R v T, DJ
[2019] SADC 51
•1 May 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v T, DJ
Criminal Trial by Judge Alone
[2019] SADC 51
Judgment of His Honour Judge Barrett
1 May 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
The accused is charged with two counts of Maintaining an Unlawful Sexual Relationship with a child, namely his two daughters (counts 1 and 2). He is also charged with assaulting his two daughters and two of his three sons (counts 3, 4, 5 and 9). The accused denied all offending in his interview with police.
Held: The accused is guilty of all charges.
Evidence Act 1929 (SA) ss 34M & 34P, referred to.
Police v G, DM [2016] SASC 39.; R v Kinloch (1996) 187 LSJS 124 at [130]; R v Jones [2018] SASCFC 80; Hughes v The Queen [2017] HCA 20; McPhillamy v The Queen [2018] HCA 52, considered.
R v T, DJ
[2019] SADC 51
The accused is charged with nine offences against four of his five children. Counts 1 and 2 charge him with Maintaining an Unlawful Sexual Relationship with his two daughters who are the eldest and the youngest of the children. Count 1 relates to the eldest, PT, and count 2 relates to LS, the youngest.[1] The accused is further charged with Common Assault in relation to the eldest (count 3) and an Aggravated Assault relating to the youngest (count 9). A nolle prosequi was entered in respect of count 7, a charge of Aggravated Assault against the eldest child and I found no case to answer in respect of count 8, a charge of Aggravated Assault against the youngest.
[1] I will use the initials denoting the first name commonly used by each of the siblings. LS has changed her surname.
The remaining three counts relate to assaults alleged in respect of two of the three sons. Count 4 is an allegation of Common Assault against AT. A nolle prosequi was entered in respect of count 6 which is also an allegation of Common Assault against AT. The prosecution acknowledges that the evidence suggests the two counts relate to the same event. AT is the second eldest child and the eldest boy. He did not give evidence at the trial. He declined to give a statement to police.[2]
[2] Detective Brevet Sergeant Dickenson, T428.
The remaining count, count 5, alleges Common Assault against JT, the youngest of the three sons. JT gave a statement to police but declined to sign it and give evidence.
The middle child, and the middle son, JYT, gave evidence which bears on several of the charges involving the other siblings. While he said the accused was harsh in his treatment of him he makes no allegation which was the subject of a charge against the accused.
The charges therefore relate to sexual offending and assaults against each of the daughters, PT and LS, and assaults against two of the three sons.
I set out the charges, including those which are not proceeding:-
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
[T, DJ] between the 24th day of July 1998 and the 23rd day of July 2007 at Happy Valley and Crystal Brook, being in a position of authority in relation to [PT] a person under the age of 18 years, maintained an unlawful sexual relationship with [PT] by engaging in two or more unlawful sexual acts with or towards [PT], namely:
(a) touching her breasts on more than one occasion;
(b) touching her vagina between the labia majora on more than one occasion;
(c) rubbing his penis between her labia majora on more than one occasion; and
(d) pressing his penis against her body on more than one occasion.
Second Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child. (Ibid).
Particulars of Offence
[T, DJ] between the 21st day of July 2003 and the 20th day of July 2005 at Crystal Brook, being in a position of authority in relation to [LS] a person under the age of 18 years, maintained an unlawful sexual relationship with [LS] by engaging in two or more unlawful sexual acts with or towards [LS], namely:
(a) sucking her nipples on more than one occasion;
(b) touching her breasts on more than one occasion; and
(c) touching her vagina on more than one occasion.
Third Count
Statement of Offence
Common Assault. (Section 39 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[T, DJ] between the 24th day of July 2002 and the 23rd day of July 2004 at Crystal Brook, assaulted a family member [PT].
Fourth count
Statement of Offence
Common Assault. (Ibid).
Particulars of Offence
[T, DJ] between the 18th day of September 2002 and the 17th day of September 2003 at Crystal Brook, assaulted a family member [AT].
Fifth Count
Statement of Offence
Common Assault. (Ibid).
Particulars of Offence
[T, DJ] between the 1st day of January 2003 and the 31st day of December 2003 at Crystal Brook, assaulted a family member [JT].
Sixth Count (Nolle prosequi)
Statement of Offence
Common Assault. (Ibid).
Particulars of Offence
[T, DJ] between the 21st day of July 2002 and the 23rd day of July 2004 at Crystal Brook, assaulted a family member [AT].
Seventh Count (Nolle prosequi)
Statement of Offence
Aggravated Assault. (Section. 20(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[T, DJ] between the 21st day of July 2008 and the 2nd day of July 2009 at Crystal Brook, assaulted [PT].
It is further alleged that [T, DJ] committed the offence knowing that [PT] was a child of whom he had custody as a parent or guardian.
Eighth Count (No case to answer)
Statement of Offence
Aggravated Assault. (Ibid).
Particulars of Offence
[T, DJ] between the 21st day of July 2007 and the 20th day of July 2015 at Crystal Brook, assaulted a family member [LS].
It is further alleged that [T, DJ] committed the offence knowing that [LS] was a child of whom he had custody as a parent or guardian.
Ninth Count
Statement of Offence
Aggravated Assault. (Ibid).
Particulars of Offence
[T, DJ] between the 21st day of July 2010 and the 20th day of July 2012 at Crystal Brook, assaulted a family member [LS].
It is further alleged that [T, DJ] committed the offence knowing that [LS] was a child of whom he had custody as a parent or guardian.
Ingredients of charges
Unlawful sexual relationship with a child – counts 1 & 2
The prosecution must prove beyond reasonable doubt four ingredients as follows:-
1The accused was an adult.
2With exceptions set out below, each complainant was under the age of 18 years at the relevant times. This is so because at the relevant time the complainant was, and the accused knew she was, a child of his and he was in a position of authority over her (s 50(12) and (13) of the Criminal Consolidation Act 1935 (SA)).
3The accused engaged in the unlawful sexual relationship by committing two or more unlawful acts against the complainant. The unlawful sexual act must itself constitute a sexual offence. Each of the particularised sexual acts set out in counts 1 and 2 amount in law to an indecent assault. That indecent assault takes the aggravated form because each complainant was a child (until PT turned 18) and it also takes the aggravated form wherever the complainant is under 12.
The ingredients or indecent assault are:-
i)There must be an assault. A touching would suffice.
ii)The assault must be deliberate as opposed to accidental.
iii)The assault must be unlawful. No lawful excuse is suggested.
iv)The assault must be indecent according to contemporary community standards.
v)The assault must be committed by the accused with a sexual purpose.
vi)The complainant must be under the age of 18 years.
The indecent assault will take the aggravated form wherever it is proved that the complainant was, to the knowledge of the accused, his child and under his authority or where the child is under the age of 12.
4The accused maintained the unlawful sexual relationship. “Maintained” carries its ordinary meaning, that is “carried on”, “kept up” or “continued.” It must be proved that there was an ongoing relationship of a sexual nature between the accused and the individual complainant. There must be some continuity of conduct.
Consent is no defence to this charge. A child under 17 is incapable in law of consenting to sexual activity. The child of the accused in incapable in law of consenting to sexual activity when aged under 18 years.
Common assault – counts 3, 4 & 5
Common assault was proscribed by s 39 of the Criminal Consolidation Act 1935 (SA) before the new regime of assault offences was created by s 20 in 2005. Counts 3, 4 and 5 are all alleged to have occurred before 2005. The offence was then one at common law. In respect of common assault the prosecution must prove beyond reasonable doubt:-
1There was an application of force by the accused to the complainant.
2The application of force was deliberate, that is, not unintended or accidental.
3The force was applied without the complainant’s consent although that may not apply to a child.
4The accused was acted unlawfully. Reasonable chastisement of a child is lawful.
Aggravated assault – count 9
The offence of aggravated assault was created by s 20(3) of the Criminal Law Consolidation Act 1935 (SA) in relation to offences committed after 2005. Count 5 is alleged to have occurred between the 21st of July 2010 and the 20th of July 2012 when LS was aged 14. The prosecution must prove beyond reasonable doubt four ingredients and the aggravating factor as follows:-
1There was an application of force by the accused to the complainant.
2The application of force was deliberate, that is, not unintended or accidental.
3The force was applied without the complainant’s consent although that may not apply to a child.
4The accused acted unlawfully. Reasonable chastisement of a child is lawful.
In addition, the prosecution must prove beyond reasonable doubt the complainant was, to the knowledge of the accused, his child and he was in a position of authority over her.
Course of the trial
The trial proceeded without a jury following a late application on the 21st of February 2019 for a judge alone trial. The prosecution called as witnesses three of the accused’s children. In addition, the prosecution called a former neighbour of the family, Ms Lane, and a TAFE lecturer, Ms Pammenter. A statement of a TAFE student, Ms Scafidi, was read into evidence by consent. The officer in charge of the investigation, Detective Brevet Sergeant Jessica Dickenson was called. An affidavit of Ms Lisa Templer was tendered by consent (Exhibit P22). She is a former school friend of the elder daughter. The prosecution tendered the video recorded interview the accused had with the police at the time of his arrest on the 18th of January 2018 (Exhibit P23, Transcript MFIP23A).
The accused exercised his right not to give evidence. I draw no inference against him by reason of him exercising that right. The defence called both the accused’s parents LH and MH. There are agreed facts (Exhibits P1 and P24) and various exhibits were tendered.
Background
The accused is now aged in his early 50s. He and his wife lived in the metropolitan area of Adelaide before their separation in about 1999. It appears that there may have been a period during which the children lived with one or other parent in Adelaide after the separation but in about 2001 the accused and the children moved to live in a house the accused owned in a country town. The ages of the children at the time of the separation ranged from 10 to three and at the time they moved to the country town their ages ranged from 12 to five. For reasons which I will explain the evidence of dates is imprecise. However evidence from two of the children, which was not challenged, suggests that the elder daughter began high school and the younger began primary school at the beginning of the year they moved to the country town.
The home moves by the family assume some importance in understanding the evidence but there remains a degree of imprecision about the periods during which the family lived at each place. In the interests of anonymity I will refer to the accommodations in the following terms:
·The family moved from Adelaide to the country town in about 2001. They may have stayed there for about a year.
·Next, they lived in a shearing shed on a property outside the country town. The accused purchased part of the farming property, including the shed, from his father who retained a portion of the farm. The family may have lived in the shearing shed for up to a year although there is some uncertainty about that. The shearing shed was found by the local authorities to be unfit for habitation and the family moved temporarily.
·The family moved temporarily to a rented house some 20 or 30km from the shearing shed. The period spent at this house is quite imprecise. It may have been of the order of a year.
·Finally, the family returned to the farm where the shearing shed was located. There they moved into a transportable house. The accused lived there at the time of his arrest on the 18th of January 2018. All of the children had left home by then.
The children are now aged from 22 to 29 years.
The offending is alleged to have taken place over approximately 17 years from 1998, just before the parents’ separation, to about 2017 when the younger daughter left home aged about 15. It is unclear who, if any, of the children remained living with the accused when the younger daughter left home. Certainly the elder daughter, PT, and the middle son, JYT, had left home.
Part of the reason for imprecision in the evidence about dates is explained, in my view, by evidence which I accept about the way in which the children were brought up. The family did not celebrate birthdays, or at least, the children’s birthdays were not celebrated. The accused’s mother refers to there being a celebration of the accused’s 50th birthday, but for reasons that none of the witnesses could explain, the children’s birthdays were not celebrated. The accused was a religious man who adhered to strict religious observances but none of the children suggested the accused had ever explained to them any religious reason why birthdays were not celebrated.
Further, the children were largely schooled at home by the accused. They appear to have attended public schools until sometime after they moved to the country town. That is how it is relatively clear that they moved to the country town in 2001. After that their schooling took place at home. They had the assistance of distance education tuition but I conclude that part of the difficulty witnesses had in being precise about where they lived at any given time is that the markers of schools attended, school years and terms were not obvious to them. I draw no inference against the accused for the circumstances of birthdays not being celebrated and home schooling, but on the other hand I do not draw inferences against the witnesses because of their imprecision and inconsistencies about dates.
I turn to what I find was a distinctive part of the children’s upbringing. I find that the accused was strict about religious observances. He gathered the children to prayer three times a day. There were numerous and lengthy bible readings by the accused, particularly on Saturdays. There were strict rules about what could not be done on the Sabbath. Incandescent lights could not be turned on. It was not permitted to leave the home property. Social contacts in the community were few. Discipline was enforced by corporal punishment. I will have to bear in mind the limits of reasonable chastisement[3] when considering the allegations of violence. The girls had to dress modestly. They had to wear head coverings. There were strict rules governing the girls’ behaviour when they were menstruating. PT said that while religious observances were strict before the parents’ separated, they became stricter when the children were in the sole care of the father.[4] The younger daughter, LS, gave similar evidence.[5]
[3] Police v G, DM [2016] SASC 39.
[4] T133.
[5] T186.
I make it plain that I do not draw an adverse inference against the accused by reason of what I find to be the religious strictures the accused required his children to observe. However I do conclude that those strictures go some way to explain criticisms the defence makes about aspects of the children’s evidence. I will turn to those criticisms in due course but defence counsel submitted that the credibility of the two daughters is damaged by their contacting their father after they had each left home. It was suggested that they would be unlikely to do that if the accused had been sexually and physically abusive to them in the way that they say he was. I find that the accused’s control of the children during their upbringing weakens the force of those criticisms.
That control may also go some way to explain why none of them complained to others about the accused’s behaviour.
There is one other aspect of the children’s upbringing that is relevant. I find that at times the accused abused alcohol. The middle son, JYT, gave the most compelling and detailed evidence on that topic. He said it became his task to help manufacture the home brew beer which the accused consumed. The former neighbour, Ms Lane, gave evidence that, while she had never seen the accused drink alcohol,[6] she was shocked to see ‘dozens and dozens of beer bottles’ in his bedroom when she was once shown around the house by one of the children. Hers was one of the few families with whom the accused did occasionally socialise. In cross-examination she said she was ‘overwhelmed’ at the number of bottles.[7] The same witness said she had nevertheless seen nothing out of the ordinary about the behaviour of the accused or his children.[8]
[6] T35.
[7] T38.
[8] T39.
JYT said that the only occasions when the accused was not strict about religious observances was when he was drunk.[9] I do not draw an inference adverse to the accused on account of his abusing alcohol per se but his abuse of alcohol has some relevance to the credit of the witnesses. I will turn to that topic more specifically in due course.
[9] T57.
Evidence of witnesses
Ms Annette Lane
Ms Lane gave evidence of observations she made of the T family. Her husband had known the accused when they were younger. It appears the accused was brought up in the rural area. Ms Lane said that her first contact with the accused and his family was in November 2004 when her husband bought some sheep from the accused. She said she and her family socialised with the T family between 2004 and 2006.
I find that Ms Lane is mistaken about the year in which she first met the accused and his family. She said that when she met them in 2004 they were living in the shearing shed. However she went on to say that she visited the family when they lived in the rented house. It is reasonably clear that the family moved to the country town in 2001. I think it likely that they moved to the shearing shed in possibly 2002 and moved into the rented house no later than 2003. My finding about Ms Lane being mistaken about the dates does not detract from her credit in respect of the rest of her evidence. However she casts no helpful light on the uncertainty about dates.
Ms Lane said she saw nothing to suggest unhappiness in the children or impropriety on the part of the accused. In that respect her evidence is similar to that of the accused’s parents. They saw nothing amiss. That said, I find that Ms Lane’s evidence about being surprised and somewhat overwhelmed at the sight of the many beer bottles in the transportable home supports, or at least is consistent with, the children’s accounts of the accused’s alcohol consumption. Ms Lane never saw the accused drink alcohol. She noticed that the daughters wore head scarves. With the exception of the evidence about dates I accept Ms Lane’s evidence.
Ms Sarah Pammenter
Ms Pammenter was a TAFE lecturer in Port Pirie between 2007 and 2016. She said PT was a student in hospitality there in what she thought was 2008 or 2009. At that time PT was aged 19 or 20. She had left home and was living with an aunt and uncle in Port Pirie. The uncle is the accused’s brother. The TAFE course was to last three or four months.
Ms Pammenter gave evidence of an incident which occurred at the TAFE campus. The accused[10] came to the campus looking for PT The accused told Ms Pammenter he wanted to speak to PT. When he went to walk inside the classroom where Ms Pammenter and PT were, PT ran into a storeroom. Ms Pammenter described PT as appearing ‘clearly frightened and stressed and anxious…’[11] Ms Pammenter realised there was ‘a problem’.[12] She locked the door and prevented the accused coming any further. He said that he needed to speak to PT. He said ‘she’s broken my trust…’ Ms Pammenter told him he had to leave. He left after about 10 minutes. Later in the day he came back to apologise to Ms Pammenter ‘for making an outburst’. He told her ‘you don’t know what [PT] has done to our family’.[13]
Ms Donna Scafidi
[10] Ms Pammenter did not identify the accused but there is no dispute about him being the person Ms Pammenter is referring to.
[11] T41.
[12] T40.
[13] T42.
An affidavit of a fellow TAFE student, Donna Scafidi was tendered by consent (Exhibit P11). Her affidavit would suggest that the event occurred in January or February 2008. Ms Scafidi saw nothing of any interaction between PT and the accused but she does remember Ms Pammenter leaving the classroom to tell the accused to leave. She saw the class was quite upset. She does not explain what caused the upset.
The TAFE incident
In his arrest interview with the police on the 18th of January 2018 the accused admitted that he went to TAFE to see PT.[14] He admits slapping PT. He explained his reasons for slapping her thus:-
[ACCUSED]That’s what I was saying when umm when she said that about my she said to my sister in I don’t give a fuck what dad says, I don’t give, I don’t care and I told her, taking everything, umm when I told her umm she shouldn’t talk about me like that and I had told my, told them she started at a new TAFE and she’s not to stay up after midnight to use the computer because I know what she does on the computer
DICKENSON Was there a physical altercation at TAFE
[ACCUSED]Yeah I slapped her I slapped her I told you
[14] Exhibit MFIP23A, page 37, answer 553.
PT’s account is as follows:-[15]
[15] T155-6.
AIt was maybe one or two weeks before I was meant to finish the course and [T, DJ] had come onto the grounds and requested for me to come outside.
QDid you do that.
AYes.
QSo when you say 'went outside', you were in a classroom, were you.
ASo the classroom was a cottage on the grounds, so it was separate from the main building. So I had gone outside of the cottage and [T, DJ] had confronted me about the people I'd been speaking to on line, because he'd requested previously that I not speak to them. He'd also found on my Myspace, me discussing about me being bisexual. So he'd confronted me about that and asked me if I'd still been speaking to these people and I denied it because I was scared about what he'd say. Then he asked me again and I said 'No', and then he said I was lying and he hit me across the face hard enough that I had been knocked to the ground. From being knocked to the ground, I had scrambled up and ran inside to the cottage, into the storeroom and my lecturer, Sarah, had locked the door behind me.
QWhen you say he hit you to the ground, how did he hit you.
AWith his hand, across my face.
QSo was that a slap or a punch.
AIt was a slap.
QWhen he did that, were there other people around.
AYes.
QWhere were they.
ASo the classroom of people that I was doing food and hospitality with, they were inside and inside the classroom they had been peering through the windows and the sliding door.
PT said that the accused later visited the TAFE arranging for PT to take her belongings from a family van which he had brought along. He told her that she was no longer welcome at home.
The incident at TAFE is an uncharged act of discreditable conduct. While there was no challenge to its admissibility I indicate the permissible and impermissible uses of that evidence pursuant to s 34P of the Evidence Act 1929 (SA). The evidence is not admissible to suggest that the accused is more likely to have committed the charged offences (s 34P(1)(a)). The evidence is only admissible if I am satisfied that its probative value substantially outweighs any prejudicial effect and, if it is capable of showing a propensity or disposition of the accused as circumstantial evidence of a fact in issue, it has strong probative value (s 34P(2)). Pursuant to s 34P(3) I must determine that the permissible and the impermissible uses can be kept sufficiently apart. In my view the evidence of the confrontation at TAFE and the slap in a public place is strongly probative of a tendency on the part of the accused to be controlling towards PT. I use the evidence only for that purpose. I will deal later with questions of the credit of the accused’s and PT’s version of this event.
Evidence of JYT
JYT was 26 when he gave evidence. While he alleges that the accused was violent towards him there are no charges which relate to him. He and his elder sister, PT, are the witnesses who testify to the assault on the elder brother, AT (count 4). AT is one of the brothers who did not give evidence. JYT gave detailed evidence of the manner in which the accused behaved towards the children. He corroborated the evidence of his sisters about the accused’s violence towards all of the children. He gave quite nuanced evidence about the accused drinking alcohol.
On the topic of violence, JYT said that his older brother, AT, got the worst of it. He spoke of a specific incident involving his younger brother, JT. He said his father was more violent towards the older sister than the younger one. Discipline was often administered by a smacking stick in the early years, but later a cane was used. JYT said that the canes often broke. The accused hitting the children was ‘a daily worry’. He said:-
…I considered it a daily worry that someone would get hit. It doesn’t mean that you would get hit that day but someone would get hit every day, I considered it.[16]
[16] T74.
JYT spoke of an occasion when the accused kicked the younger brother in the buttocks because he had defecated in his pants.[17] This incident is not the subject of count 5, the assault on JT. It is an uncharged act.
[17] T72-3.
JYT says that the assault on the older brother, AT (count 4) began when the accused wanted to know who had left the toilet seat up. The accused was convinced it was AT who had done it and he tried to get him to admit to it. AT would not admit it. The accused started striking AT repeatedly in the face. JYT said that the accused was doing this in the tent in the shearing shed where AT slept. The accused and the other siblings slept on mattresses side-by-side in the upper storey of the shearing shed but AT slept in a tent (in fact AT continued to sleep in a tent when the rest of the family moved into the transportable home). JYT said he saw the silhouette of his father hitting his brother in the face and heard his brother’s screams. He later saw his brother’s face swollen. He said he himself told his brother to admit it while the attack was taking place. His brother spent that night sleeping in the car. When he came into the shearing shed the next day his face looked like a melon.[18]
[18] T72.
JYT said that he saw the accused assault PT on an occasion when the family were living in the country town. This alleged aggravated assault is the subject of count 7 in respect of which the prosecution has entered a nolle prosequi. Notwithstanding the nolle prosequi the defence submits that I should have regard to the circumstances giving rise to the discontinuance and draw inferences adverse to the credit of JYT and his sister LS who both give evidence on this topic, or what appears to be the same topic. While each gives evidence of a similar event involving PT, the location of the event, and by inference the time, is quite different.
Count 7 alleges that the accused committed an assault on PT between the 21st of July 2008 and the 2nd of July 2009. That assault is said to be aggravated by PT being a child of whom the accused had custody. PT turned 18 on the 24th of July 2007 so it would be necessary for the prosecution to prove that the assault occurred before that. PT was an adult during the period alleged in the count. PT gives no evidence about the incident.
JYT places the incident in the house in the country town. I think it is likely that the family moved to that house in the beginning of 2001 and stayed there for no longer than a year.
LS says that the incident occurred in the transportable house. While there is a great deal of uncertainty about dates I think it likely that the family moved into that house no later than 2004. From the affidavit of Ms Scafidi, the TAFE classmate of PT, I conclude that PT moved out of the house, i.e. the transportable house, in 2008.
Plainly it is untenable for the prosecution to continue the prosecution of the aggravated assault the subject of count 7. Although the prosecution could seek to amend the dates that are alleged, the present dates allege an offence when PT was an adult. Further the time limit for laying the alternative summary offence of assault has lapsed. Finally the evidence of JYT and LS is so much at odds as to location that the charge is unsustainable.
There are several explanations for the inconsistency. The defence urges the conclusion that either or both witnesses are lying about the incident or are so unreliable that the rest of their evidence is tainted. Their evidence of the other charges should be rejected.
Other possibilities are that each witness witnessed two quite separate incidents. Alternatively they witnessed the same incident but have misremembered the location of its happening. Neither witness specified a date for the incident. The date had to be inferred from the suggested location.
For reasons which I will come to I reject the defence submission. I am unsure of the true position. I will not treat the allegation as a proved uncharged act. I put it out of my mind.
I turn to JYT’s evidence about the accused’s consumption of alcohol. I have described his evidence in this regard as “nuanced.” I explain what I mean.
JYT said that it was difficult to say how often his father got drunk.[19] While at times he would get drunk every night, he would have extended periods of sobriety. He says he does not remember his father getting drunk when they lived in Adelaide or in the country town. He drank often when they lived in the shearing shed. He did not get drunk when they lived in the rented house although he would become so during the day on the farm to which he travelled each day to work.
[19] T61.
JYT remembered specific examples of the accused becoming drunk. He remembers an occasion when his father became very drunk on the farm. He was dancing around in front of the whole family. There was an occasion when he was driving from the rented house and he passed out. The children got the accused out of the driver’s seat and JYT drove home.
It became JYT’s task to help in making the accused’s home brew beer. All three siblings spoke of the accused’s excessive drinking. Ms Lane’s observations of the beer bottles lend some weight to that evidence.
I accept JYT’s evidence of his father’s alcohol consumption.
JYT does not directly support the evidence of either of his sisters in relation to their allegations of sexual offending. There are however discrete pieces of evidence which provide some support.
The first relates to an incident which JYT said happened when the family was living in Adelaide. It is not clear whether the parents had separated at the time although there is no mention of the mother being present. If the parents separated in 1999 and moved to the country town in 2001 the age range for the girls would have been 10 to 12 (PT) and three to five (LS). The range for the boys would have been 9 to 11 (AT), 7 to 9 (JYT) and 5 to 7 (JT). JYT described an incident in the Adelaide house that he regarded as ‘the first incident… that didn’t seem morally right to me…’[20] He said he panicked when he once heard his father yelling at PT and he saw that his sister was naked.
[20] T76.
There was a later occasion at the same address when the accused got the three boys to sit on a piano stool. He asked the boys if they wanted to see their sisters naked (in his witness statement JYT said ‘sister’). JYT said he giggled out of embarrassment but when his older brother said he did not want to see, he ‘sort of peeped a bit and I saw that my older sister was naked’.[21] Neither PT or LS gave evidence of that incident. That incident (“the piano stool incident”) and the earlier incident of the sister being naked are uncharged acts which the prosecution submits are capable of demonstrating a sexual interest on the accused’s part towards his daughters, or at least to the elder daughter PT.
[21] T77.
The next incident is said to have occurred when the family were living in the shearing shed. At that time JYT was sleeping on the ground level of the shed. The accused and the other children were sleeping on the upper level separated by the ladder. JYT said that he heard PT say ‘but you’re my dad’. JYT said his father said something but he could not remember what it was. JYT called out ‘I’m scared, I can’t sleep’.[22] The accused told him to go to sleep. He heard PT say she wanted to urinate. The accused would not let her do so at first but when she persisted he said she could not get dressed but she could take a sheet with her. She came down the ladder with a sheet. In the morning JYT woke to find his father and PT in an embrace on a couch on the ground level. He said that he was struck by the manner of the embrace. PT was ‘kind of stuck’ with the accused’s arms around her.[23] That is also an uncharged act which the prosecution submits is capable of demonstrating a sexual interest by the accused in PT.
[22] T78.
[23] T81.
JYT says that he left home when he was aged about 17. JYT said that on a Saturday his older brother told him that a sheep had got out of the property. JYT said he would handle it. One sheep had got out of the property onto the road. JYT was having trouble getting it back in. His father started screaming at him from the house. He was saying that he was in the wrong for not letting his older brother help him and he was wrong for going outside the property on a Saturday which is the Sabbath. An argument ensued between the father and son. The accused chased JYT off the property threatening him with violence. JYT went to the house of a neighbour. He hid in the house when his father came looking for him. He went to Adelaide and lived with his grandfather, that is, the accused’s father. The accused texted him saying that he could come back home but he could not have his privileges such as his guitar, keyboard and computer. JYT refused and stayed away.
Evidence of PT
PT was 29 when she gave her evidence. PT says that the accused first touched her sexually in Adelaide before the parents separated. She said that on an occasion when her mother had gone to bed the accused asked her to join him and watch the television program South Park. PT was about 10 when the parents separated. She said the accused stroked her stomach and vagina for a few minutes. He told her not to tell anyone. She said she did not understand what had happened.
The next sexual touching occurred after the parents had separated. PT believed she was 12. She said that in the kitchen of the house in Adelaide the accused pressed his groin up against her hip and moved it. She felt his erect penis. This is an act of the sort in particular (d) of count 1. PT said that when the family moved to the country town the accused would ask her to come to his bedroom for goodnight cuddles. He would touch her breasts and vagina underneath her clothes. He would grind his groin against her (particulars (a), (b) and (d) of count 1). She said that that behaviour began occurring occasionally when they moved to the country town but it progressed to occurring almost every night.[24]
[24] T141.
When the family moved to the shearing shed the accused slept for about three or four months on a couch on the ground level of the shed. PT said that on one occasion at night the accused asked her to come down to where he was sleeping. There he committed the same acts as he had done on the earlier occasions. PT said that for about a month the accused had a friend of his stay with them. The friend slept on the couch on the ground level and the accused moved a mattress to the upper level where he slept alongside the children’s mattresses. PT said that while the friend was staying the accused did not touch her sexually but when the friend left he began doing so almost every night.[25] The only times he did not touch her was when he was drunk or she was menstruating. PT said that she tried to sleep in the kitchen but the accused would ask her to sleep in the upper level.
[25] T148.
PT said that on one occasion she tried to sleep in the family’s van but the accused told her to come inside. PT said that on this occasion the accused tried to touch her breasts in the van but, for the first time, she told him to stop. She said he said ‘ok’ and stopped, at least on that occasion. This evidence is suggested by the defence to be unlikely.[26] It is suggested that it was unlikely that PT would get away from the accused in the van where she would be more vulnerable. Further it would be unlikely that the accused would desist when he had PT on her own.
[26] Addresses, T314-5.
Another way of looking at PT’s evidence on this topic is that it is really against interest. If she was lying, why lie about an incident where there could be no possible witness? Why say that the accused desisted when she told him to? I find this latter reasoning more likely.
PT said that when the family moved to the rented house the accused would touch her sexually almost every night, either in her own bedroom or his. She said she stopped getting dressed in her bedroom because the accused would peer through her window. She took to dressing in the bathroom. The touching at the rented house was the same as that which had occurred at the earlier addresses. PT said that when the family moved into the transportable house the accused continued touching her as he had always done. It took place in the accused’s bedroom. The accused removed a lock from PT’s bedroom door and put it on his own. Sometimes when he had PT in his bedroom he locked the door.
PT said that the accused never inserted his penis into her vagina. He told her that for religious reasons she was not to lose her virginity.
PT said that the sexual touching occurred until she left home at 19. Before she left home she had an argument with the accused. She could not remember what the argument was about but she said for the first time she stuck up for herself. She told the accused that he was not to touch her again. He said that he would not. She made him promise that he would not touch her sister.
PT said that in addition to the sexual offending the accused was violent towards her. He began being violent towards her when they lived in the country town. She said that when they lived in Adelaide the accused had been violent towards AT, the eldest of the boys, but not towards her.
PT said that the accused was violent towards her more than once.[27] However she was then only asked about the incident the subject of count 3 and the uncharged TAFE incident (Both JYT and LS gave evidence of other violence by the accused towards PT).
[27] T152.
PT said that the incident the subject of count 3 happened when the family was living in the shearing shed. PT could not remember how she got into trouble but the accused chased her up the stairs and hit her with his fists. She crawled to the side of the shed. The hitting went on for about 15 minutes. The accused put his knee into her and kept hitting her. She curled up in a ball to protect her face. She suffered red marks and bruises to her face, on her back, legs, arms and ribs. In my view there could be no suggestion that this behaviour, if proved, amounted to reasonable chastisement.
In Police v G, DM [2016] SASC 39, Peek J discusses the authorities on the topic of reasonable chastisement. In particular his Honour referred to the passage in the judgment of Lander J in the case of R v Kinloch (1996) 187 LSJS 124 at [130]. His Honour there said:-
…the law recognizes that if the circumstances for correction arise, the punishment must be moderate and reasonable. It cannot be administered “for the gratification of passion or of rage.” [authority omitted]. If the punishment is immoderate or excessive, or if it is administered for reasons unconnected with the purposes mentioned above, then the punishment is unlawful.
PT gave evidence about the alleged assault on AT (count 6). Like JYT she saw what was going on inside AT’s tent in the shearing shed from the outside of the tent. She heard thumping and AT’s screams. She saw her father come out of the tent. AT remained in it until dinnertime. The incident happened around lunchtime.[28]
[28] T154.
PT said that sometime after she left home, and after the TAFE incident, she had a seizure. She said she was terrified. She called her father who came to her for an hour or two. Her boyfriend at the time was present. The defence submits that, contrary to her assertion, she did have people other than her father from whom she could have obtained support. Her aunt and uncle lived in Port Pirie. There was her boyfriend. She had grandparents in Adelaide. Her mother lived in Adelaide. Further, the defence submits that it is unlikely that PT would have contacted her father in the way that she did if he had been abusing her physically and sexually as she says he was.
PT said that the accused would not allow her siblings to have contact with her for two-and-a-half years. However she said that if she knew the accused was away from the house she would call her sister.
She said that about three years after she left home she got permission from the accused for her sister to stay with her at times. She said the accused made the promise conditional upon her not speaking to her sister about ‘the business’ between them, by which she took her father to mean the sexual touching. She agreed and did not mention the touching to her sister.
She said the first person she did tell was her then-boyfriend. She said he had asked her why she did not speak to her father any longer. She told him that it was because ‘he sexually abused me… when I was a kid for years’.[29] Her boyfriend responded by saying ‘well, that sucks’. That was the extent of their conversation. In my view that account is sufficiently referable to the alleged offending to amount to an initial complaint within the meaning of s 34M of the Evidence Act 1929 (SA). The complaint evidence cannot be used testimonially. It is capable of being used to demonstrate consistency of conduct on the part of PT. Brevet Sergeant Dickenson said that the police had contacted the boyfriend but he would not provide a statement.[30] While delay in making a complaint cannot, by itself, detract from a witness’ credibility or consistency the reasons given for delay may be scrutinised and may adversely affect credit and claims to consistency.[31] PT’s evidence gains some support from JYT as I have already mentioned. It also gets some support from LS.
[29] T158.
[30] T248.
[31] R v Jones [2018] SASCFC 80.
LS said that she noticed in the shearing shed at night that the accused was often on PT’s mattress. It was too dark for her to see what was happening but she would hear PT complaining and saying ‘no’. She would then hear a reassuring voice from the accused.[32] She said ‘it made sense to me when he did it to me’.
[32] T203.
LS said that there was an occasion in the transportable house when the accused was ‘really drunk’. PT had left home by then. She did not know where JYT was. The only siblings there were AT and JT. The family were supposed to be praying. The accused was telling the children that he should not have been praying when drunk. He was crying and screaming. He said ‘I almost fucked your sister’. She said AT was screaming at him to stop but he would not. He just kept going on about it.[33]
Evidence of LS
[33] T205.
LS was 22 when she gave her evidence. She said that the accused sexually touched her while they were living in the shearing shed. It only happened there.[34] I say something more about the evidence relating to the period that the family stayed at the shearing shed. It is not consistent. What is relatively clear is that they moved to the house in the country town in around 2001. They were probably not there for more than a year. On that basis they may have moved to the shearing shed in 2002. LS turned six in the middle of that year. I pause to briefly recite the evidence that witnesses gave about the period during which the family lived in the shearing shed:-
·JYT: ‘I think over a year… not entirely sure’.[35]
·PT: ‘…less than a year’.[36]
·The accused: ‘a couple of months… nearly two months’[37] and ‘…about six weeks I think’.[38]
·The accused’s father: ‘I would have said it was between six months, more or less’.[39]
[34] T200-3.
[35] T53.
[36] T131.
[37] Exhibit MFIP23A, page 17, answers 257 & 261.
[38] Exhibit MFIP23A, page 48, answer 712.
[39] T266.
LS thought she was aged seven when the sexual abuse started (In his record of interview[40] the accused said that LS probably was aged seven when they were living in the shed).
[40] Exhibit MFIP23A, page 20, answer 295.
LS said that the sexual abuse began with the accused laying on her mattress in the shearing shed. He had never been on her mattress before. He turned her onto her back. She was naked. He sucked her nipples and rubbed her vagina. She said that this sort of behaviour occurred ‘for a while, maybe even a few weeks that it would happen, what felt like every night’.[41] She said the abuse consisted of squeezing and sucking and licking her nipples and rubbing her clitoris. These acts are all particularised in count 2, particulars (a) to (c).
[41] T202.
LS said that something memorable happened the first time the accused sexually touched her. It was in the morning before anyone got up. She said that when the accused finished touching her he went downstairs and called everyone down to prayer, as was his custom. This happened about 20 minutes after he had finished touching her. LS said she was too scared to get up. As a result she was the last one to go down. Once downstairs the accused:-
…kept asking me how I was, if I slept well and it was really, really weird because he was never, like, friends with us. He never actually talked to us that way before. Like, he’d never asked me if I slept well, ever.[42]
[42] T202-3.
LS said that the accused was violent towards her. Counts 8 and 9 are charges of assault against her. LS gave no evidence at all about the incident the subject of count 8. I found no case to answer. The incident the subject of count 9 is not the first alleged violence towards LS. She said the first occasion on which the accused was violent towards her was an occasion when he was on his computer talking to his girlfriend. JYT was holding her upside down. LS uttered the words ‘Jesus Christ’. The accused left his computer and got LS to get him a wooden spoon with which he then hit her on the hands for the profanity.[43] If this incident was proved I would not be able to exclude the characterisation of what happened as reasonable chastisement.
[43] T195-6.
The next allegation is the event which is the subject of count 9. It is alleged to have occurred in the transportable house. LS’ account is as follows. The accused received a call from one of LS’ teachers saying she had not finished some school work. She was sitting on the couch with a laptop in front of her. The accused took the laptop from her and threw it on the ground, breaking it. He then dragged LS towards the bedroom by the hair, kicking her as he did. She got away and ran to the laundry where he caught up with her. There he slapped, punched and kicked her in the face. He was screaming that if she did not let him hit her he would keep going. She sustained a split-up lip where there is still a scar.[44] Exhibit P21 is a photo of the scar taken in more recent times. She thought the incident might have occurred a year before she left home. She left home when she was 16. She turned 16 in 2012. By then LS’ sister and middle brother had left home.
[44] T198.
LS gave evidence of an incident in which she heard, although did not see, the accused being violent towards AT. She said it was an occasion at the house in the country town. Some icing sugar was missing. The accused decided that AT had taken it and, according to LS, he started beating AT. However the beating occurred outside the house. LS did not see the incident. She heard the accused screaming at AT saying that if AT did not admit taking the icing sugar he would not stop hitting him.
I treat this evidence with caution for a number of reasons. LS did not see the incident. That being so it is difficult to discern whether, if the incident is proved, it amounted to more than reasonable chastisement. That said, the account is consistent with the evidence of JYT that the accused was more violent towards AT than any of the other children.
LS is the only witness to testify to the incident the subject of count 5 which is a charge of common assault on JT, the youngest brother. JT did not give evidence. LS said that on an occasion in the shearing shed the accused stabbed JT in the left wrist with a fork. There were four holes in JT’s wrists. He was bleeding. All the children were at the dinner table. LS cannot remember what led up to the stabbing. JT turned eight in December 2002. If this incident is proved I do not see how stabbing a seven to eight-year-old with a fork could be regarded as reasonable chastisement.
LS said there was another uncharged occasion when she saw the accused throw JT into a cupboard in the transportable house causing a dent in the cupboard.[45] LS confirmed that the accused would drink alcohol to excess. She said he started drinking when they lived in the house in the country town.[46] He would drink three or more large bottles of beer a day. LS said that the accused would become violent when drunk.
[45] T194.
[46] T204.
While the evidence of the circumstances in which LS left her father’s home is unclear, it appears she may have left three times. She said she left home the first time just before she turned 16. She turned 16 in mid-2012. LS said she left home by herself possibly three times. She said she left the first time without the accused’s knowledge.[47] Although the details of her leaving on that first occasion are not clear, and not all of them were mentioned in her statement to police, she said she left the first time with the assistance of her brother JYT. Other evidence would suggest he had left home by then. JYT arranged for a police officer to call at the transportable house to see that LS’ departure was uneventful. It appears that the mother came to the property and collected LS.
[47] Examination-in-chief, T206 & Cross-examination, T223-230.
In cross-examination LS agreed that she lived with her mother for a couple of months after leaving her father for the first time, then she returned to live with her father.[48] In further cross-examination she said she returned to live with her father the first time not, as it was put to her, because she was finding it difficult living with her mother, but because the accused was communicating with her on Skype. He convinced her to return to live with him. She asked the accused to promise never to hit her again and he said he would buy her a pet.[49] After returning, LS said she lived with her father for about a year.
[48] T228.
[49] T226.
The second time LS left she hitchhiked to Adelaide and lived with her mother. It was put to her that this time she stayed with her mother for a short time, one or two months. She was unable to remember.[50] She agreed that she returned a second time to live with her father. She agreed it was possible that she stayed with him this time for about 10 months.[51] LS said she went back to her father three times but the details of a third return were not explored. She agreed that she went back to live with him once when she was an adult.
[50] T229.
[51] T229.
It was put to LS that when she left as an adult the reason for her leaving was that she had had disagreements with her father about what she was doing online. LS agreed but said the disagreement was because she wanted to talk to people online and the accused did not want her to.
This topic is mentioned many times by the accused in his record of interview conducted on the 18th of January 2018.
There was read an affidavit of a friend of the two daughters. The affidavit of Ms Lisa Templer is Exhibit P22. She speaks of an occasion in December 2014 when she and her father collected LS and her belongings from the father’s transportable house. LS turned 18 in July 2014.
The defence suggests that LS’ returning to live with her father is inconsistent with her claims of the accused’s violence towards her and her siblings and inconsistent with his sexual offending against her.
The defence case
Accused’s record of interview on the 18th of January 2018
The accused was arrested at the transportable house at about 8am on the 18th of January 2018. [52] He was interviewed by Detectives Jessica Dickenson and Paul Clonan outside the transportable house. During the interview the police officers drove the accused down to the shearing shed where they had once lived. Other police were coming in and out of the house searching it.
[52] Exhibit P23, Transcript MFIP23A.
I draw no inference against the accused exercising his right not to give evidence. I take into account what he said during the interview with police. It is part of his case. However, I bear in mind that what he said in the interview was not sworn evidence. It was not the subject of cross-examination in court.
I digress to say there was reference in the interview to the accused being also arrested for cultivating more than the prescribed number of cannabis plants. I was already fully aware of that matter. In fact I had sentenced the accused for that offending on the 22nd of November 2018. The accused’s election for a Judge Alone Trial was made before me in Port Augusta after that sentencing and in full knowledge of it. I ignore those parts of the interview which concern the cannabis matter. That matter has nothing whatever to do with the allegations the subject of this trial.
The accused denied the sexual allegations made by PT and LS. The allegations by LS were the first put to him in the interview. He denied them. He said that LS was a storyteller.[53] He referred frequently during the interview to LS making inappropriate communications on the internet. When the allegations by PT were put to him he denied them. He said that he did not know that she was a storyteller as well.[54] He surmised that PT had been speaking to LS.[55] Collusion was put to both witnesses in cross-examination. The accused gave a quite detailed explanation about how there might have been an occasion when he might inadvertently have touched PT on the breasts.[56]
[53] Exhibit MFIP23A, page 19.
[54] Page 21.
[55] Page 60.
[56] Pages 35-36.
The accused denied the children’s allegations of violence. He said that he only administered corporal punishment for misbehaviour until the children were aged 10, and then the punishment consisted only of a tap on the hands with a wooden spoon.[57] He said that lectures and explanations were his form of punishment.[58] He denied ever punishing the children with a cane. He explained that he did once break a cane on a bench, presumably in the presence of the children, and he showed the police where in the shearing shed the bench was.[59]
[57] Pages 32, 33 & 43.
[58] Page 65.
[59] Pages 33 & 49.
The accused agreed that he had slapped PT at the TAFE campus. He explained that she had defied his proscription about accessing the internet at particular times while living in Port Pirie with his older brother. He said he had been told that she had rudely defied his injunction to her aunt and uncle.[60]
[60] Pages 24 & 37.
The accused agreed that he had slapped LS once. His explanation for the slap is not clear but he agreed that he lost his temper with her.[61] He said that he had never seen a scar on LS’ upper lip.[62] It had been put to LS in cross-examination that she had sustained the scar after she left home. She disagreed.
[61] Pages 23-25.
[62] Page 34.
The accused agreed that he had kicked one of the boys ‘up the butt’ for causing a problem in the house in the country town. He was unsure whether it was the eldest son (AT) or the youngest (JT).[63] JYT had said in his evidence that his father had kicked the younger boy JT because JT had soiled his pants. The accused agreed in the interview that there had been a problem with JT soiling his pants. Later in the interview the accused said that it was the older boy he had kicked.[64] In his evidence JYT said that the accused’s violence was directed more at the eldest boy than anyone else.
[63] Page 24.
[64] T35.
The accused maintained that the family lived in the shearing shed for only six to eight weeks.[65] He said that he had put up partitions between where the boys and the girls slept.
[65] Pages 17 & 48.
He agreed he was a religious man but said that as the children grew up they were free to make up their own minds about their religious observances. While he sought to observe religious practices about the Sabbath[66] and the girls’ menstruation[67] he did not enforce rules on the children. He had home schooled the children for religious reasons.[68]
[66] Page 61.
[67] Page 62.
[68] Page 30.
I have already indicated that I draw no inference against the accused by reason of his religious beliefs. However if the imposition of religious rules was as pronounced as the witnesses say it was, rather than as the accused claims, then that evidence may weaken the criticisms of, particularly, the daughters for having contact with the accused after they left home. The strict enforcement of rules which they speak of suggests considerable controlling behaviour. That is particularly so as the rules tended to isolate the children from other social contacts.
Evidence of the accused’s father, LH
The accused’s father lived in Adelaide at all relevant times. LH said that he saw nothing amiss in his son’s relations with his children. He never saw the accused physically discipline the children. He was not asked whether he had heard of the slaps administered to both daughters or the kick to one of the sons. He was not asked any questions about his son’s drinking or religious strictures.
LH said that he did not recall visiting the accused and the children when they lived in the house in the country town. He thinks he visited them twice when they lived in the shearing shed and about eight times when they lived in the transportable house. He was not asked whether he visited them at the rented house. His wife did not visit the family at all.
LH said that the middle son lived with him in Adelaide for over a year after he left home. He said, contrary to JYT’s evidence, that JYT never complained about his father. He did complain about his mother.
Evidence of the accused’s mother, MH
MH had no concerns about the accused’s treatment of his children. She had made an enquiry of the Education Department about home schooling but was reassured that it was normal.
Erroneously I find, MH believed that the accused and his wife separated when they were living in the house in the country town. It is the evidence of all other witnesses that they separated in Adelaide.
Like her husband, MH was asked no questions about what, if anything, she knew about the accused’s admitted physical admonitions of the girls and one of the boys. She was asked no questions about the accused’s drinking or his religious strictures. If neither parent could throw any light on these topics then the light they throw on the children’s upbringing is slight.
Separate consideration – Cross-admissibility - Collusion
Counts 1 & 2
I must give separate consideration to all counts including counts 1 and 2. The evidence relating to each is different. PT says that her father sexually abused her from before the parents separated in 1999, when she turned 10, until she left home at 19. The sexual allegations in count 1 are set out in particulars (a), (b) and (d), i.e. touching on the breasts and vagina, and pressing his penis against her body. There is no evidence of acts constituting particular (c).
By way of contrast LS says that her father sexually abused her only while the family lived in the shearing shed. I find that the family lived in the shearing shed for a period of between six months and a year (I will provide reasons for so finding shortly). Like PT, LS says her father touched her breasts and vagina (particulars (b) and (c) in count 2) but both she and PT speak of a further sexual act which the other does not. The accused pressing his penis against her body is evidence unique to PT and the sucking of the nipples is unique to LS (LS said she slept naked. That may explain how that incident occurred with LS but not PT).
Essential to their evidence is that while they were living in the shearing shed, and only there, the accused was sexually abusing both girls. LS gives evidence of hearing words passing between PT and the accused indicative of sexual abuse.
Both witnesses say the sexual abuse occurred when they were prepubescent. PT says it began when she was under 10. LS says it occurred when she might have been seven.
Neither witness alleges that the accused engaged in penetrative sexual behaviour. PT says that the accused said it was important she remain a virgin. Recent High Court authority suggests that before evidence of a sexual tendency on the part of an accused can be cross-admissible where there is more than one complainant, there needs to be established some link between the two. In Hughes v The Queen [2017] HCA 20 at [64] the plurality judges discussed the extent of that link before the evidence can be seen as possessing significant probative value. Their Honour’s said:-
[64]The assessment of the significant probative value of the proposed evidence does not conclude by assessing its strength in establishing a tendency. The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue. A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant. The Court of Criminal Appeal did not err in finding that the tendency evidence of each of the complainants and AA, BB and VOD met the condition imposed by s 97(1)(b) in relation to each count in the indictment.
In McPhillamy v The Queen [2018] HCA 52 at [31] the plurality judges said this:-
[31]Moreover, where, as here, the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together. The suggested link in this case is the appellant's tendency to act on his sexual interest in young teenage boys who were under his supervision. The supervision exercised by the appellant as assistant housemaster in 1985 over vulnerable, homesick boys in his care has little in common with the supervision exercised in his role as acolyte over "A", an altar boy, when the two were at the Cathedral for services in 1995‑1996. The evidence does not suggest that "A" was vulnerable in the way that "B" and "C" were vulnerable. The tendency to take advantage of young teenage boys who sought out the appellant in the privacy of his bedroom is to be contrasted with "A"'s account that the appellant followed him into a public toilet and molested him.
In my view the evidence of both witnesses is cross-admissible. There is a sufficient link between the evidence of the two complainants so that the evidence of one is highly probative of the evidence of the other. The complainants are sisters. The offending began, or occurred, when each was prepubescent. Two sorts of sexual offending are common to both, at least when the offending was occurring in the shearing shed. There was in the case of each complainant a high risk that the accused might be detected or at least the accused was not concerned about that risk.
The similarity of the evidence of each of the complainants would be meaningless unless I could exclude collusion between the two complainants. I find that there is no collusion between the three siblings who gave evidence. The very limited nature of the support that each gives to the other counts against collusion. The difference between the accounts of the two complainants does likewise. JYT does not support the evidence of LS about the sexual offending at all. His support for PT is presented in an understated way. LS is likewise understated in the support she gives the evidence of PT. Just as I find that there is no collusion between the three witnesses as to the sexual offending I also find that there is no collusion as to the allegations of violence. The same considerations apply. The support each gives is modest. Nevertheless there is a unity about the evidence of each that the accused was violent towards the children. The accused himself admits something of that violence but in my view he grossly understates it.
Counts 3, 4, 5 & 9
Counts 3 and 9 relate to the alleged assaults on PT and LS respectively. Counts 4 and 5 relate to the two brothers AT and JT who did not give evidence.
There arises the question of cross-admissibility of the evidence relating to each assault and the admissibility of the uncharged acts of violence. I deal with the latter first. I must bear in mind the distinction between reasonable chastisement and assault. Notwithstanding that corporal punishment of children has nowadays become less common and somewhat disapproved of. I would acknowledge that reasonable chastisement might include hitting with the hand or an instrument such as a kitchen utensil or a cane. That however is not what the witnesses say happened. JYT said that the accused would become violent when intoxicated. There are uncharged acts which would have amounted to individual assaults on each of the siblings. They are as follows:-
·PT - The slap at TAFE.
·AT – JYT said that the accused threw a plastic bucket at AT when the family lived in Adelaide. AT’s face bled.[69] LS said that she heard AT being beaten by the accused when icing sugar went missing.[70]
·JYT – JYT said he was choked and hit in the face.[71]
·JT – JYT said JT was kicked in the buttocks for soiling his pants.[72] LS said that the accused threw JT into a cupboard.[73]
·LS – Slap on the head (admission by the accused).[74]
[69] T73.
[70] T199.
[71] T73.
[72] T72-3.
[73] T194.
[74] Exhibit MFIP23A, pages 23-24.
In addition to the specific uncharged assaults there is evidence of more generalised violence. PT said that the accused hit AT a lot. The accused also hit all three of the boys with fists. The accused himself admitted slapping both of the girls once and kicking one of the boys once. In respect to the slapping of the girls he said that he lost his temper.[75]
[75] Exhibit MFIP23A, pages 23-25.
The prosecution does not seek to lead evidence of the uncharged acts to demonstrate a tendency on the part of the accused to be violent towards his children. I am not sure that the prosecution is not entitled to do that. However the prosecution submits that the evidence of uncharged acts of violence may be used permissibly to demonstrate why none of the children ever reported violence when it occurred, and why the girls never complained about the sexual abuse. In my view that is a perfectly permissible purpose for the uncharged acts of violence and I so use it. I do not use the evidence of uncharged acts to suggest the accused is of bad character or that he had a tendency to be violent towards the children.
I turn to the question of the cross-admissibility of the charged acts of violence. As I understand the position of the prosecution it is not sought to suggest that there is cross-admissibility. Each of the charged acts is somewhat different in nature. I do not therefore find that there is cross-admissibility as between the charged counts of violence.
Motive to lie
Defence counsel, Ms Barnes, submitted that each of the accused’s children who gave evidence has lied about his treatment of them. They have done so because they are each unhappy about the way they were brought up. Presumably that unhappiness relates to their receiving corporal punishment, albeit reasonably imposed, being home schooled and being brought up in a strict religious household. In his record of interview the accused claimed that LS had complained to him that her home schooling had ruined her life.[76]
[76] Exhibit MFIP23A, page 30.
I reject this submission. I have already found that there was no collusion between the three siblings. I find unsustainable that each witness has given such detailed evidence of the accused’s drunkenness, violence and, in the case of the two daughters, sexual abuse because they were unhappy with their upbringing. That said, my rejection of the suggested motive to lie does not assist the prosecution case. It is neutral. It is not for the defence to prove a motive for any witness to lie. The burden of proof remains throughout for the prosecution.
Forensic disadvantage
It has been a long time since the beginning of the criminal behaviour alleged against the accused and the trial. PT says that the sexual abuse of her began before the parents separated in 1999. The accused suffers from a significant forensic disadvantage by reason of the 20 or so years which have elapsed before the trial. Maybe if the witnesses had complained earlier he would have been in a better position to provide a reliable history of events. His own parents may have done so too. The maternal grandmother is ill and was unable to give evidence. School or TAFE records might have been available. I bear these disadvantages in mind when scrutinising the case for the prosecution.
Prior inconsistent statements
Ms Barnes drew to the attention of the three siblings, respects in which their evidence either differs from what they have said in their police statement, is disclosed for the first time in court or is inconsistent with the evidence of other witnesses. In a moment I will refer to specific inconsistencies but I deal first with the criticism that is made of inconsistencies of all three witnesses about dates and locations of which the family was living. I accept the submission that the three witnesses were inconsistent amongst themselves and at times inconsistent internally about dates, and at times, locations. That criticism can also be made about the accused’s parents. It can also be made inferentially against the accused himself. I appreciate that he was at a considerable disadvantage in this respect when being interviewed by the police on his arrest. I make no criticism of his general lack of clarity about dates at that stage. However I asked Ms Barnes several times during her cross-examination of the siblings to put to them as clearly as she could the ‘correct’ dates for events but she was largely unable to do so. I decline to draw any adverse inference against any of the three siblings in regard to their evidence about dates and locations. I turn to individual inconsistencies relating to each of the siblings.
I turn first to PT. She agreed in cross-examination that in her witness statement she had said that the violence against her started when the family lived in the country town whereas in court she said it started when they lived in Adelaide. PT said that the TAFE lecturer, Ms Pammenter, saw her being hit by her father whereas Ms Pammenter appears not to have observed the hit. In her affidavit Ms Scafidi says that she was in the classroom and did not see the hit herself whereas PT said that the accused hit her with members of the class looking out through the window. PT said that her father was barred from the TAFE campus whereas Ms Pammenter knew nothing of any such barring. PT said that sexual abuse of her occurred multiple times when they lived in the house in the country town whereas in her statement to the police she said it occurred at that address only once.
In respect of JYT he agrees that he made no mention to the police of his being choked by his father. He agrees that he did not mention to the police seeing his father throw a bucket at AT when they lived in Adelaide causing AT an injury. He mentioned both those incidents for the first time in court. JYT agreed that in his police statement he said that on the occasion of the piano stool incident his father had asked the boys whether they wanted to see their sister (singular) naked. In court he said the father said sisters (plural).
In respect of LS she agreed that she had not mentioned the occasion of being hit by her father when she had uttered the profanity while being held upside by JYT until a proofing with the DPP shortly before the trial. Further there is no evidence of that episode by JYT himself.
I do not overlook these individual inconsistencies but I find none of them detracts significantly from the evidence of the individual witness. Each gives an account of life with their father over a long period of time. Each was a young child for a good deal of that time. In my view the inconsistencies which have been pointed out are, in the circumstances, relatively minor.
Discussion
Evaluation of witnesses
I find that each of the siblings is a credible witness. They all gave their evidence in a straight forward fashion without any apparent exaggeration. In fact, to the contrary, each spoke in a rather understated way about their experiences. In cross-examination they appeared ready to concede errors, uncertainties or inconsistencies. Their claims to have witnessed something happening were modest. I turn to consider each of the siblings separately, in the order they gave their evidence.
JYT
In my view JYT was a thoughtful and honest witness. Although he said his father treated him harshly at times he said that others suffered more than he did. No charge relates to him. He said his older brother, AT, got the worst of the accused’s violence. PT says that same. The younger brother was treated worse than JYT himself was. JYT particularly remembers JT being kicked in the buttocks for soiling his pants. Of the two sisters, PT was treated more harshly. PT’s account of violence is more extensive than that of LS’.
JYT does not claim to have seen any sexual abuse of LS. His evidence about what he noticed about the interaction between the accused and PT is modest and subtle. He said he heard a verbal exchange between the two of them from the lower level of the shearing shed and was sufficiently concerned about what he heard to call out to his father that he could not sleep. In my view that is striking evidence of a child’s reaction to something he finds confusing and worrying. His observations of the embrace between the accused and PT the next day is also striking. I have already mentioned his nuanced evidence about his father’s drinking. JYT acknowledged in detail the periods of sobriety that his father had. I find that JYT provides some support for PT’s account of her sexual abuse (count 1). He has nothing to say about any sexual abuse of LS (count 2). He does not claim to have seen the alleged assault on PT the subject of count 3 although he supports in a general way the violence the accused meted out to PT. I accept his evidence of the accused’s assault on AT in the tent (count 4). JYT says nothing about the stabbing of JT with a fork (count 5) although again he supports in a general way the accused’s violence towards that brother.
He says nothing about the alleged assault on LS, the subject of count 9. Again he supports in a general way her account of the accused’s violence towards her.
I find JYT was a truthful witness and, in material respects, a reliable one.
PT
I found PT to be a truthful and in material respects, a reliable witness. She gave relatively understated evidence of a long period of sexual abuse beginning with a single incident before the parents separated. She was under 10 at the time. She said there was then no offending for years, until she was 12. The sexual offending occurred frequently for the period the family lived in the shearing shed, the rented house and the transportable house. For reasons her father explained to her he never performed penetrative sexual acts. She never complained or stood up to her father until she left home. When she did stand up to the accused she made him promise not to touch her sister. She did not claim to have ever witnessed any sexual abuse of her sister.
Her evidence of violence by her father relates mostly to violence against the boys ranging, like the evidence of JYT, from the most severe violence towards AT, less severe violence towards JT and the least severe violence to JYT. Her evidence of physical abuse of her is restricted to a couple of discrete events, including that which is the subject of count 3. Her evidence of violence towards her is of a more general sort of harsh punishment.
PT gives evidence of the prolonged course of sexual offending against her over a period of 12 years but with the important caveat that there was a gap of some years between the first isolated incident in Adelaide and the frequent resumption in the country, particularly at the last three addresses. It might be expected that the violence she experienced herself, and that which she saw happening to others, made it unlikely she would complain until she was relatively free of the accused’s influence. Her complaint to her boyfriend demonstrates, in my view, consistency of conduct on her part.
PT gives no evidence about count 2, the alleged sexual offending against LS. She gives credible evidence of the assault on herself (count 3). She says nothing about count 5, the alleged assault on JT, but supports generally the evidence of violence against him. She gives credible evidence about the tent assault on AT (count 6). She says nothing about count 9, the alleged assault on LS, although she speaks about violence being meted out to LS. Her evidence is supported to an extent by the evidence of the observations of JYT and LS. Her evidence gains some support by the evidence of LS’ sexual abuse being cross-admissible with hers. PT gives evidence only of the sexual acts comprising particulars (a), (b) and (d) but not particular (c). I draw no adverse inference against her on that account.
I find PT to be a truthful witness and, in material respects, a reliable one.
LS
I found LS to be a truthful and, in material respects, a reliable witness. She says she was sexually abused by the accused only while the family lived in the shearing shed. I find that the family lived there for between six and 12 months. LS was probably six or seven at the time. She does not claim to have experienced penetrative sexual activity. She said the accused’s behaviour towards her was similar to that claimed by PT but there are differences which tell against collusion. For reasons that I have already explained I find the evidence of the sisters’ sexual allegations cross-admissible. For that reason LS’ evidence gains some support from PT. The experience of one at the hands of her father makes more likely the experiences of the other.
I accept that it is not at all clear why the accused might sexually abuse the older girl for years and the younger one for a much shorter time. PT says that the sexual abuse of her continued at the rented house and the transportable house. In fact his attentions to her increased at the rented house. There the accused was trying to watch her getting dressed. She took to getting dressed in the bathroom.
I accept LS’ evidence that the accused committed the three sorts of particularised sexual activity against her multiple times over a period of six to 12 months. In my view that behaviour amounts to maintaining an unlawful sexual relationship.
LS says nothing about the alleged assaults on PT (count 3) or AT (count 4).
She alone gives evidence of the assault on JT (count 5). Despite JYT and PT saying nothing about that incident, while it might well be expected that the whole family was at the dinner table, I accept LS’ evidence on that topic. I accept LS’ account of the assault on her which caused her the cut lip (count 9).
The accused
I have already indicated that I draw no inference against the accused by reason of his exercising his right not to give evidence. I bear in mind what he said to the police. I also bear in mind that he is at a forensic disadvantage both because of the long delay in the allegations coming to light but also because it must be difficult to order one’s thoughts about such extensive allegations when being arrested without any advance notice. That said, I found the accused’s exculpatory answers unbelievable. I find he tried to distance himself from the allegations of sexual offending against both daughters in the shearing shed. He understated the time they lived there. He said it was six to eight weeks when the tendency of all the other evidence says that it was six to 12 months. No one else spoke of there being partitions put up in the shearing shed to separate the sleeping quarters of the boys and girls.
I find the accused grossly understated his drinking. The evidence of all three siblings indicates that he was intoxicated for quite long periods. The evidence of Ms Lane provides some small support for the evidence of the siblings.
I find that the accused made attempts to ‘confess and avoid’ topics in an unbelievable way. He sought to explain how he might have inadvertently touched PT sexually.[77] He made convoluted justifications for his slapping PT and LS and kicking one of the boys. His account about very mild discipline with a tap on hands with a wooden spoon in unbelievable and inconsistent with all the other evidence. The accused went out of his way to blacken particularly PT and LS by constant reference in the interview to their having boyfriends and their making connections with people on the internet. I find he understated his religious strictures within the household. He implausibly claimed never to have seen the quite noticeable scar on LS’ lip.
[77] Exhibit MFIP23A, pages 35-36.
I reject the accused’s exculpatory statements.
The accused’s parents
I find that while both parents were doing their best to tell the truth they do not materially assist the defence case. They cast almost no light on historical facts of the accused’s family. It is unsurprising that they saw nothing to indicate the accused was sexually abusing his two daughters and was violent towards all five children.
Conclusion
My rejection of the accused’s exculpatory statement does not assist the case for the prosecution. However I am satisfied beyond reasonable doubt of the truthfulness and reliability of the siblings’ evidence about the remaining charges, that is, counts 1, 2, 3, 4, 5 and 9. I am satisfied that every ingredient of each of those counts is proved beyond reasonable doubt.
Verdicts
Count 1 – Maintaining an Unlawful Sexual Relationship with a Child (PT) – Guilty
Count 2 – Maintaining an Unlawful Sexual Relationship with a Child (LS) – Guilty
Count 3 – Common Assault (PT) – Guilty
Count 4 – Common Assault (AT) – Guilty
Count 5 – Common Assault (JT) – Guilty
Count 9 – Aggravated Assault (LS) – Guilty
0
3
1