever sexually offending against KS and JS. He denied ever playing with them. He only saw them on Sundays at church. He was aware that they were the Captain’s daughters, but he had nothing to do with them. He denied ever cleaning the church.
He said he only went on one occasion to the church on a Saturday. That was when the Captain sought his help in dealing with a section of the platform in the church which was sagging. The only occasions he ever went to the church during the week were for quite specific church activities. He was one of a group of three or four who went to Bible classes on Monday and Wednesday nights. He played in the church band and went to band practice on Friday nights. He was captain of the table tennis team. The team practiced on Friday nights. He did not remember practising table tennis on any night other than Friday nights.
He denied aspects of the evidence of the complainants. He denied ever wearing shorts. One of them said he did. He said he always wore glasses. One of them said he did not always wear them. He said he had a moustache all the time during 1976 to 1977. One of the complainants said he did not for a time. He said there was no ledge on the side of the platform in the church.
In cross examination the accused was asked whether either of the complainants took a liking to him and followed him around (T307). That question was asked just after the accused had said that the only occasion when he would ever see the sisters was a church on Sundays. He had earlier testified that he had had nothing to do with the Captain’s children and would not have known who they were in photographs showing them if he had not had them pointed out to him in preparation for the trial. He responded to the question about one of the girls following him by saying that, while neither of the complainants followed him around, he had noticed one of them following a fellow parishioner, whom he named. He remembered remarking to another person at the time that that parishioner has “got a girlfriend … she’s following him around like a puppy dog, you know wherever he went …”[18]
[18] See T307-312.
That particular recollection is at odds with the rest of the accused’s evidence in which he claimed to have no specific recollection of the children apart from knowing that they were the Captain’s children and he would only see them at church on Sundays.
In my view this was a significant inconsistency within the accused’s evidence. Apart from this topic, the accused claimed to have been barely aware of the complainants. He needed to have them pointed out to him in photos of them produced pre-trial. Yet on this point he has a clear recollection of one of the girls following a fellow parishioner, whom he was able to name. He even remembered commenting on what he had noticed to a third person.
George Siebert
The accused’s slightly younger brother Mr George Siebert gave evidence. His evidence was principally about the accused’s attendance at rifle shooting most Saturdays in 1976 and 1977. Mr George Siebert said that the whole family went shooting. When the shooting was at the town’s club on Saturdays, it would start at 12 noon. Sometimes the shooting would take place at other towns. Mr George Siebert mentioned Langhorne Creek, Mount Barker, Barossa, Tanunda, Whyalla, Ardrossan, Port Pirie, Mount Gambier and Bordertown. He added, “just to name a few of them” (T335). He conceded that if the accused worked each other Saturday morning, and if the shooting was at one of the more distant locations, he would not be able to attend unless he took the weekend off work, which he sometimes did. When Mr George Siebert was challenged in cross examination about his memory he became quite belligerent (T340). He was asked whether the accused had any role cleaning the church. He said “not that I know of, no” (T334).
Accepting Mr George Siebert’s account of his brother’s attendance at the rifle range on Saturdays does not account for the mornings every other Saturday, and the whole Saturday on days when the shooting took place at more distant locations.
It is convenient to here acknowledge the significant forensic disadvantage suffered by the accused in the presentation of his defence by reason of the gap of some 40 years between the alleged offending and the trial. Mr Mead drew my attention to the sorts of forensic disadvantage that that delay has caused his client. If there had been a prompt complaint the accused might have been able to access a variety of records to assist his defence. They include work records for his work times, tax records to substantiate no income from cleaning, church records for the same purpose and gun club records to substantiate his attendance on Saturdays. There might have been witnesses who could reliably testify to the structure of the church platform. Medical examinations of the complainants might have been undertaken. There might have been witnesses who could assist the accused in some way. Everyone’s memory would have been fresher and more reliable. Mr George Siebert’s recollections would have been fresher.
I bear in mind all of these difficulties.
Consideration of evidence
Before evaluating the evidence of the witnesses in the trial, I bear in mind some general principles which bear on that process.
I must give separate consideration to the two charges. While I have found that there is cross-admissibility between the evidence of the two complainants, and some evidence bears on both counts, such as for example the evidence of the mother of the accused playing with all three of the children, I must still consider each count separately. Some evidence bears on only one count. For example Ms Kop’s evidence is only relevant to Count 2 regarding touching the breasts. The evidence about KS’s underwear relates only to Count 1.
I must bear in mind that there are impermissible uses of the uncharged acts. In particular there are impermissible uses of the evidence of one complainant when considering the evidence of the other. It is impermissible to use any evidence to reason that the accused is of bad character, and likely to have committed the offences under consideration the s 34P(1)(a)). I will keep separate the permissible and impermissible uses of the evidence of the complainants (s 34P(3)).
I bear in mind the significant forensic disadvantage suffered by the accused in the presentation of his defence (s 34CB). While the accused was able to give evidence of his lack of opportunity to have committed these offences, there might have been supporting evidence that is now unavailable to him due to the four decades that have elapsed between the allegations and the trial. I have already referred to possible sources of evidence. His brother’s evidence may have been more detailed were it not for the delay.
I have already referred to the very limited use that may be made of the complaint evidence given by Ms Kop.
Count 1
I accept KS’s evidence and I reject the accused’s evidence. I will explain why.
I found KS’s evidence credible. I appreciate that there are limits to the weight that can be put on the impression of a witness in the witness box but I found KS a convincing witness. She spoke in moderate terms. There was no sign of evasion or exaggeration. She answered questions in a straightforward manner. She did not claim a perfect memory of events. She acknowledged that she had failed to mention to police, and failed ever to mention early on, events that she now gives evidence of. Specific memories were triggered as she reflected on what had happened. “Doors opened” in her memory.[19]
[19] T140.
When I say KS spoke in moderate terms, I mean she did not speak of the accused behaving in an aggressive cruel manner. On the contrary, she said that he said he would be gentle, and he was.[20] She came to trust him because of the playful way he engaged with her.[21] He behaved like a big brother.[22]
[20] T57.
[21] T50-53, T79.
[22] T63.
There were what I would call telling details in her account. There were details you would not expect in a false, two-dimensional story. She felt his moustache on her vagina.[23] She felt comfortable when balanced on the ledge.[24] She felt shame about her underwear becoming soaked.[25] She tried to push the accused away or avoid contact with him after noticing the blood on her underwear.[26]
[23] T64.
[24] T68.
[25] T70.
[26] T73.
I have already explained why I have rejected the defence challenges to KS’s reliability. I am now articulating the reasons why I make positive findings about her credibility. I am not being exhaustive about the aspects of her evidence which lead to those positive findings. I have given only examples. I believe her evidence.
KS’s evidence is supported in a very material particular by her mother. Her mother, MS, said that the accused was employed as a cleaner. I do not believe MS was untruthful or unreliable in that evidence. She acknowledged that she did not know the details of his work as a cleaner but she was adamant that he cleaned the church on Saturdays.[27] She acknowledged in cross examination that he may have had another full-time job, but she remained firm that he cleaned the church on Saturdays.
[27] T240.
Of greater significance was MS’s observation that the accused played with her children. Denial of that observation is central to his defence. MS did not claim to see any physical contact between the accused and her children, but she did see him playing with them in what she described as the back room of the church.[28] I accept that evidence. I reject the accused’s evidence on that topic.
[28] T232.

I also accept MS’s evidence that she noticed blood on KS’s underwear on one occasion. I find her evidence on that topic compelling. The evidence of both sisters about their parents’ reticence about discussing sexual matters explains why MS chose not to speak to KS about what she had seen. She chose instead to look carefully at her daughter in the bath. When she saw no injuries, she said nothing. Of course that observation may be the result of an injury KS suffered which was not caused by the accused and which she has forgotten. Nevertheless I find MS’s evidence supports in a small way KS’s evidence on that topic.
KS’s evidence is supported by that of JS. I find it improbable that JS would report significantly similar behaviour by the accused against her were it not true. JS speaks of the accused being gentle in both the grooming behaviour and the offending behaviour. I will not recount the evidence, but JS’s account is very similar in that respect to her sister’s. The offending is similar in some respects. There are four types of offending that are the same. Details of the allegations of cunnilingus are strikingly similar and unusual. Both girls say they were placed on a raised platform in the church.
It is true that there are significant differences. Unlike KS, JS never tried to avoid the accused’s attentions. She sought him out. The offending was more extensive with her. In my view both the similarities and the dissimilarities tend to negate collusion. While I will deal with the credibility of JS separately, the detail of her evidence adds to KS’s credit. The similarities between the two accounts make it improbable the two accounts are false.
I find that KS’s evidence is inherently credible. I believe it. It gains some support from the mother’s evidence. It gains further support from JS’s evidence using probability reasoning.
I found the accused’s evidence unsatisfactory. He sought to distance himself from the evidence of the complainants in improbable ways. For example, he said he never wore shorts. There is a photo of him in shorts, although I accept that that is a photograph of him in a costume playing a role in a church play. Nevertheless, the denial of ever wearing shorts is improbable.
He said that his contact with the girls was so limited that he needed someone to point out to him before the trial who they were in the various photographs. That evidence was in stark contrast to his saying that he had noticed that JS was often following around a named parishioner. He remembered remarking on that observation to a third party.
I accepted KS’s evidence about the sexual offending she says the accused perpetrated against her. I accept it beyond reasonable doubt. I reject the denials of the accused.
JS
I also accept JS’s evidence. I explain why. I found JS’s evidence credible. Her credit was attacked on the basis that she had a history of mental ill health. There was in my view no reason to reject her evidence on that account. Although at times she was anxious in the witness box, she gave her evidence in a credible, straightforward way. One of the most compelling aspects of her evidence was her account of seeking out the accused’s attentions. Unlike her sister, there was no point at which she sought to avoid him. She described him as gentle, although of course now she realises that that very gentleness is what made her so vulnerable. It is in my view highly improbable that the two sisters would speak in such detail about some of the same sorts of sexual offending. Both remember cunnilingus being a significant feature. Both speak of it occurring in similar parts of the church. It is true that JS speaks of much of the offending occurring in a back room which it would appear might not have been built until 1977. But it is unremarkable that after so long a time, she would forget that fact. It may even be that a larger proportion of the offending against JS took place in that back room in the last year of their staying in the town. It may be that more of the abuse against her occurred there rather than in the other locations. If that is the case, then the back room would be her most recent memory.
It is not just the similarity of JS’s account to that of KS that increases the probability of the account being true. It is also the dissimilarities. The offending against JS involved four further types of offending. It is also more serious in its nature. The accused was causing JS to fellate him and was ejaculating into her mouth. The accused would give her a lolly or something to drink afterwards. I find the detail of JS’s evidence persuasive, the more persuasive when JS says that she continued to seek out the accused’s attentions.
I will not repeat my findings regarding the accused’s evidence. They apply equally to my consideration of count 2.
I accept JS’s evidence about the sexual offending she speaks of. I accept it beyond reasonable doubt. I reject the accused’s denials.
Verdict
I find the accused guilty of each of the two counts of persistent sexual exploitation of a child.
I am satisfied beyond reasonable doubt in respect of count 1 that the accused committed the four types of particularised offending multiple times over a period of approximately two years.
In respect of count 2 I am satisfied beyond reasonable doubt that the accused committed the eight types of particularised offending multiple times over a period of approximately two years.