R v Soergel
[2023] SADC 179
•19 December 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SOERGEL
Criminal Trial by Judge Alone
[2023] SADC 179
Reasons for the Verdict of her Honour Judge Tracey
19 December 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused was the brother of the complainant's stepfather. The accused was charged with one count of maintaining an unlawful sexual relationship contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). Interviews of the complainant admitted pursuant to s 13BA of the Evidence Act (SA) 1929.
Verdict: Guilty.
Criminal Law Consolidation Act 1935 (SA) s 50(1), s 56(1), s 58(1)(b); Evidence Act 1929 (SA) s 13BA(3)(b), s 34P(2)(a), referred to.
R v SOERGEL
[2023] SADC 179
Robin Soergel (the accused) is charged as follows:
First 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
Robin Soergel at Adelaide and other places, between the 28th day of January 2019 and the 26th day of January 2021, maintained an unlawful sexual relationship with JS a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards JS, namely:
(a) touching her breasts on more than one occasion;
(b) hugging her whilst both he and she were naked on more than one occasion;
(c) inserting his finger or fingers into her vagina on more than one occasion;
(d) touching her thighs on more than one occasion
Prosecution Case
The prosecution case is that the accused sexually abused JS on multiple occasions between January 2019 and January 2021. The alleged abuse occurred at the accused’s house in Salisbury North and then at his house in Paralowie. The alleged abuse is also said to have occurred on several overnight trips away. The alleged conduct concerned the accused touching JS’s breasts, hugging her whilst both he and she were naked, causing her to touch his penis, inserting his finger or fingers into her vagina and touching her thighs.
On the prosecution case, JS would initially only see the accused at family events such as Christmas and Easter, however, as her family life started to become unsettled, JS would visit the accused to ‘get away from her family home’.[1]
[1] TT 8.8-9.
JS’ first memory of sexual abuse was on a camping trip with the accused when her mother, stepfather and sister were also present. On that trip the accused and JS shared a tent, and it is alleged that the accused became ‘touchy and cuddly’ whilst the two were in bed.[2]
[2] TT 8,23.
Thereafter, the offending would occur when the accused and JS were watching TV or a movie, when there were naked cuddles and massages which would include the accused touching JS’s inner thigh where the accused would play a ‘traffic light game’ with her.
On a trip to a ‘mining place’ in July 2019, said by the prosecution to be the Paxton cottages in Burra, the accused and JS would shower together and the accused then offered JS a massage. While JS was trying to get to sleep, the accused told her that he was going to become ‘possessed’ and that the only way to ‘bring him back’ was if she touched his penis, or if he put his hands on her breasts. During the night the accused woke JS by groaning and putting on the persona of a demon, who instructed her to touch his penis to ‘bring him back’.
On an occasion when JS and the accused stayed overnight at the Gladstone Gaol, JS was awoken by the accused who was a ‘bad demon’. JS is said to have known that she needed to rub the accused’s penis to ‘bring him back’, and on this occasion once she touched his ‘special spot’ he ‘came back’.
The prosecution case included uncharged offending involving the accused asking JS to give him hugs as payment if she wanted to buy things such as food or lollies. There was also an occasion where the accused told JS that she was the closest thing he had to a girlfriend. This evidence was led by prosecution to show that the accused was normalising intimate and sexual behaviour.
JS first made disclosures to her friend SS, who recalled that JS told her that her ‘uncle’ had raped her. This conversation was said to have occurred in 2019 when they were in year 7.
The matter was first reported to police by a person named Chantel McLeod and an investigation commenced. The accused was arrested on 31 July 2021 and participated in a brief interview with police, where he said that while he spent time with JS, he denied the allegations made against him.
Witnesses
The prosecution called the following witnesses:
·JS (the complainant).
·SS (JS’s friend to whom she complained).
·Debra Pillar (Caretaker of the Gladstone Gaol)
·Catherine Turner (the accused’s former partner)
·Karen Thompson (accused’s former housemate)
·Stephen Thompson (accused’s former housemate)
·Brevet Sergeant Julie Castle (investigating officer)
Elements of the Offence
Sexual Abuse of a Child
The prosecution must prove beyond reasonable doubt each of the following elements:
(1)The accused knowingly maintained a relationship with JS during the relevant period.
(2)The accused was an adult during the relevant period.
(3)JS was a child under the age of 17 during the relevant period.
(4)The accused engaged in two or more unlawful sexual acts with JS in the course of the relationship.
The dispute at trial concerned only the fourth element.
The prosecution alleges that particulars (a), (b) and (h) are acts of indecent assault while particular (f) amounts to the offence of unlawful sexual intercourse. As to particular (d), JS gave evidence that the accused told her to touch his penis and made physical contact with her by putting her hand on his penis. Accordingly, the unlawful sexual act could amount to either procuring an act of gross indecency pursuant to s 58(1)(b) Criminal Law Consolidation Act or indecent assault pursuant to s 56(1) Criminal Law Consolidation Act.
The elements of aggravated indecent assault are as follows:
Aggravated Indecent Assault
The prosecution must prove beyond reasonable doubt each of the following elements:
(1)The accused intentionally assaulted JS.
(2)The assault occurred in circumstances of indecency; that is, the indecent circumstances must contain a sexual connotation and the application of force was unlawful.
(3)JS was under the age of 14 years at the relevant time.
The elements of the offence of procuring an act of gross indecency are as follows:
Procuring an Act of Gross Indecency
(1)The accused incited or procured JS to perform the act as she has alleged.
(2)The procurement or incitement was a voluntary act on the part of the accused.
(3)JS was under the age of 16 years at the time.
The elements of the offence of unlawful sexual intercourse are as follows:
Unlawful Sexual Intercourse
The prosecution must prove beyond reasonable doubt each of the following elements:
(1)The accused had sexual intercourse with JS.
sexual intercourse includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving –
(a) Penetration of the labia majora or anus of a person by any part of the body of another person or any object; or
(b)…
(c)…
(2)JS was under the age of 14 years at the relevant time.
General directions
I direct myself as follows:
·The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The prosecution must prove each element of the offence beyond reasonable doubt, and it is not sufficient for the prosecution to prove a mere suspicion of guilt or that the accused is possibly or probably guilty.
·I must bring an open and unprejudiced mind to the case.
·I must assess each witness as to their truthfulness and reliability. I can reject or accept all or a part of a witness’s evidence.
·My use the words ‘proved’, ‘established’ or ‘satisfied’, means to a standard of beyond reasonable doubt.
·If I am satisfied that there is a reasonable explanation consistent with the innocence of the accused, or I am uncertain where the truth lies, then I must find the count has not been proven beyond reasonable doubt.
·JS, SS and Catherine Turner gave evidence with special arrangements in place. I must not draw an adverse inference against the accused because of those arrangements, nor allow them to influence the weight that I give the witnesses evidence.
·The accused elected not to give evidence, as was his right. I have not drawn any inference adverse to him because of his exercise of that right.
Agreed Facts
The following facts were agreed:
Age
1.The accused, Robin Soergel, was born on 28 October 1979.
2.The complainant, [JS] was born on 29 January 2007.
School Records
1.[JS]was enrolled at the Bethany Christian School in 2018. She was in year 6 that year.
2.[JS] was enrolled at the Temple Christian College in 2019. She was in year 7 that year.
3.[JS] was enrolled at the Paralowie R-12 School in 2020. She was in year 8 that year.
4.[JS] was enrolled at the Paralowie R-12 School for the first half of 2021, before transferring to Salisbury East High School. She was in year 9 that year.
Adelaide Haunted Horizons
1.In October 2014, the accused and Catherine Turner attended a tour run by Adelaide Haunted Horizons at Tailem Town.
2.Portions of that tour were filmed on camera. The footage was later downloaded onto a USB and provided to Brevet Sergeant Julie Castle.
3.A copy of this footage is tendered as Exhibit P22.
Adelaide Gaol
1.Gary Joyce is the Manager for the Visitor and Commercial Services for the National Parks and Wildlife Service of South Australia, department for Environment and Water. The Adelaide Goal is managed by that department.
2.Mr Joyce has held this role from 2014 to the present.
3.There have been no sleep-over accommodation functions at the Adelaide Gaol from 2014 to present.
Paxton Square Cottages and Burra Caravan Park
1.Anne Tomsen is one of the managers of the Paxton Square Cottages and Burra Caravan Park. The Paxton Square Cottages are located at 1 Kingston Street, Burra 5417. The Burra Caravan Park is located at 12 Bridge Terrace, Burra 5417. The reception for both areas is at the Burra Caravan Park.
2.On 6 July 2019, a person made a booking with the Paxton Square Cottages and Burra Caravan Park via the site Booking.com. The booking was for Studio Cottage number 31. The following information was provided by the person making the booking:
(a)Guest name: Robin Soergel
(b)Contact email: [email protected].
(c)Mobile phone number: +61 421 069 683.
(d)Post Code: 5108.
(e)Arrival date: Saturday 13 July 2019.
(f)Departure date: Monday 15 July 2019.
(g)Duration: 2 nights.
(h)Number of guests: one child and one adult.
3.On 22 February 2022, Anne Tomsen took a series of photographs of the exterior and interior of Studio Cottage number 31 and emailed them to Brevet Sergeant Julie Castle.
4.These photos are tendered as Exhibit P12.
Prescribed Interview of SS
1.On 11 November 2021, Senior Constable Kate John conducted a prescribed interview with [SS] pursuant to section 13BA of the Evidence Act 1929.
2.A recording of this interview is tendered as Exhibit P8.
WS
1.On 26 February 2021, [WS, JS’s father] received a phone call from two employees at the Department of Child Protection, who advised him that [JS] was not able to live at home anymore.
2.[WS] picked up JS from the [JS’s grandmother].
3.On that day, [JS] was placed in the care of [WS] and has lived with him since.
4.One or two months after 26 February 2021, [WS] obtained a mobile phone for [JS] to use. The contract for the phone commenced 1 May 2021.
Witness Evidence
JS
JS gave her evidence in prescribed interviews with police on 27 May 2021 and 13 February 2022, which were admitted into evidence pursuant to s 13BA(3)(b) of the Evidence Act 1929 (SA). At a pre-trial special hearing on 24 November 2022, JS gave further evidence, was cross-examined, and re-examined.
Police interview on 27 May 2021
At the time of this interview, JS was 14 years old. During the interview JS said that whenever she would go camping with the accused or out somewhere with him, he would touch her inappropriately, ask to grab her breasts, and have naked hugs. She would refuse him and tell him that she did not like ‘it’.[3]
[3] MFI P2 6.76.
JS described the accused as being into ‘ghost’ stuff and that he would pretend that he was possessed and would touch her and force her to touch him inappropriately.[4] She said that that whenever she would have a shower, the accused would come in to check if she was okay. She said that at the accused’s new house there was a camera in the bathroom, that she thought was turned off, but made her still ‘quite scared’.
[4] MFI P2 6.78.
JS said she would be sent to the accused’s house by her mother. She had told her mother that she hated going there. She thought that the first time she stayed at the accused’s house she was around 10 or 11 years old. She described the accused as ‘very touchy and very suicidal’.[5] He would always talk about suicide and this made her think about suicide and put her through a lot of stress and anxiety.
[5] MFI P2 6.80.
JS described visiting the Adelaide Gaol with the accused. She said she had wanted to sleep by herself because she did not like sharing a bed with older men,[6] but that the accused chose to get the double room. On this occasion the accused would wake up and check on her, or if she was watching a movie, he would force her to touch him in exchange for the movie continuing.
[6] MFI P2 7.94.
JS said the accused would always hug her a lot.[7] She described her mum noticing and getting annoyed by the behaviour and that her mother had stopped her from seeing the accused. JS said that now she is with her dad and ‘it’s all stopped at the moment hopefully’ and that she didn’t really want to go back home.[8]
[7] MFI P2 8.98.
[8] MFI P2 8.102.
JS said that she would go on camping trips at times with her mum, stepfather, sister and the accused. On those occasions there was not enough room in the tent so she would have to share a tent with the accused. During these trips the accused would give her a lolly or food and then ask what he would get as payment, which JS meant she had to give him a hug.[9]
[9] MFI P2 9.110.
The first occasion JS remembered something happening on a camping trip was probably two years before the interview and after she had hit puberty.[10] She had to share a bed with the accused, and he got ‘a little bit touchy and cuddly at night’.[11] He would grab her waist and hug her tight. She said she thought the accused was asleep, or pretending to be asleep, so she tried to sleep on the edge of the bed. Ever since that time it just kept happening when she went on trips solely with the accused, as well as when she went with the whole family.
[10] MFI P2 9.114.
[11] MFI P2 10.128.
JS said she would go camping with the accused every single weekend and described it as being fun until she hit puberty and things started happening, which she thought was ‘weird’ because the accused went to church.[12]
[12] MFI P2 10.126.
JS recalled an occasion when the accused was driving, and she was sitting in the front of the car. The accused told her that if a boy ever tried to play a game with her, she had to break up with him.[13] She said the game was the red light or traffic light game. To demonstrate the game the accused would touch her.
[13] MFI P2 11.144.
If she had wanted something, the accused would ask for hugs as payment. The hugs would last for about a minute or so and mostly occurred in private areas but had happened twice in public.[14] JS said the accused would try and massage her on her hips, legs, and thighs.[15] He would also grab her breasts and leave his hands there. He would only do it in bed when he would bring her in to his room.[16] She said that when she was in bed, he would be ‘touchy-feely’ and try and take her pants off and force her to touch his penis. She said she could not remember the first time she touched the accused’s penis, but that it occurred when they were watching ‘a movie or something’.[17] She said the accused would make her ‘rub it and all that and mm, ah really bad things, I don’t really like bringing them back into my head’.[18] The accused would grab her hand and ‘put it there’ and would start moving her hand while she was trying to push it away, but he would always put it back there.
[14] MFI P2 13. 172.
[15] MFI P2 14. 180.
[16] MFI P2 15. 190.
[17] MFI P2 16. 206.
[18] MFI P2 16. 208.
JS said the accused would put his fingers inside her vagina and play with her ‘girly bits’ which she later described as her vagina, whenever they would watch a show or a movie.[19] She said she tried to speak up but was too scared.[20]
[19] MFI P2 17. 224.
[20] MFI P2 17. 232.
Whenever she went home the next day, she would have to keep her mouth shut because she knew if she said anything she would probably be called a liar.
She said she had started staying with the accused at his house when she was around 10 or 11 years old. The sexual assaults she descried had started when she was nearly aged 13, up to 14 and stopped probably at the start of ‘this year’ (that being 2021).
JS said she assumed that the last time the accused offended against her was at his place, ‘this year’ (that being 2021) as she did not think she had been camping that year.
JS said she believed that there was a GoPro set up at the accused’s new house because the accused thought there was paranormal activity around his place, and he saw ‘paranormal stuff’.[21] She was told that the camera was turned off.
[21] MFI P2 20. 270.
JS said the accused told her that he could get possessed by demons because he studied them. When he would get ‘possessed’ he would put on a deep voice. Sometimes he would pretend he was a girl, an old man or a young boy, and tell her that the only way to get him ‘back’ was to touch his penis or for him to have his hands on her breasts.[22]
[22] MFI P2 22. 298.
JS said the accused had done this twice. In the gaol and when they were ‘somewhere like this haunted old place’. She said she did not remember what it was called but that it was ‘like an old mining thing’.[23]
[23] MFI P2 22. 300.
JS alleged she went with the accused to the ‘mining place’ in September 2020, for approximately 3 days, up to a week. While they were there they would go for walks, explore and get food. The accused would bring his iPad and they would watch movies together. JS said that the accused would make them dinner and they would have a shower. She said she would try and have her showers first so then she could have them ‘done and dusted’ and nothing bad could happen to her.[24] JS said that during her stay at the mining place the accused asked her ‘what happens if we have the shower together’, and this scared her. When she said ‘no’, the accused would walk off and tell her that he wanted to give her a massage.
[24] MFI P2 23. 314.
JS said that it was during this same trip, when she was trying to go to sleep, the accused woke her and said that he was going to get ‘possessed soon’.[25] He told her that to get back she had to touch his ‘thing’ or he had to touch her breasts.[26] The accused started making groaning noises, acting as a girl, using a high pitched voice, while still having his eyes closed. The accused was acting as possessed by a female demon, who was apparently very sexually active. JS said that the ‘demon’ told her that there was another person coming who is ‘even bader’ than her, who was very inappropriate and who would touch her and that she should do what he told her to do.[27]
[25] MFI P2 24. 326.
[26] MFI P2 25. 328.
[27] MFI P2 25. 332.
JS said that she then tried to fall asleep and was again woken by the ‘bad demon’ and she would have to touch his ‘special spot’. She said she had been scared and did not know what was going on so she ‘had to’.[28]
[28] MFI P2 25. 334.
After that the accused woke up and asked her what had happened. JS said that she had touched the accused underneath his clothing.
The other time the accused became ‘possessed’ was when they were on a trip to the Adelaide Gaol, and she was staying in a room with the accused. After she had touched his ‘special spot’ the accused ‘came back’ and asked her lots of questions about what had happened. The touching occurred underneath his clothing.[29]
[29] MFI P2 28. 360.
JS said the first person she told about the accused’s offending was one of her closest friends, SS. She had told SS that the accused had been very ‘touchy’. SS was very annoyed about it and told JS to tell the police. JS told SS that she was too scared. JS said that they had probably had a few conversations about it but not a lot. They would talk ‘once in a blue moon’ about it.[30] JS said that she had spoken to SS in person and over the phone.
Police Interview on 13 February 2022
[30] MFI P2 32. 428.
At the time of this interview, JS was 15 years old.
JS again described the camping trip she and her family went on where she was forced to sleep in a tent with the accused.
When asked to describe what she meant on the previous occasion when she said her memory was erased, JS described not remembering ‘a lot of stuff’ and just wanting to forget about it, which she had.[31]
[31] MFI P4 8. 102.
She said that she was forced to ‘do like naked… cuddles’[32] with the accused when she was staying with him watching shows about paranormal activity. The accused would try and take her shirt off and throw it somewhere.[33] He would then start cuddling her and she would feel this thing pressed against her which she wouldn’t like.[34] She described that thing she was referring to first as a ‘sausage’ and later as the accused’s ‘dick’.[35]
[32] MFI P4 9.112.
[33] MFI P4 9. 118-121.
[34] MFI P4 9. 124.
[35] MFI P4 10. 128-137.
JS said that both she and the accused would wear ‘nothing’ during the naked cuddles. The accused would take her clothes off. She said she did not really know what he looked like when he was naked, because she didn’t like looking at people like that.[36] She thought the naked cuddles probably occurred about four or five times, mainly at his old house.
[36] MFI P4 12. 160.
When describing the accused’s ‘old’ house, JS said that she remembered that there were two married people living at the house with the accused. The house had a spare room, across from the accused’s bedroom which is where she would sleep. She recalled staying at the accused’s house on the weekends either weekly or fortnightly and being roughly around 12-14 years old.
JS said she guessed that she would likely be wearing pants when the accused would massage her after showering. She said the accused made her take off her t-shirt and would start massaging her back and stuff and he would try and like get her over to her stomach.[37] She described the massage as around her breasts, and that she would try and just lay there so he wouldn’t be able to turn her over’.[38] He would flip her over and start massaging her breasts, when she was not wearing clothes.
[37] MFI P4 18. 272.
[38] MFI P4 19.276.
The accused would also massage her inner thighs, ‘inching closer’ and she would try and close her legs.[39] She said she was probably wearing pyjama pants and underpants.[40] She said she thought the accused tried to massage her on around 10 occasions.
[39] MFI P4 21. 312.
[40] MFI P4 23. 338.
JS said that she had spoken to her stepdad and her mum about the accused hugging her a lot and they had told her they would stop her from seeing him.[41] She said they didn’t want her to see him for a while, which did happen. But then they made her see him again and she stayed over at his new place. She described having her phone and playing games on it.
[41] MFI P4 25. 372.
She said she was only allowed to talk to her mother and stepfather ‘a little bit’ and that ‘if I tell them the rest they would be like you’re lying’. She agreed that the conversation would be shut down.
She explained that this might have been because when she was younger, she would lie a lot to get out of school.[42] She said her mother had not cared about her emotions. She went back to see the accused about 3 times after she had told her mother about the accused being ‘huggy’.
Pre-trial hearing on 24 November 2022
[42] MFI P4 29. 420.
At the time of the pre-trial hearing JS was 15 years old.
JS said she was introduced to the accused through her mum’s partner when she was in year one.[43] At first, she would only see the accused at family events, like Christmas and Easter.[44] Eventually she saw him more frequently. She said that her mother was fighting a lot with her partner and that her mother just wanted JS ‘out of her hair’. She would see the accused every weekend but couldn’t remember how it was organised.[45] She described her home life as very confusing at the time and that there would be a lot of fights, in which she did not want to be involved.[46] JS said that these fights impacted her relationship with her mother and that in order to escape the fighting she would either go to her friends’ houses, or if the accused invited her, she would go with him. [47]
[43] MFI P9 13.24.
[44] MFI P9 13.34.
[45] MFI P9 14.27.
[46] MFI P9 15.1-2.
[47] MFI P9 15. 22-23.
JS confirmed that she remembered speaking to BS Castle in May 2021 and February 2022 and made disclosures of sexually inappropriate things the accused did to her. She recalled telling the detective about a camping trip she went on when she was in year 6, with the accused and her family. She that as her mother, stepdad and her sister were in one tent there wasn’t enough room for her, so she had to sleep in the accused’s tent.[48] The tents were near each other.
[48] MFI P9 17. 16-18.
JS said that on this trip the accused was ‘touchy and cuddly’ and he would be grabbing her legs and trying to pull her in for hugs. He was also touchy near her breasts.[49] She wasn’t sure if the accused was touching her on top of or underneath her clothing. She described having been too scared to speak to the accused about what happened on that trip because ‘everything was a bit scary’.[50]
[49] MFI P9 19. 20-22.
[50] MFI P9 20. 12.
JS said she went on multiple camping trips with the accused and suggested that these trips would occur fortnightly. She thought that the accused would probably organise these trips with her mother. Mostly it would just be herself and the accused.[51] JS described sleeping in a tent on a blow-up mattress next to the accused.
[51] MFI P9 20. 32-34.
JS described visited a ‘mining place’ where the accused became ‘possessed’. She was unsure how old she was at the time of the incident. She recognised the place she stayed in the photographs in exhibit P2.[52]
[52] MFI P9 26. 27.
JS said that when she was saying his ‘thing’ or ‘special spot’ in her previous interviews, she was referring to the accused’s penis. She was rubbing his penis under his clothing. She thought the rubbing only lasted a few seconds and she couldn’t remember what his penis felt like. She said she had asked if she could sleep in the single bed, but the accused told her to sleep in the double bed. She said the accused tried to massage her, along her back, near her legs and near her breasts underneath her clothing.
JS said she recalled speaking to BS Castle about a trip she went on with the accused where an incident occurred at a gaol. JS said she thought it was Adelaide gaol but could not remember which one. She described that the room they stayed in, had a picture above the bed that ‘if you moved it, it would look different’. It had a double bed and single beds and a mirror.[53]
[53] MFI P9 30. 23-26.
During this trip, she and the accused shared a double bed. The accused told her to touch his special spot and she rubbed the accused’s penis underneath his clothes for a few seconds, then let go. She could not recall what his penis felt like. The accused may have touched her on her breasts on that occasion, but she couldn’t quite remember, and was unsure if this occurred underneath or on top of her clothing.[54]
[54] MFI P9 31. 27.
JS said that the red-light traffic game occurred prior to the times when the accused became ‘possessed’. The game occurred in a car, when she was sitting in the front seat, with the accused driving. She said that when she told BS Castle that on this occasion the accused did more ‘touchy stuff’ she meant that he was hugging a lot, but she could not remember whether he touched her anywhere on her body on this occasion. She said that the accused would always hug her all the time and sometimes made her uncomfortable.[55]
[55] MFI P9 32. 34-35.
JS said that when she stayed at either of the accused’s houses, the accused would bring her into his room by watching shows and sometimes would hug her or touch her inappropriately.[56] She would be watching shows on his tablet in his room.
[56] MFI P9 38.26.
JS said that when she told BS Castle that she was forced to rub the accused’s penis, she didn’t really know what to do so she did what he told her. She would touch it for a bit and then stop.[57] She could not remember how it felt when she touched the accused’s penis and did not remember if anything happened to the accused’s penis when she touched it.
[57] MFI P9 39. 14.
JS recalled telling police that the accused inserted his fingers in her vagina. She could not recall what the accused would do with his fingers or how the accused would touch her vagina but that it would feel ‘sore’ and that it would just hurt a lot and she didn’t like it.[58] It would make her very uncomfortable.[59] She said that she didn’t know ‘what to say or do’.[60]
[58] MFI P9 40. 1.
[59] MFI P9 40. 1-2.
[60] MFI P9 40. 5.
JS referred to times where the accused would massage her, including massaging her inner thigh area. During the massages she would be lying on his bed watching shows, at both of his houses and she was not wearing clothes.
JS said that the accused told her she was ‘the closest thing that I have to a girlfriend’.[61]
[61] MFI P9 40. 33-34.
She thought she stopped seeing the accused in about year 8. In 2020, she moved in with her father.
JS confirmed that SS was the first person she spoke to about the offending and had told her as soon as she had her phone in 2019, when she was in year 7. She was at her dad’s house at the time, texting SS. She said she told SS initially via text but said that they also talked about it at school and some other private places.[62] She couldn’t remember the exact words she used to tell SS.
[62] MFI P9 43. 8-9.
In cross-examination, JS confirmed that there was a point where she and her mum were fighting a lot and it was really confusing and upsetting. The fights were sometimes between herself and her mum, and sometimes between her mum and her partner. She agreed that her mum would organise for JS to go to go places to ‘get her out of the way’,[63] including at her grandparents’ house and sometimes the accused’s house. JS agreed that spending time with her grandparents and with the accused gave her a reprieve from her home life.[64]
[63] MFI P9 45. 14.
[64] MFI P9 45. 25.
JS said on the camping trips they had a tent with three different rooms that had walls separating them inside the tent.
JS was asked why she was scared on the first occasion they went camping, given her mother was right next door. JS said that she ‘felt uncomfortable at the moment and just the fear and scared, it just came’.[65] She described also being scared on other occasions when they all went camping together. JS confirmed that she would visit the accused in the Salisbury North home and knew that two married people owned the house and would be around sometimes. Although JS was scared, she never said anything to the owners.
[65] MFI P9 46. 32-34.
JS said that she was still visiting the accused quite regularly, fortnightly, or weekly, after he moved in the house in Parafield Gardens.
JS confirmed that she watched ‘paranormal stuff’ with the accused at his houses and agreed that might have been because she liked ‘that kind of stuff’.
JS described the picture she was referring to at the Adelaide Gaol was ‘like holographic, so if you moved it looked different’.[66] From one side it looked normal and then from another side it looked like a ghost.
[66] MFI P9 49. 20-21.
She confirmed that she thought her mum, her mum’s partner and the accused would organise for her to spend time with the accused and the accused would pick her up.
In reference to the red-light game, JS further described the game as:
‘It was basically like where he put his hand on my leg and he was like an ambulance or a fire truck and he would say ‘tell me to stop’, but his hand was an ambulance or a fire truck and, since ambulance and fire trucks don’t stop at red lights, he just kept going’.[67]
[67] MFI P9 50. 10-15.
She confirmed the game occurred while the accused was driving, and that it occurred at a red light and only lasted a few seconds. She wasn’t sure if the accused was looking at the road during this game, as she ‘wasn’t really looking at his face, but rather, was just looking down’.[68] She gave evidence that the game started because the accused was saying something about not letting a boy play ‘this’ game with her.
[68] MFI P9 50. 27-28.
JS described being much happier now that she was living with her father. She denied ever being told that she should ‘make up’ a complaint like this to police, to get something out of it. She denied that anyone told her she should make a compliant to break up her mum and stepdad, or so she could move in with her dad.
JS said that as soon as she got her phone when she was visiting at her dads, she used the application snapchat to tell SS about the sexual abuse. She thought she used the text messaging function to tell SS and that the messages were saved. She couldn’t recall if police ever asked for the messages. JS confirmed that it was in year 7 when she told SS. She told SS via text about the abuse first, but then after at school on a face-to face basis spoke to SS about the allegations. JS confirmed that in the snapchats she told SS about the touching, watching ‘paranormal stuff’, and how the accused would pretend to be possessed.[69] JS said that she would be unable to provide the original messages because she lost the password on her original snapchat account and that she had tried logging in and recovering the old password.
[69] MFI P9 54. 14-18.
In re-examination, JS said that she wasn’t sure why she was scared to tell her mum on the camping trips that the accused was being inappropriate and that it was just a feeling that she had.[70] She said she was just saying yes to everything because she really didn’t know how to say no at the time.[71]
[70] MFI P9 58. 18-19.
[71] MFI P9 58. 37-38.
JS said that during the red-light game the accused put his hands on her knee and also close to her inner thigh.[72]
[72] MFI P9 59. 6-9.
SS gave evidence at the pre-trial hearing on 24 November 2022. At that time, she was 16 years old. She said that JS told her that she was raped by her uncle Robin. She thought that JS had used the words like ‘Andrew’s brother’ or she might have used his name, but she was not sure.[73]
[73] MFI P10 61. 34-36.
She said that JS had told her that ‘he had raped her and touched her. That was about it. She never went into full detail about the situation’.[74] She said she was pretty sure the conversation occurred over snapchat but was unclear whether she told her using a photo like the text option as well, or she just messaged her on snapchat’.[75] SS agreed that if it was a single photo snap, then it would have been a short message. SS confirmed that this snap was the first time she heard about the allegations from JS, and she was not ‘entirely sure’[76] whether she spoke to the JS about the allegations after the conversation on snapchat.
Evidence at trial
[74] MFI P10 62. 10-12.
[75] MFI P10 64. 4-5.
[76] MFI P10 65. 31.
Following an application by the prosecution, I granted permission for JS to be recalled at the commencement of trial.
JS confirmed that she had told BS Castle that the location where the accused had become possessed by demons was the Adelaide Gaol. JS said that earlier this year, that being 2023, she visited the Adelaide Gaol with BS Castle to look around at places that might have rejogged her memory.[77] JS said that her memory was jogged a ‘little bit’ and that she remembered a few of the rooms but could not elaborate further. She said that none of the beds at the Adelaide Gaol had looked familiar.
[77] TT 26. 21.
JS confirmed that she was shown photos that formed Exhibit P17 by BS Castle the week before trial. JS said that the first photo in the bundle, was a ‘gate she went through with the accused to get into the Goal’ and that no one else apart from Robin was with her on this occasion. The Photo marked 84 depicted the room in which she and the accused had stayed and where the accused was ‘possessed by a demon’ and told her to touch his special spot to bring him back to his normal self.[78] She said the quilts in the photos were not the same quilts she remembered. Rather, the photo marked 58 showed the pillowcases and quilts she recognised as ‘the bedsheets… that was on the bed at the time’.
[78] TT 31. 24-25.
JS said that she had thought that the incident happened at Adelaide Gaol ‘because that what she remembered the name as’.
During cross-examination JS confirmed that she had visited the Adelaide Goal earlier this year (2023) with the investigating officer but her that none of the rooms looked familiar. JS said that when she visited the Adelaide Gaol it felt like she had been there before but that it might have been with another person. [79] She said she was unsure whether she had been to the Adelaide Goal with the accused. JS said that the room depicted in the photo marked 84 reminded her of that room and that she could not be 100% sure, as she could not really remember that much.
[79] TT 37. 6.
JS denied that she was supposed to sleep in one of the cells or a cell like the room depicted in the photos in Exhibit P17. JS couldn’t remember whether she would have been scared to sleep in a cell if that was an option offered to her.
JS denied that the accused never became possessed and never inappropriately touched her or asked her to touch him.
SS
Police Interview on 11 November 2022
SS participated in an interview with police on 11 November 2021 when she was 14 years old.
SS said that she and JS don’t really see each other anymore. JS had told her that ‘she was raped by her uncle’.[80] SS said that this came up in conversation over Snapchat. She thought that the conversation may have happened a few months prior to the interview and that it may have occurred in October 2021.
[80] MFI P7 6, 80.
The words she recalled JS using during the conversation was ‘sexually assaulted, maybe or something like that’,[81] however she could not recall any more details. She thought that the compliant was in reference to JS’s uncle Robin, but that JS never elaborated on the time frame of the incidents.
[81] MFI P7 12. 186.
She couldn’t recall what the two spoke about after JS spoke about the allegations.
SS thought JS didn’t like her stepdad,[82] but she wasn’t sure about her uncle. SS thought that during the conversation, JS told her that she had reported the allegation to police.[83]
Pre-trial Hearing on 24 November 2022
[82] MFI P7 12. 202.
[83] MFI P7 17. 276.
At the time of the pre-trial hearing, SS was 16 years old and in year 10 at school. She confirmed that JS told her that she was raped by her uncle, Robin. She thought that JS had used the words like “Andrew’s brother” or she might have used his name, but she was not sure.
She said that JS had told her that “he had raped her and touched her. That was about it. She never went into full detail about the situation”.[84] She said she was pretty sure the conversation occurred over snapchat, but unclear whether she told her using “a photo like the text option as well, or she just messaged [her] on snapchat”.[85] SS agreed with Defence Counsel that if it was a single photo snap, then it would have been a short message. SS confirmed that this snap was the first time she heard about the allegations from JS, and she was not “entirely sure”[86] whether she spoke to the JS about the allegations after the conversation on snapchat.
[84] MFI P 7 – page 62, line 10-12.
[85] MFI P7 – page 64, line 4-5.
[86] MFI P10 – page 65, line 31.
Debra Pillar
Ms Pillar was the interim caretaker of the Gladstone Gaol accommodation during the charged period.
She became the interim caretaker when the Gaol closed in June 2022.[87] Although the Gaol is no longer open to the public, Ms Pillar confirmed that overnight accommodation at the gaol was available prior to June 2022, as well as day tours and ghost tours.
[87] TT 42. 31.
Ms Pillar said that the linen was changed between guests and would be replaced every couple of years. The quilt shown in the photograph marked 58 of exhibit P17 would not have been on the bed shown in the photograph marked 84 as the quilt cover had been purchased about six months before the gaol closed. There were other sets of linen that had red in them, but none that were all red.
Ms Pillar confirmed that recording of overnight stays prior to 2020 were kept in a book, which she didn’t think was still available and may have been thrown out whilst cleaning out the gaol.
During cross examination, Ms Pillar said that the photo marked 83 in Exhibit P17 was called the ‘birthing room’.[88] Mounted on the wall of this room, was information of all the births that occurred at the prison. Ms Pillar said she did not think there was anything else mounted to the wall in that room, other than the birthing information.
[88] TT 44.23.
Catherine Turner
Ms Turner was the accused’s ex-girlfriend. She was in a relationship with the accused on and off between 2011 and the beginning of 2017.[89]
[89] TT 55. 11.12.
Ms Turner said that she had always been interested in the subject of ghosts. She said that she and the accused became regulars with a company called Adelaide Haunted Horizons and also went on tours with a company called Ghost Crime Tours.[90]
[90] TT 55. 34-38.
Ms Turner said that during those tours, the accused claimed he was sensitive and on two occasions during a tour had acted in a manner where he was ‘like possessed or something, not himself’.[91] She explained that he would say that he could sense things. The first time the accused became ‘possessed’ they were at the Old Tailem Pioneer Village doing a tour and the accused started ranting. Once they exited, he came ‘back to’ and was dry retching. At the time the accused said he didn’t know what had happened.
[91] TT 55. 6.
The second occasion was in the same building. This time the accused had spoken to her prior to the tour and prior to becoming ‘possessed’. He had picked up a pair of gloves and spoke to Ms Turner about a connection he had, as if he could sense the previous owner. While they were on the tour in the same room, the accused lost it completely, started calling her a ‘slut’, had grabbed her neck[92]. When the accused exited the building, he started dry retching, and then came back to himself.
[92] TT 55. 34-55.
Ms Turner said that the accused told her that when he was ‘possessed’, he would never remember what had happened to him.
Ms Turner said the accused became possessed during a visit to cemeteries, and that on one occasion she remembered the accused ‘crouched down on the ground and he was calling ‘Dad, Dad, daddy, dad, dad’.[93]
[93] TT 58. 25-26.
Ms Turner denied that this possession behaviour ever crossed into her sex life with the accused.
Ms Turner agreed that two video recordings played in court showed herself and the accused in both the incidents she had described. [94]
[94] Exhibit P22.
Karen Thompson
Ms Thompson lived with the accused and her husband in Salisbury North for a few years until approximately 2018, early 2019. She first met the accused through Victory Church in approximately 2014 or 2015.
She and her husband moved into the house where the accused was already living. The accused lived with her for approximately two years.[95]
[95] TT 63. 5.
Ms Thompson said the accused would have his sons over from time to time, as well as JS, who on Ms Thompsons evidence appeared to be 10 or 11 years old when she first visited.
Ms Thompson said that when JS stayed overnight at their house, she would stay in Bedroom 3 and had come over every couple of weeks.[96] She described the relationship between the accused and JS as ‘close’ she said there was a bit of hugging from time to time. They were always talking. Sometimes when they were sitting down, one would be on the lounge and other would sit in-between the legs of the floor or they would be lounging on each other on the actual lounge itself.[97]
[96] TT 64. 31.
[97] TT 65. 19-22.
She also described over-hearing conversations between the accused JS, which included general life, about boys, relationships, schooling, what was going on at JS’s house and the birds and bees, which she said was referring to puberty, girls developing, periods, what to expect and sex.[98] She suggested that as JS got older, she became more interested in boys and the topic of protection was discussed.[99]
[98] TT 66.
[99] TT 67. 28-35.
In relation to the conversations about periods, Ms Thompson said that the accused would make sure JS got the sanitary pads and things she needed and made sure she was looking after herself, washing showering, and washing out her knickers if she had had an accident.
She said that during the time the accused lived at her home, some of the clothes JS was wearing were getting too small or inappropriate. She recalled the accused suggesting he would take JS shopping. She understood that the shopping also included shopping for bras and knickers. Ms Thompson said that JS would occasionally join the accused on camping trips. Ms Thompson said that she sometimes observed tension between JS and the accused [100]
[100] TT 68. 13-17.
In cross-examination, Ms Thompson said that she met the accused through a mutual friend who the accused was dating at the time. She was unsure when that relationship ended, however, thought it might have been a couple of months prior to her own wedding in 2017. She was aware that the accused dated someone called, Chantel McLeod.[101]
[101] TT 69. 1-2.
Ms Thompson said that the kitchen overlooked the family room. She confirmed that while her intention wasn’t to ‘snoop’ she just would overhear conversations. Ms Thompson thought that the conversations about the birds and the bees started when JS hit puberty. Sometimes she would hear the entire conversation between the accused and JS, sometimes only the middle. She thought the accused would initiate the conversations as JS was quite quiet.[102]
[102] TT 70.
Ms Thompson said the accused did JS’s laundry and that he would sometimes check to make sure JS was wearing underwear. He would also collect and wash her stained underwear.
Ms Thompson was asked to describe the observations she made of the accused and JS. She said that sometimes they would share a beanbag, that there was hugging, and that at times it was mutual. On other times it would have been if JS was upset the accused would give her a cuddle to reassure her.[103]
[103] TT 73. 34-37.
Ms Thompson did not see JS afraid of the accused apart from maybe when he raised his voice sometimes.[104]
[104] TT 74. 17.
Ms Thompson noticed that there were times JS would not wear a bra around the house or wore inappropriate clothes and would have a T-shirt that would gape so she could see straight down her top.
Stephen Thompson
Mr Thompson confirmed that he met the accused through his involvement with Victory church, in 2016.
JS would sometimes stay overnight in bedroom 3. She appeared to be 11 years old when she first started visiting. JS would come over approximately every second week, mainly on weekends and she would stay overnight.[105]
[105] TT 28. 25.
He said he was aware that some ‘things were unusual, just touchy’ and described JS ‘laying on top of Robin in the loungeroom in the beanbag, laying together’.[106] He said that they would be curled up on the beanbag together. He thought the topics of conversation between the accused and JS were unusual, in that they would talk about underwear and missing underwear and needing stuff like that.[107] He said there were a few occasions where the accused had spoken to him and Mrs Thompson about JS not wearing any underwear and her general wellbeing. When describing JS’s demeanour, he described her as quiet and standoffish.[108] When the topic of periods came up, Mr Thompson said he tried to ‘put that’ onto his wife.
[106] TT 79. 14-21.
[107] TT 79. 37-39.
[108] TT 80.14.
Mr Thompson said he was unsure whether he saw JS in the accused’s room, but thought it was ‘maybe a little amount of time’. He observed her ‘just going into, but not any conversations or anything like that’.[109]
[109] TT 81. 6-7.
He said that when the accused and JS were curled up on the lounge, JS was laying on the lounge, but on the bean bag they were more curled up, like spooning.[110]
[110] TT 81. 28-30.
Mr Thompson said that the accused told him JS was having issues at home. He said he and Mrs Thompson had tried to talk to JS, but that she wasn’t very open. He described JS appearing ‘lost’ but did not think she looked fearful of the accused. Mr Thomson denied ever seeing the accused be violent or raise his voice towards JS.
Brevet Sergeant Julie Castle
BS Julie Castle said that on 16 February 2021, she received a report in relation to the accused.
A video of the accused’s arrest and conversation with police in the back of a police car was tendered as Exhibit P21.
BS Castle described attending the Adelaide Gaol on 9 January 2023 and then again in February 2023 with JS, to see if JS could identify the place that she described in her interview.[111] BS Castle also visited Gladstone Gaol on 8 August 2023, to take photographs of potential scenes JS had described in her interview. She showed the photographs to JS one at a time and had her comment each.
[111] TT 93. 2-3.
Enquiries were made as to whether there were any records of bookings made at Gladstone Gaol. A visitors’ book from the interim caretaker was received and dated from 2000 - 2017.
In cross-examination BS Castle said that there were no snapchat messages obtained from JS’s phone and that she ‘would have them otherwise’.[112]
[112] TT 96. 37.
Accused’s Interview with Police on 31 July 2021
The accused spoke with police while being driven to the Elizabeth Police station. He said during the interview that he had known JS since she was 4 years old. She would stay over at his house intermittently from the age of around 11. The last time she had stayed would have been around October/November 2020. He said JS had not wanted to come around as much because she was getting interested in boys and he would not let her ‘live on her mobile phone’.
When asked to tell police about camping trips, the accused described the sleeping arrangements in some detail and said that there was only one time he and JS had to share a tent. He denied going to Adelaide Gaol with JS and volunteered staying at Burra in the Paxton Cottages.
After BS Castle provided specific details of the allegations JS had made, the accused said that he wanted to speak to his lawyer. He then said he was feeling queasy ‘because that girl has the worst personal hygiene’. He is seen to remove a beanie from his head and place it over his mouth and apparently wretch several times. He asked police to pull the vehicle over, which they did. The accused then told police ‘It’s just, it wasn’t actually what you said, it was just when you’re saying it I was just remembering the smell that that girl had cos she would constantly smell of urine and I used to make her have showers to try and wash some of the stench off, it, back then it used to make feel like this’. He returned the beanie to his head and police asked no further questions in relation to the matter.[113]
[113] MFI P21 30-31.
Prosecution address
The prosecutor submitted that I should find that JS was a careful witness, demonstrated in the evidence she gave regarding where the second ‘possession’ incident occurred.
In her police interview on 27 January 2021, JS said it was at the Adelaide Gaol. In the evidence she gave on 24 November 2022 she said she thought it was at the Adelaide Gaol but said she did not remember which one. When she had visited the Adelaide Gaol, she said that while she remembered a little bit about it, none of the beds looked familiar to her. She identified a bedroom at what we now know is the Gladstone Goal as the place where the incident happened. JS did not blindly tell BS Castle, when they went to the Adelaide Gaol, what she might have thought BS Castle wanted to hear. When taken to the Adelaide Gaol to see if it was familiar to her, JS did not try and strengthen her position. She was not to know that police would make further inquiries and find out that no overnight stays actually took place at the Adelaide gaol.
JS did not try and demonise the accused and when asked about camping trips said they would go every weekend and it was fun. The prosecutor noted that JS added that the accused went to church as well and observed that it was weird how people could go to church and still do ‘that stuff '. In the prosecutor’s submission this was a very compelling sentiment where JS was able to describe her thought processes at the time when she was a 12 or so-year-old girl who was trying to deal with a very challenging situation, where someone who she had enjoyed spending time with, who went to church, had taken advantage of her and sexually abused her.
At the time of the first interview JS was 14 years old and was clearly uncomfortable saying certain words and talking about sexual acts. She had not come forward to police to report the offending and said that she was too scared to do so. A stilted or reluctant disclosure is therefore what might be expected in those circumstances. Any suggestion of motive could, in the prosecutor’s submission, be dismissed given JS’s reluctant manner. Clearly, JS had no axe to grind against the accused.
The prosecutor submitted that I should take into account JS’s age, vulnerability and her background when assessing her evidence.
That JS did not give a significant amount of detail in relation to every single act of sexual abuse in terms of specific dates and times, might not be surprising when considering the period over which the offending was said to have occurred and that the abuse happened on more than one occasion. JS was however able to do is describe where the abuse would take place, the circumstances in which she was abused, what the accused did to her and when.
In relation to the accused causing her to touch his penis and the digital penetration, JS said this happened at his house, on his bed and while they were watching a TV show or a movie. The accused would put her hand on his penis, and if she pulled away, he would put it back, or he would tell her to touch his penis, and so she would touch it for a bit and then stop. She said the accused would put his fingers inside her vagina and play with her, and when she gave evidence on 24 November 2022, she said that when he put his fingers in her vagina it felt sore.
JS was also able to speak about what she was thinking at the time and how she would try to speak up but was too scared. She could move her body but could not think, talk and process it at the time. In the prosecutor’s submission, JS was recounting a genuine reaction to the sexual abuse.
The accused would hug her while both he and she were naked. JS said that if she wanted something earlier in the day, if they were out in public, the accused would ask for a hug, but if she stayed the night, he would make her do naked cuddles on the bed at night, while watching TV or paranormal things together. JS described the accused taking off her clothes, and then cuddling her naked and feeling his penis pressed against her. While she was unable to say what the accused looked like naked, she explained that she did not like looking at him when he was naked and tried her best to look away, which was a reaction that made sense given JS was a young, inexperienced teenager.
In the first interview, JS spoke about the accused giving her massages and gestured to her thighs. She expanded on this in her police interview on 13 February 2022 describing the accused getting ‘touchy’ around her inner thighs. He would be massaging her, inching closer, and she would try to close her legs to signal that she did not want to be touched there, consistent with the way she said she reacted to the accused touching her breasts.
the prosecutor submitted that if JS had fabricated that the accused sexually abused her while possessed, that would be a very elaborate and bizarre fabrication. Furthermore, how was JS to know that others would have come across the 'I'm possessed' story. Ms Turner’s evidence was that the accused appeared to become possessed from time to time, and that on two tours he became possessed, ranting, and throwing up afterwards, unable to remember what had happened. On the second occasion in the footage the accused appeared to be answering questions as if he was someone else, someone who died in the 1800s, had beaten his wife and had a favourite son. Ms Turner said that the accused was yelling abuse and, again, that he threw up afterwards, came to, acted like himself again and, had no recollection of what had happened.
JS gave a level of detail about the first ‘possession’. She said it was on vacation at the ‘mining place’, which on the prosecution case is the Paxton Cottages in Burra. She described the accused putting on a voice, telling her that he would get possessed soon, and giving her instructions.
JS was shown photos of Paxton Cottage and could say which bed it had happened in and where she was laying on the bed.
As to her evidence that the incident happened in September 2020, JS was simply mistaken as the booking reveals that it was in July 2019.
JS may also have been mistaken as to the bedding at the Gladstone Gaol where the offending happened. This was however of no moment because it was put to JS in cross-examination that this was the room where she and the accused stayed and she agreed with that.
The prosecution relies on evidence of the uncharged acts for a non-propensity purpose pursuant to s 34P(2)(a) of the Evidence Act 1929 involving hugging, particularly the hugs for payment, massaging, including naked massages, and the accused being very touchy and calling JS his girlfriend on one occasion.
The evidence of the uncharged acts is relevant to provide the complete picture of the relationship and the full extent of the sexualised nature of their relationship. The evidence provides the context in which the particularised unlawful sexual acts occurred and on the prosecution case the accused was normalising physical intimacy and sexual behaviour with JS so that she was less likely to respond negatively to his sexual conduct, and less likely to disclose his offending.
What Stephen and Karen Thompson observed of the interactions between the accused, a 40 something year old man and JS, a twelve-year-old girl, were very unusual unless they involved grooming JS.
There was opportunity for the accused to commit the offences in that the offending occurred in private places, in the accused's bedroom, inside the tent while they were camping, or during the trips away to Burra and Gladstone.
JS’s evidence was that she told SS that the accused was very touchy, and touched her while they were watching paranormal ‘stuff’. She said she told SS about the accused pretending to be possessed and that SS urged her to go to police, but she was scared. SS recalled that JS told her that her uncle raped her and touched her inappropriately but did not go into full detail because she did not want to ask questions and upset JS. The prosecutor submitted that while there are differences in the level of detail said to have been provided, the overarching nature of the two accounts is similar. In any event, they were consistent in terms of revealing JS’s mindset at the time, and her fear at the thought of coming forward with the allegations.
The prosecutor submitted that it would be quite an elaborate, burdensome and long running scheme for JS to have just made up her allegations for the reasons alluded to in cross-examination.
In conclusion, the prosecutor submitted that JS’s evidence was compelling. When she spoke about the offending, she did not embellish, and was uncomfortable going through the process. She made appropriate concessions when she could not recall.
On the central aspects of the particularised unlawful sexual acts, JS remained clear. She gave reliable evidence about how the accused touched her breasts, caused her to touch his penis, how he inserted his fingers into her vagina, touched her thighs and hugged her while they were both naked. She gave specific evidence about the two trips where the accused became possessed, on the trips to Burra and the gaol.
Defence Counsel Address
Defence counsel submitted that while there may have been opportunities for the accused to have offended as alleged, that did not of course mean that any offence was committed.
JS’s motive in alleging the accused had offended against her related to her ‘wanting out’ of living with her mother and her stepfather and to be given the opportunity to live with her father. While JS had not made the allegations initially, when the opportunity presented itself, she made up allegations to secure the permanency of her living arrangements with her father. There were arguments and problems at home which caused JS to be confused and upset. JS’s mother thought she was a liar. While JS was not asked about wanting to go and live with her father, it was, defence counsel submitted, an inference that could be drawn from her answers in cross-examination when she agreed she was now much happier.
As a result of the difficulties she was experiencing with life at home, JS took opportunities to get away and go to her grandparents, friends' houses, and to the accused’s house and on trips with him. It was clear from her evidence that JS was given a choice in whether she went with the accused.
Intervention by the Department of Child Protection resulted in the JS beginning to live with her biological father. BS Castle's evidence was that that the complaint came about following allegations made by a Chantel McLeod, who was not called as a witness. Defence counsel submitted that an inference could be drawn as to what evidence she could have provided but as per the agreed fact, JS began living with her father from 26 February 2021 and was said to be much happier.
As to whether it might be thought that if JS began living with her father from months earlier, why she would bother making a complaint, defence counsel argued that in JS’s mind at the time of the initial complaint, she did not know or think that her living situation with her father was permanent. While defence counsel accepted JS had not been asked about that, he suggested JS thought, as at May 2021, that at any moment she could have to go back to living with her mother and stepfather, as was made plain in May 2021 at the first interview with police. Defence counsel suggested that JS’s use of words was very careful when she said, 'I'm now with my dad and it's all stopped at the moment, hopefully, and I don't really want to go back home, which I don't - hopefully I don't go back home'.
Defence counsel said further evidence of JS’s state of mind in May 2021 can be seen in her evidence in November 2022, when she was being cross-examined about when she made her initial complaint to SS. Her evidence was that 'I was just texting her about it and I was at my dad's at the time'. When cross-examined further, her evidence was 'As soon as, like, I got my phone and when I was with my dad, or not living with my dad, when I was staying at my dad's place'.
Defence counsel submitted that the distinction JS made between staying with her dad and living with her dad is no accident as in her mind, as at November 2022, she merely thought she was staying with her father. In her mind she did not know that it was a certain thing. Defence counsel submitted that JS had limited options as to whom she could point the finger at and the accused was in the perfect position to have these allegations made against him, given his exposure to her.
Defence counsel identified inconsistencies in JS’s evidence. With respect to JS’s complaint to SS, JS said she had told SS about what the accused had been doing as soon as she had her phone and when asked when that was, she said it was about 2019. In the agreed facts, JS’s father, obtained a phone for JS around one or two months after she moved in with him, therefore around March or April. The service plan for that mobile phone, began on 1 May 2021. Defence counsel submitted that SS provides support for the timeline in her police interview, when she said JS made the complaint to her 'a few months ago'. JS said she told SS over a Snapchat text, that the accused had been very touchy and also about the accused’s ‘possessions’.
JS was unable to remember the exact words of the initial complaint and defence counsel submitted that really the extent of the wording that JS used, was that the accused was very touchy. SS distinctly remembered the word 'rape' was used over Snapchat, inconsistent with JS’s evidence. While one of the acts alleged from a legal perspective, is considered rape, children would, not know that digital penetration is considered as that offence.
Both JS and SS had said they had kept the messages and yet nothing was obtained by SAPOL. JS’s evidence that she had tried to recover the messages but had lost her password, speaks against her credibility in that, defence counsel submitted, it is common knowledge that a password can be reset. When pressed, JS said she tried and eventually had to make a new account. Defence counsel submitted that the accused was under a forensic disadvantage in relation to this evidence.
As to the prosecution trying to bolster the case by using the accused’s ‘possession’ as a unique aspect of JS’s allegations, Ms Turner’s evidence was that ‘possessions’ had never made their way into their on and off sexual relationship from 2011 to the beginning of 2017. Accordingly, there was no apparent ‘uniqueness’ as had been suggested.
While defence accepted that there was an overnight stay at the Gladstone Gaol, JS had been wrong about the Adelaide Gaol. Defence counsel argued that this was not a minor error on JS’s part. She had been taken by police to the Adelaide Gaol and while initially her evidence was that she did not recognise anything there, said then that it jogged her memory that she might have been there with someone else, who she could not recall.
JS said that she had stayed with the accused in the ‘birthing room’, in Gladstone Gaol. She said the pillowcases and quilts in photo 58 were the ones in the room she had stayed in at the time. Ms Pillar's evidence was that the bed linen JS had identified was not obtained until six months prior to closing, well after the time that JS said they were there. Furthermore, Ms Pillar's evidence was that the cot seen in the photographs had been there for about four to five years, whereas the complainant had no recollection of it. JS also described the photo of a lady that was hanging above the bed. It did not appear in the photographs and Ms Pillar's evidence was that other than an information sheet there was nothing else that she could remember ever being mounted on the walls.
Defence counsel submitted that JS’s evidence became vague and that she had resorted to answering, 'I don't remember' or 'I don't know'.
JS said the accused would hug her all the time and that sometimes it would make her uncomfortable as opposed to Ms Thompson's evidence of what she witnessed. Ms Thompson said one-sided hugs were in the context of JS being upset, where the accused would give her a cuddle to reassure her.
The first incident where the accused allegedly offended against JS was the first time they went camping together, where her mother, stepfather and younger sister were also present. She was in a tent with the accused sharing a blow-up mattress because there was not room in her parents' tent. This, Defence counsel argued was not the accused’s doing, but rather was at the direction of JS’s mother. While JS said she was terrified of what the accused might do, she continued to go camping with him and was frequently in his company. Her mother had apparently put a stop to the time they were together at least for a time when she observed the accused being too ‘huggy’ and it would be assumed she would have acted had she been aware of her daughter’s fears.
When Ms and Mr Thompson observed JS and the accused, they would be snuggling into each other or curled into each other and had not observed any fear by JS, other than when the accused raised his voice whilst reprimanding her.
On her own evidence, JS admitted that she lied a lot when she was younger.
Defence counsel submitted that JS was asking the court to believe that given the option of being at home and facing having arguments with her mother and/or stepfather or being with the accused and in fear while being around him and what he might do, she opted for the latter over the former. In contrast with JS’s evidence that she was fearful and scared of even of being in a room with the accused even when others were around.
The accused is into the ‘paranormal’ and Ms Turner said that she and the accused went on many tours. JS said she was also into the paranormal and enjoyed that sort of content. Defence counsel submitted that the evidence showed that the accused had a history of being in normal, adult relationships.
As to the accused speaking with the complainant about periods and underwear, Ms Thompson's evidence was that she sometimes came across JS’s stained underwear around the house. Ms Thompson said that she overheard conversations between the accused and JS about, what she described as the ‘birds and the bees’ and boys but also general life, relationships, schooling and what was going on at JS’s home. It was apparent that the accused was not trying to hide these conversations. He came to the Thompsons for guidance and Mr Thompson's evidence was that he put it to his wife because it was more her forté. Ms Thompson said she overheard the conversation between the accused and JS about periods. The conversations were not sinister or hidden. The accused was just making sure JS had what she needed and was looking after herself more.
With respect to the accused’s record of interview, the accused was forthcoming about his electronics and, after seizing them and analysing them, the best the prosecution could produce in relation to JS, were ‘happy snaps’ from camping trips.
The accused was perhaps too helpful in his own detriment, but was, in defence counsel’s submission, being honest because he had nothing to hide. His retching and vomiting, was, defence counsel submitted, a natural, visceral response. It was not something that could have been rehearsed and was a genuine response of someone who had no idea what was coming and who was disgusted by the idea or the suggestions of the allegations.
Analysis
The prosecution case relies on my acceptance beyond reasonable doubt of the evidence JS gave regarding the sexual acts she has alleged against the accused.
There were plainly differences between the evidence JS and SS gave about their conversations and which have caused me to carefully scrutinise the complaint evidence, and to reflect on whether I can accept JS’s evidence on the central issues of the accused’s alleged offending beyond reasonable doubt. In assessing the complaint evidence, I have not lost sight of the significant forensic disadvantage faced by the accused in responding to the prosecution case given the apparent failure by police to secure the Snapchat messages said to have passed between JS and SS and/or the alleged destruction of those messages.
In her first police interview in May 2021, JS said that she had told SS that the accused had been very ‘touchy’. She said that SS told her to go to police but that she told SS she was too scared. JS said she thought she had a few, but not a lot of conversations with SS about what the accused had done.
In SS’s police interview on 11 November 2021, SS said that she and JS would talk to each other on Snapchat all the time. JS told her that she had been raped by her uncle, but she had not gone into full detail. JS told her ‘she was raped’ and ‘he touched her and stuff’. SS said that JS didn’t really go into depth about it and SS didn’t want to upset JS in any way. Later when asked what words JS had used, SS said that she was pretty sure JS used the words ‘sexually assaulted maybe’. She said she knew JS used the word ‘rape’ in relation to her uncle. SS said that she and JS spoke about the matter a few months before the interview, in September or October. SS said that she didn’t think she spoke with JS about it any other time and thought she had kept the relevant chat. SS added towards the end of the interview that she was ‘pretty sure’ JS said that she had reported it to police and told her that police would either come to her school or house to talk to her.
In her second police interview on 13 February 2022, JS said that she told SS that the accused would always touch her at night when watching paranormal stuff, and how he would make her touch him and was pretending to be possessed.
It was not until 24 November 2022, that JS was asked when it was that she had communicated with SS about the abuse. JS said that she told SS about what the accused had been doing to her as soon as she had her phone, in about 2019 when she was in year 7. She was at her Dad’s at the time. Earlier in her evidence she had said that she moved in with her father in around March 2020. JS was unable to remember what words she had used when speaking to SS about the accused. In cross-examination, JS said that she told SS about what had happened as follows:
So as soon as I got my phone when I was living with my Dad, or not living with my Dad, when I was staying at my Dad’s place.
While defence counsel emphasised the inconsistency between JS’s evidence about her mobile phone and the agreed fact that her father had given her a mobile phone in 2021, with the contract dated 1 May 2021, I note that in the accused’s record of interview, he spoke of having to remove JS’s phone from her at a time when she was in his care, clearly prior to May 2021 and giving rise to the possibility that JS had a phone earlier than that given to her by her father. In any event, the agreed facts on this issue cannot conclusively assist in assessing the timeframe of the communications between JS and SS.
In her evidence on 24 November 2022, SS said she recalled telling police that JS had told her that the accused raped her and touched her. The conversation was over Snapchat and she no longer had the particular chat.’
In cross-examination, SS said that JS told her either by way of a photo with text or via a message over Snapchat. She said she was ‘not entirely’ sure whether she spoke with JS either before or after the snapchat.
When asked whether she thought it might have been ‘just that one time’ she said ‘Yeah, I’m pretty sure’.
I have found both JS and SS had rather imprecise recollections of their communication. Certainly, SS seemed reluctant to commit to her answers either to police or in court. JS said that she spoke with SS on the topic on more than one occasion while SS remained uncertain of this.
JS said in her first police interview that she told SS the accused was ‘touchy’.
SS told police in November 2021 that the relevant snapchat communication had been a few months prior and by that time, JS had spoken to police about her disclosure to SS. JS said she had spoken to SS in 2019, and SS’s evidence was that she was ‘pretty sure’ JS had told her that she had reported the matter to police and that they would be in contact with her, information which I find unlikely to have been imparted by JS before her own interview in May 2021. I find that it is likely that there was more than one communication between JS and SS on the topic of the accused’s conduct in that they were in contact regularly. I am satisfied that SS was simply confused as to what was said by JS and when, with the first disclosure at a time when JS was staying with her father in around March 2020, as opposed to when she was living more permanently with him after February 2021, and that there was subsequently further and more detailed disclosure by JS, consistent with SS’s recollection that JS informed her that police would be speaking with her.
Complaint evidence is not admitted as evidence of the truth of what JS has alleged and there may be varied reasons why an alleged victim of a sexual offence has made a complaint to a particular person at a particular time. Rather, complaint evidence is to inform how the allegations first came to light and as evidence of the degree of consistency of JS’s conduct. The inconsistencies as to what was communicated to SS and when, have not caused me concern as regards the credibility and reliability of JS’s evidence overall in that the nature of the two accounts was similar. JS had made allegations to her friend against the accused of a sexual nature. If SS’s memory of JS’s use of the word ‘rape’ was accurate, JS, at around 14 years of age, may well have been familiar with what acts that might encompass.
While JS presented as a somewhat unsophisticated and vulnerable teenager, particularly when she was interviewed by police, and who appeared on occasion to have difficulty maintaining focus on what she had been asked, there was no hint of exaggeration or deliberate reconstruction of her memories. That she had not come forward herself initially to report the matter to police did in my view provide context to her presentation as someone who was uncomfortable recounting what she experienced. I accept that many young teenagers would have those difficulties and JS impressed me as someone who was not overly invested in the complaints against the accused and was simply telling it like it was. She did not focus negatively on the accused, and as was submitted by the prosecution, spoke of the accused as someone who had initially at least, provided her with opportunities to do fun things away from her unhappy home life.
Defence counsel made much of JS’s decision to continue contact with the accused despite his offending and her fear of him, however her choices were being made against a background of initially happy experiences with the accused, an unhappy homelife where there appears to have been significant conflict, and where she felt unsupported by her mother. Clearly her home life caused her upset and she was happy and relieved to be living with her father when she spoke to police. She agreed in cross-examination that it had been hurtful when her mother organised things to get her out of the way. While I accept that JS appeared to remain concerned at the permanency of the arrangement with her father when she said that hopefully she did not have to return home, I did not discern any connection between her concerns and her allegations against the accused. Having rejected a motive on JS’s part to lie does not of course lead to a conclusion that JS has told the truth.
The prosecution relied on evidence of uncharged acts for a non-propensity purpose pursuant to s 34P(2)(a) of the Evidence Act 1929, involving hugging, particularly the hugs for payment, massaging, including naked massages, and the accused being very ‘touchy’ and calling JS his girlfriend.
The nature of the interaction between the accused and JS as observed by Mr and Ms Thompson can properly be thought of as unusual and in some respects concerning. Clearly JS was a young teenager who had been left without guidance or support. Discussions with her about periods, selfcare and relationships might have been undertaken by the accused in a genuine attempt to give JS the knowledge and support that she lacked, particularly given that the discussions were according to Mr and Ms Thompson, undertaken within their hearing. However, when considered against a background of the accused having been observed to lay with JS and for them to be ‘spooning’, I find that the evidence demonstrates the accused’s sexual interest in JS and of his grooming behaviour towards her. Clearly the accused was establishing a relationship with JS where she could place trust in the accused as regards sexual matters and behaviours.
The evidence of the uncharged acts is relevant to provide the complete picture of the relationship between the accused and JS and the full extent of the sexualised nature of the relationship. The evidence provides the context in which the particularised unlawful sexual acts occurred and on the prosecution case the accused was normalising physical intimacy and sexual behaviour with JS so that she was less likely to respond negatively to his sexual conduct, and less likely to disclose his offending. The evidence was led without objection. While I have found that I am satisfied of the truth of JS’s evidence with regard to the uncharged acts, I remind myself that I must not reason that the accused is a person of bad character and therefore the type of person who would offend as he has been charged.
I found JS’s evidence regarding the two occasions where the accused became ‘possessed’ to be compelling and the mistakes she made regarding the particular gaol where one event had taken place did not raise concern as regards my assessment of her evidence. Clearly, she had not been convinced that the location was the Adelaide Gaol when she visited there with police otherwise, she would more likely have confirmed that as the location. Nothing in my view turns on the bedding or contents of the room at the Gladstone gaol given that in any event there is no dispute as to the room in which the overnight stay occurred. I am satisfied that the accused and JS stayed together in the Paxton Cottages in July 2019 and at the Gladstone Gaol on an unknown date. That ‘possession’ had not been a feature of the sexual relationship between the accused and Ms Turner was in my view not to the point. The relevance of the evidence was the consistency between of JS’s description of the accused’s behaviour while ‘possessed’ and Ms Turner’s account of the occasions when she had experienced such behaviour by the accused, which was furthermore consistent with the footage of those events while on a ‘ghost tour’. JS gave a convincing and, in my view, genuine account of the accused’s behaviour in telling her he would get possessed, putting on a voice and directing her to behave in a certain way and then ‘waking up’ and asking what had happened.
As I have said, I have given considerable thought to whether I can accept the evidence JS gave on the substantive issues despite the possibility that JS is confused or mistaken as to what she told SS and when. In the end, I have found that it is likely that JS did tell SS that the accused was ‘touchy’, at an earlier time, consistent with what JS had told her mother and with what her mother had apparently observed, which had then led to a stop on JS seeing the accused, at least for a time.[114] I am satisfied that even if JS mistakenly thought she had given more detail to SS at an earlier time, that nonetheless, she has given a reliable account of the core events that she has alleged. As I have said, I have found JS’s evidence compelling. My assessment of the accused’s presentation during his interview with police was far from favourable. My overwhelming impression of the accused from the record of interview was that he is an immature man prone to presenting an affable, guileless affect. His response to the allegations in retching, while placing his beanie over his mouth and then returning it to his head and attributing his reaction to JS’s poor personal hygiene, was as comical and unimpressive as his behaviour when he became ‘possessed’ in Ms Turner’s company. When speaking with police, the accused denied he had offended against JS and I bear in mind that the accused was not required to answer questions; his answers are not sworn evidence tested by cross-examination and that in participating in the interview, the accused took on no onus of proof.
[114] The evidence does not allow me to conclude with any certainty the timeframe for when JS’s visits with the accused were put on hold, why or by whom.
My assessment of the accused in the interview and on the video footage on Exhibit P22, does not of course mean that the prosecution has proven its case, and I must return to the question of whether I can be satisfied beyond reasonable doubt of JS’s evidence concerning the unlawful sexual acts she described.
Having carefully scrutinised JS’s evidence together with the evidence of the other prosecution witnesses and the accused’s denials, I am satisfied that JS was a truthful and reliable witness and that the events she alleged took place in the manner she described. I reject that there is a reasonable possibility that the accused did not commit the charged offence.
I am satisfied beyond reasonable doubt that the accused committed acts of indecent assault, unlawful sexual intercourse and procured acts of gross indecency, multiple times against JS between January 2019 and January 2021, which I find amounts to maintaining an unlawful sexual relationship. I find the accused guilty.
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