R v T, PG
[2022] SADC 79
•1 July 2022
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v T, PG
Criminal Trial by Judge Alone
[2022] SADC 79
Reasons for the Verdicts of her Honour Judge Fuller
1 July 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
Accused charged with maintaining unlawful sexual relationship with a child - in the alternative accused charged with maintaining unlawful sexual relationship with a child with same particulars of unlawful sexual acts in principal count but confined to period when complainant was aged 16. Complainant alleged to have been 16 and 17 years old at time of offending alleged in principal count- complainant alleged offending commenced when she was 16 in late January 2017 on a specific occasion when she attended accused's home after school to go shopping for a present for her mother's birthday - sexual offending escalated thereafter - when 17 years old prosecution allege that accused was in a position of authority as de facto partner of complainant's mother - accused not cohabiting with complainant's mother and complainant's mother not called to give evidence about nature of relationship - complainant's credibility and reliability significantly undermined when occasion identified as coinciding with first sexual encounter was found to have occurred in 2018 when she was 17 - inherent unlikelihood of aspects of account of other alleged unlawful sexual acts - text messages revealed that accused's relationship with complainant unhealthy and obsessive and involved touching of complainant's breasts in presence of complainant's mother when she was 18 years of age - evidence not sufficiently credible or reliable to prove two or more unlawful sexual acts when complainant under 18 years of age.
Verdict: Not guilty of both counts.
Criminal Law Consolidation Act 1935 (SA) ss 50, 50(1), 50(12); Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 13(7), 34M, 34P(2)(b), 34L; Family Law Act 1975 (Cth) ss 4AA, 4AA(1), 4AA(2)(b); Family Law Relationships Act 1975 s 11A, referred to.
R v Mann (2020) 135 SASR 457; R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; Azzopardi v R (2001) 205 CLR 50; R v Weetra (2010) 108 SASR 232; R v Usher [2014] SASCFC 32; Fairbairn v Radecki [2022] HCA 18, considered.
R v T, PG
[2022] SADC 79
On 18 and 19 May 2022[1] the accused was arraigned before me on the following Information:
[1] Following an application by defence counsel, I ordered that the Director elect to proceed with either count 1 or 2. The Director declined to do so, and I ordered a stay on count 2 on 18 May 2022. Having reflected upon the matter, I determined that I was in error in ordering the Director to elect and I discharged the stay on count 2 on 19 May 2022. The accused was then arraigned on count 2, both counsel agreeing that as this was an alternative charge in a trial by Judge alone, neither the accused nor the prosecution were prejudiced by the fact that the trial had commenced, and the complainant’s evidence had commenced.
PGT is charged with the following offences:
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
PGT between the 1st day of January 2017 and the 20th day of September 2018 at Whyalla Norrie, being in a position of authority in relation to CAP, a person under the age of 18 years, maintained an unlawful sexual relationship with her by engaging in two or more unlawful sexual acts with or towards her, namely:
a) kissing her on the mouth on more than one occasion;
b) touching her breasts on more than one occasion;
c) performing cunnilingus upon her on more than one occasion;
d) causing her to perform fellatio upon him on more than one occasion;
e) attempting to insert his penis into her vagina on more than one occasion;
f) inserting his penis into her vagina on more than one occasion; and
g) communicating with the intention of procuring her to engage in sexual activity.
Second Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Ibid).
Particulars of Offence
PGT between the 1st day of January 2017 and the 20th day of September 2017 at Whyalla Norrie, maintained an unlawful sexual relationship with CAP, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
a) kissing her on the mouth on more than one occasion;
b) touching her breasts on more than one occasion;
c) performing cunnilingus upon her on more than one occasion;
d) attempting to insert his penis into her vagina on more than one occasion; and
e) inserting is penis into her vagina on more than one occasion.
The plea
The accused pleaded not guilty to both charges and at his election I heard the trial without a jury. I now publish my reasons for the verdict I am about to deliver.
Elements of the offence.
To prove count 1 and count 2 in the alternative, the prosecution must prove beyond reasonable doubt that:
·The accused knowingly maintained a relationship with the complainant. This element requires more than proof alone of the commission of two or more unlawful sexual acts.
·Whilst that relationship was in existence, the accused intentionally committed two or more unlawful sexual acts with, or toward, the complainant.
·At the time the accused committed two or more unlawful sexual acts, he was an adult.
·At the time the accused committed two or more unlawful sexual acts, the complainant was a child.
An unlawful sexual relationship is a relationship in which an adult engages in two or more unlawful sexual acts with a child over any period.
An unlawful sexual act is any act that constitutes or would constitute, (if particulars of the time and place at which the act took place were sufficiently particularised) a sexual offence.
In this case, the unlawful sexual acts alleged are as follows:
·Indecent assault
·Unlawful sexual intercourse (cunnilingus, fellatio and penile/vaginal sexual intercourse)
·Attempted unlawful sexual intercourse (penile/vaginal sexual intercourse)
·Communicating with the intention of procuring a child to engage in sexual activity.
As the trier of fact, I am not required to be satisfied of the particulars of any unlawful sexual act of which I would have to be satisfied if the act were charged as a separate offence, but I must be satisfied as to the general nature or character of those acts.
An indecent assault is an assault accompanied by, or committed in, circumstances of indecency. The prosecution must prove an assault. An assault is the intentional and unlawful application of force to another. If the touching the subject of the particulars (a) and (b) took place in the way alleged by the complainant, this element will be established. The prosecution must prove the assault was accompanied by, or committed in, circumstances of indecency. There must be a sexual connotation. Whether an assault is indecent is for me to determine by reference to prevailing community standards of what is considered indecent. It was not disputed that if I were to find proved any of the acts particularised in (a) and (b) of the charge, I would find proved that the particular act was committed in circumstances of indecency.
It is an offence to have sexual intercourse with a person who is under the age of 17. It is also an offence for a person in a position of authority in relation to a person under the age of 18 years to have sexual intercourse with that person.
Sexual intercourse includes an act of cunnilingus and fellatio. It is also defined as the penetration of a person’s vagina or labia majora by the penis. If no penetration occurs but there is an attempt at penetration that is the offence of attempted unlawful sexual intercourse.
It is a crime to attempt to commit a criminal offence. A criminal attempt is committed if it is proven that the accused had, at all material times, the guilty intent to commit a specified crime and it is proven that at the same time he did an act or acts which are seen to be sufficiently proximate to the commission of the specified crime and not seen to be merely preparatory to it.
Accordingly, to be guilty of attempted unlawful sexual intercourse the prosecution must prove that the accused intended to have sexual intercourse with a person under the age of 17 (or in relation to a person under the age of 18, was in a position of authority) and did an act that was sufficiently proximate to the act of sexual intercourse and not merely preparatory to it.
It is an offence for a person to make a communication with the intention of procuring a child under the age of 17 (or where the person is in a position of authority in relation to a person under the age of 18) to engage in sexual activity.
I cannot return a verdict of guilty unless I am satisfied beyond reasonable doubt that two unlawful sexual acts occurred in the context of the ongoing relationship between the accused and the complainant.
The category of relationships falling within s 50 of the Criminal Law Consolidation Act 1935 can never be closed because relationships vary widely, and the very concept evolves over time with societal changes.[2] The wide range of social and interpersonal relationships falling within the term include:
[2] R v Mann (2020) 135 SASR 457 at [26].
·Familial, legal and de-facto relationships;
·Residential relationships;
·Working relationships;
·Sporting and recreational relationships; and
·Professional relationships.
It is convenient at this point to note that the reason why the prosecution laid count 2 in the alternative is because of the construction placed by it upon the definition of child in s 50 (12) CLCA.
Section 50 (12) provides:
(12) In this section —
“child” means —
(a) a person who is under 17 years of age; or
(b) a person who is under 18 years of age if, during the period of the relationship that is the subject of the alleged unlawful sexual relationship offence, the adult in the relationship is in a position of authority in relation to the person who is under 18 years of age.
The prosecution contends that count 1 and count 2 involve different elements. Accordingly, in count 1 the prosecution contends that it must prove that the complainant was a child by proving that she was under 18 years of age and the accused was in a position of authority in relation to her throughout the period particularised in the charge. By contrast, in count 2, in the alternative, the prosecution says it must prove that the complainant was a child by proving that she was under the age of 17 during the period alleged.
If accepted, the prosecution construction of s 50 (12) creates the curious result in this case that, even if I was satisfied that the accused knowingly maintained a relationship with the complainant during which he committed two or more sexual acts with or towards her when she was under 17 years of age, I would be obliged to acquit him if I was not satisfied that the prosecution had proved he was in a position of authority in relation to her. If not so satisfied, I would then consider the alternative count which requires the prosecution to prove that the complainant was under the age of 17 at the time that the accused committed two or more sexual acts whilst knowingly maintaining a relationship with her.
General directions
The accused elected for trial by Judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v G,[3] whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in a number of authorities: see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; and AK v The State of Western Australia (2008) 232 CLR 438 per Heydon J.
[3] R v G [2015] SASC 186.
The general directions were summarised by Lovell J in R v G. They are as follows:
As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.
I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.
The accused elected not to give evidence. He was under no obligation to give evidence. No adverse inference may be drawn from the fact that he has exercised that right. In particular, the silence of the accused does not constitute any form of admission, may not be used to fill gaps (if any) in the prosecution case and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.[4]
[4] Azzopardi v R (2001) 205 CLR 50 at [51] and R v Weetra (2010) 108 SASR 232 at [67].
Overview of the prosecution case
The prosecution alleges that the accused repeatedly sexually abused the complainant, CP from the age of 16 until she was 18 and continued to engage in sexual activity until she was approximately 18 and a half years of age.
CP was born on 20 September 2000.
On the prosecution case, the accused was the partner of CP’s mother, JP and they had been in a relationship since 2014 but had known JP and her family since 2008. CP came to think of the accused as a father figure and as her step-father. She did not have contact with her biological father at the time of the alleged offending.
On the prosecution case, CP’s family, including her brother, CH became blended with that of the accused. The accused had two sons from a previous relationship, JT and TT. Despite maintaining separate homes until moving in together in 2018, the prosecution alleges that all other aspects of their lives were shared including meals, special occasions, holidays and childcare.
The prosecution alleges that CP’s first sexual interaction with the accused occurred when she was 16 and went to the accused’s home after school because she was going to go shopping with him for a present for her mother’s birthday. The accused led her into his room and began to kiss her on the bed before touching her over her clothing. He then took off some of her clothing before removing his and attempted to put his penis in her vagina. This hurt her, so she pulled away. He then performed cunnilingus upon her, got up, got dressed and acted as if nothing had happened. After the first sexual encounter, sexual activity occurred repeatedly in a very similar manner in the accused’s bedroom.
The sexual activity progressed to penile vaginal intercourse and on occasions took place when there were other people in the house. The accused would routinely ejaculate on CP’s stomach and would clean it up with a hand towel before getting dressed and acting as if nothing had happened. The sexual encounters escalated in frequency, up to a number of times a week when CP had obtained her driver’s licence. The sexual activity then took place in the loungeroom, when the family were away on holidays and when the accused accompanied CP to Adelaide for a calisthenics competition in 2018. The accused caused CP to perform fellatio upon him. As a Christmas present in 2017 the accused gifted CP a sex toy which he later used on her.
Towards the end of 2018, CP, her mother, and brother moved into the accused’s house. The sexual conduct continued, and the accused would come into CP’s room after her mother was asleep and have sex with her. The accused attempted to have sexual intercourse with CP when she had young children sleeping on her bed.
The accused would behave in a sexualised manner towards CP in front of her mother. He would sometimes grab CP and her mother’s breasts simultaneously and make comments comparing them. He would say to CP and her mother, ‘who is giving me a BJ today’ causing arguments between CP and her mother.
CP did not complain to anyone about the accused’s behaviour at the time it was occurring.
A download of CP’s mobile telephone revealed that between November 2017 and January 2019 there were approximately 13,200 text messages exchanged between them. In a number of those messages, the accused would ask CP to come over for ‘cuddles’. On the prosecution case this was the code word the accused used for sexual intercourse. The messages also reveal that when CP rejected the accused’s advances, she was met with anger, ostracism, and manipulation. The accused would also do his best to prevent CP associating with other boys.
A download of the accused’s mobile telephone revealed that in the ten-month period between August 2018 and the accused’s arrest in June 2019 he exchanged almost 30,000 messages with JP which establish that he was in a romantic relationship with JP and behaved as a member of a blended family, was preoccupied with CP and that he and JP exerted influence and control of CP. In the text messages were partial admissions, including a message in which JP told the accused that no normal father touched his daughter’s breasts to which he responded, ‘ok sorry I hurt you, I shouldn’t do that’.
In May 2019, CP disclosed the sexual abuse to a work colleague and friend, KP who in turn encouraged her to disclose it to her mother. This led to an irretrievable breakdown of their relationship and CP then left the family home and made a report to police.
Issues in dispute
The issues in dispute are:
·Has the prosecution proved that the accused performed two or more unlawful sexual acts with or toward the complainant?
·If so, has the prosecution proved that the accused performed two or more unlawful sexual acts with or toward the complainant when she was under 17 years of age and therefore a child as defined in section 50 (12) (a) CLCA?
·If not, has the prosecution proved that the accused performed two or more unlawful sexual acts with or toward the complainant when she was under 18 years of age and at a time when he was in a position of authority, namely when he was the de facto partner of her mother, and therefore a child as defined in s 50 (12) (b) CLCA?
The evidence
I turn now to examine the evidence in more detail.
The following facts were agreed: Exhibit P 13.
Birth dates
1.CP was born on 20 September 2000.
2.PGT was born on 20 May 1979.
Digital Evidence Analysis
3.A Samsung Galaxy S10+ (the Samsung) was seized from PT on 28 June 2019.
4.The Samsung was subsequently entered into the Police Property Management System with exhibit reference 19/B68328-2 and placed into secure storage.
5.On 2 October 2019, content from the Samsung and the Optus SIM card within it was examined and extracted by Digital Evidence Specialist, Tommy Abdalla.
6.The content extracted from the Samsung and the Optus SIM card was copied onto an encrypted disc.
7.Content from this disc is now produced in exhibit P8.
8.On 1 July 2019, CP provided a hard drive to Police that contained a backup of her mobile telephone.
9.Content from the hard drive now produced in exhibit P3.
Integrated Public Number Database checks
10.The telephone number 0421786682 is subscribed to CP.
11.The telephone number 0423292672 is subscribed to PT.
12.The telephone number 0407232770 is subscribed to JP.
The following exhibits were tendered:
P1: Marked-up floor plan of [address redacted] Street Whyalla Norrie pre-2018
P2: Marked-up copy of exhibit P1 post-October 2018
P3: Selection of Text Messages between Complainant and Accused
D4: Google map of distance between [address redacted] Avenue and [address redacted] Street
D5: Photographs of House at [address redacted] Street
D6: One page of text messages for 28 and 29 January 2019 between the accused and complainant
P7: Birth certificate of CP
P8: Extracts from the download of accused’s mobile phone
P9: Comparison table of totals of text messages sent and received from accused’s mobile phone
P10: Race results for the accused and CH for 7 July 2018 Hattah Races
P11: Calisthenics competition competitors entrance list for December 2018
P12: Certificated extract of driver’s licence for CP
P13: Statement of Agreed Facts
The complainant – CP.
The complainant, CP, gave her evidence via closed circuit television accompanied by a court companion[5]. I closed the court during her evidence. Pursuant to s 13 (7) of the Evidence Act 1929 I direct myself that these arrangements do not permit me to draw any inference adverse to the accused and nor do they influence the weight to be given to the complainant’s evidence.
[5] The court companion was not available on 20 May 2022 but the prosecutor advised that the court companion would be available during breaks should CP require her services.
CP was 21 when she gave evidence. A birth certificate was tendered which showed that she was born on 20 September 2000.[6] CP was born in Port Augusta and moved to Whyalla in 2002. She completed year 11 at High School.[7] The following year she attended TAFE. Her mother is JP, her father MH and her brother CH. CH was born in 2003. Her parents separated in 2011 and she did not see much of her father after that.[8] Following the separation CP, JP and CH lived with the accused and his partner and their two sons, JT and TT in Whyalla Norrie. They stayed with the accused and his partner BR for 3 months in 2011 and then moved to a house in Whyalla Playford. The accused and BR separated at some point, but she did not know when that was.[9]
[6] Exhibit P7.
[7] T 91.
[8] T 92.
[9] T 98.
After moving to Whyalla Playford, she believed that her mother and the accused were friends but said they became more romantic over time. She said she realised that they may have been in a romantic relationship after the family had moved into the house in Whyalla Playford. CP described an occasion about three months after they moved in, during school holidays and just before her 12th birthday[10] when she and the accused’s son JT needed help with the remote to the Wii game.[11] She went to her mother’s bedroom and knocked on the door and asked for help and they said, ‘just a minute’ and then ‘okay you can come in’. When she opened the door, her mother was lying on the bed with a blanket over her and the accused was sitting on the other side of the bed with his arm on the pillow.[12] Her mother’s clothes were on the floor. CP was in shock and asked for help with the remote because it was not working, and the accused said he would come out and help.[13]
[10] T 133.
[11] T 99.
[12] T 101-T 102.
[13] T 102-T 103.
CP was asked who the accused was to her, and she said, ‘my stepfather’.[14] She came to see his children as her stepbrothers.[15] CP gave the following evidence in response to questions from me:
[14] T 98, 11.
[15] T 134.
QWhen [the accused] was in a relationship with [BR], did you consider him to be your stepfather.
AIn a little way, yes I did, because my biological father, [M] was not in the picture at that time.
QSo when you said you have always considered him to be your stepfather, is that because your biological father was never in the picture.
AYeah. So I considered [the accused] as a stepfather more when my dad was out of the picture.
QRemind me, when was your father out of the picture.
AAfter he had assaulted my mum so in 2011.[16]
[16] T 140, 1-12.
She first met the accused through her father when she was in primary school and thought of him as a family friend. She would see him at motor-cross or dirt circuit events as both her father and the accused were involved in those sports.
Once CP and her family had moved to the Whyalla Playford address, she would see the accused on his way to work or if he was off work, she would see him. They would go to his house, or he would come to theirs.[17] She would see him multiple times a week. When he visited her house, he would sometimes go into her mother’s room, or they would all have tea at the kitchen table. Sometimes she and her brother would have dinner and her mother would wait for the accused to finish work before she ate with him.[18]
[17] T 103.
[18] T 104.
CP would sometimes go with her mother when she visited the accused at his house if they were having dinner with him and his sons. The accused had his children on his week off. He worked for a steelworks company, working day or night shift.[19]
[19] T 104.
CP’s mother was a childcare worker and undertook family day care and casual or occasional care. Occasional care involved children attending at an occasional care facility from 9.00am to 12 noon. Family day care was undertaken at her mother’s home anywhere from 5.00am until 9.00 or 10.00pm or sometimes overnight care. This usually involved 8 children.[20]
[20] T 105.
When the accused was working, CP’s mother and BR cared for his children.[21] It was mostly when the accused was working that he would come over to their house for dinner. If they went to his house for dinner, he would prepare dinner, or her mother would help him, and they would cook together.[22]
[21] T 107.
[22] T 108.
CP said the accused did not like sleeping over at their house because her mother would get up early to go to gym.[23] However, her mother would sometimes go to the accused’s house after dinner or sometimes in the early hours of the morning.[24]
[23] T 108.
[24] T 109.
When CP was a child and through school and beyond, she did calisthenics and played netball for one year and then coached for 4 or 5 years. Her mother took her to calisthenics training and when she could not, the accused would take her. CP’s brother played football, basketball, and raced motorbikes.[25] The accused would race motorbikes in the senior competition and CH in the junior competition. Her mother would take CH to motorbike races and if she was not available their grandfather would take him.[26] Her mother would take CH to basketball but when CP obtained her provisional licence on her 17th birthday, she would drive him. When she obtained her learner’s permit her mother, her grandfather and her best friend’s father taught her to drive, and the accused would also assist.[27]
[25] T 110.
[26] T 111.
[27] T 112.
After the family moved into Whyalla Playford, birthdays would be celebrated with the accused and BR and their children. After they split up, they would be celebrated with the accused and at Christmas they would see the accused’s children to give them presents and ‘they would go and do their family thing’.[28] When it was her birthday, she would be given presents by her mother, grandparents, aunts, and uncles. When it was the accused’s birthday, she, her mother, and CH would give the accused a present. If it was the birthday of one of her family, she would see the accused.[29] She could not recall the accused attending their house for Mother’s Day. On Father’s Day presents would be given to her grandfather and the accused.[30]
[28] T 112, 37.
[29] T 113.
[30] T 114.
Whilst living at Whyalla Playford, CP and her family would go on holidays to the snow in Victoria and to Queensland. The accused went on one of the trips to the snow, but she could not remember which year that was.[31] There was a spur of the moment getaway at New Year’s in Queensland with the accused, BR and their children. CP could not remember when that was or how old she was.[32]
[31] T 133.
[32] T 134.
A floor plan of the accused’s home in Whyalla Norrie was tendered: Exhibit P1. CP marked the exhibit to identify the occupants of each bedroom and other relevant features.[33]
[33] T 136-T 138.
CP said that she considered the accused as a stepfather ‘more when my dad was out of the picture’ in 2011.[34]
[34] T 140, 1-13.
First sexual encounter with accused
CP said her relationship with the accused changed ‘when he was having sex with me’.[35] CP was able to recall the first time anything of a sexual nature happened with the accused and that it took place when she went to his house to ‘sort out a birthday present for my mum’.[36] She went there during school hours and that day she went to school in the morning. She had arranged to go to the accused’s house so that they could go to the shops to buy a present for her mother’s birthday on 3 February.[37] She was wearing her high school t-shirt and black shorts. She said she was in year 11 and was 16 years of age. She could not recall whether it was days or weeks before her mother’s birthday that she went to the accused’s house. She had discussed with the accused via text message her coming over to his house and then going to the shops to buy a birthday present.[38] BR was no longer living at the address. When she arrived at the accused’s house his son JT was home sick from school and in his bedroom. She saw the accused in the loungeroom, and he said ‘come on, let’s go into my room’[39] and grabbed her by the hand and took her into his bedroom. When they were both inside the accused shut the bedroom door. He told her to hop on his bed and then he ‘hopped on the bed’.[40] She was lying along the bed with her head near the top of the bed and her feet near the end and the accused was sitting over the top of her legs, with one leg either side of hers. She then gave this evidence:
[35] T 139, 16.
[36] T 142, 20-21.
[37] T 142.
[38] T 143.
[39] T 143, 29-30.
[40] T 144, 38.
AI remember he started kissing me.
QWhere did he start kissing you.
AOn the, on my mouth.
QWhere were his hands at this time.
AI can’t remember.
QHow long was he kissing you for.
AI’m not sure.
…
QWhat happened next.
AI remember he was touching – touching me over the top of my school clothes.
QCan I just pause you there. Where was he touching you over the top of your school clothes.
AHe was touching my breasts.
QWas that with one or both hands.
AI can’t remember.
QDid he touch you anywhere else.
AHe touched my vagina as well.
QWhen you say he touched your vagina, was that over the top of your clothes, or underneath your clothes.
AOver the top of my clothes.
QHow was he touching your vagina.
ALike, rubbing – rubbing my vagina over the top of my clothes (DEMONSTRATES).
QWhere were your hands at this point.
AMy hands were at my head (DEMONSTRATES)
…
HER HONOUR: Witness indicates open palms, each hand either side of her head.
…
QAfter the defendant was rubbing your vagina with his hand over the top of your shorts, what happened next.
AI remember after that, my shorts and underwear were taken off – pulled down.
QWho pulled them down.
A[PGT].
QCan you tell us in more detail how he went about doing that.
ASo he – so I was laying on the bed, and he pulled – grabbed my shorts and pulled them down, and then he took them off, and then he did the same thing with my underwear (DEMONSTRATES).
HER HONOUR
QHow was he positioned when he did that.
AHe was over me. so his legs were up – so he was hovering over me, so his legs were either side of my body.
QWas he facing towards you or away from you.
ANo, he was facing – facing me.
XN
QAfter [PGT] removed your shorts and underwear, what happened next.
AI remember my T-shirt and my bra got lifted up over – so – got lifted up so my breasts were exposed.
QWho lifted them up.
A[PGT].
QCan you describe in more detail how your – I think you said shirt – was lifted up.
ASo my shirt was lifted up – up over the top of my bra, and it was sitting just underneath my neck, and then my bra was lifted up as well, so they were both underneath my neck at the time (DEMONSTRATES).
QDid you say anything at this point.
ANo, I was - I was a bit confused.
HER HONOUR
QYou described yourself wearing a shirt, and you said earlier you were in school uniform. Was that a shirt with buttons or a shirt in the style of a T-shirt.
AIt was a polo shirt, so it had three buttons at the top (INDICATES).
QDid that have short arms or long arms.
AThey were short-sleeve (INDICATES).
XN
QWhat was [PGT] wearing.
AI remember him wearing shorts and a T-shirt.
QWhat kind of T-shirt.
AA – a polo – it wasn’t a –
QWas it a T-shirt with buttons.
ANo.
QDid it have any buttons on it.
ANo, it didn’t.
QWas it short-sleeve or long-sleeve.
AShort-sleeve.
QAnd you said he was wearing shorts.
AYes.
QAfter the defendant had pulled up your shirt and your bra, exposing your breasts, what happened after that.
AI remember him removing his shorts and underwear.
QHow did he do that.
AHe – he – from what I remember, he hopped off the bed to take – pull down his shorts and underwear.
QDid anything occur between the time that he had pulled up your shirt to expose your breasts, and then removing his shorts and underwear.
AI can’t remember.
QWhat happened after he’d removed his shorts and underwear.
AHe got back on – on top of me and continued to kiss – kiss me.
QCan I pause you there [CP]. Where did he continue to kiss you.
AHe – on my – on my breasts, and kissing me down my body down towards my vagina (INDICATES).
QCan you tell the court the position of [PGT’s] body when he was doing that.
AHe was laying on top of me, so his face was – his face was – I could see the top of his head (INDICATES).
QWhat about the position of your body.
AI was still laying on – on the bed with my head on the pillows.
QTell us about the position of your legs at this time.
AThey were stretched out along – along the bed…so I was just lying straight with my – laying straight along the bed.
QWere your legs together or open.
AI can’t remember.
QWhat happened after [PGT] was kissing you, your breasts and down your body.
AI remember he was kissing around my vagina and he then started, then I remember he was – the next thing I remember was he was licking me out and had one hand on my breast holding onto it.
QWhen you say ‘licking me out’ where was he licking you out.
AMy vagina, so his mouth – his head was in between my legs and his tongue was in my vagina.
QYou said that his head was between your legs.
AYes.
QPrior to this point you indicated that your legs I believe were closed, did the position of your legs change at any point.
AFrom what I can remember he had spread my legs out.
QAfter he spread your legs out what did he do after that.
AHe put his head between my legs and his mouth at my vagina and started licking me out.
…
QDid the defendant touch you anywhere else after he was kissing your breasts and down your body but before he started licking your vagina.
AI can’t remember.
QWhen he was licking your vagina how did it feel.
AI didn’t like it. It felt uncomfortable and unfamiliar.
QWhy did it feel unfamiliar.
ABecause something like that had never happened before.[41]
[41] Permission was not sought pursuant to section 34L of the Evidence Act 1929 to ask this question. At this point in the trial counsel agreed that I should disregard the answer, but the prosecutor said she would give some thought to whether to make an application for permission (retrospectively).
…
QCan you remind me when he was licking your vagina where his hands were.
AI remember his hands on my breasts.
QSo were both hands on your breasts or the one hand.
AI can’t remember.
QDid you react at all to him licking your vagina.
AI just – I just remember being confused.
…
QAt any time throughout this interaction did you say anything to [PGT].
AI remember saying something to him about [JT], because [JT] was home.
QDo you recall what you said.
AI remember saying something like ‘what happens, what about [JT]’.
HER HONOUR
QWhere was [JT] as far as you knew at that time.
AHe was in his bedroom as far as I knew.
XN
QWhat happened after the defendant was licking your vagina.
AI remember after he had finished I remember him trying to put his penis in my vagina.
QHow did he do that.
AI remember him being – him grabbing my legs and pulling me closer to him as he was like kneeling on his knees and him trying to put his penis in my vagina.
QI just want to break that down a bit, you said that the defendant or [PGT] was kneeling on his knees, can you describe to us in a little more detail where he was kneeling on his knees in relation to your body.
AIn between my legs, so my legs were spread out and he was kneeling in between me.
QCorrect me if I’m paraphrasing here, but you said he tried to put his penis in your vagina.
AYes.
QHow did he do that.
AI remember him pulling me closer to him, he got bent over and he was holding his penis to try and put it into my vagina.
QWhat happened next.
AI remember I didn’t like it so I was trying to pull away –
QHow did you – sorry you go on.
AI remember trying to pull away from him because I didn’t like it.
QHow did you pull away from him.
AI remember – because my hands were up by my head I remember just like grabbing onto just – grabbing onto the bed and pulling myself away.
QWhat did the defendant do when you were pulling yourself away.
AI remember him trying – trying to do it again.
QWhen you say ‘do it again’ what do you mean.
APut his penis in my vagina.
QAt any time did his penis touch your vagina.
AI remember he – his penis didn’t go all the way inside of my vagina because I kept trying to pull away.
HER HONOUR
QWhen you said you were grabbing onto the bed, what part of the bed were you grabbing onto.
AThe – I can’t remember.
XN
QDid you say anything to the defendant at the point that he was trying to put his penis into your vagina.
AI can’t remember.
QHow did it feel when he was trying to put his penis in your vagina.
AUncomfortable.
…
QAfter that occurred, what happened next.
AI remember him getting up off his bed and hopped off his bed, grabbing his shorts and his underwear and opening his bedroom door, closing it behind him and going into the bathroom.
HER HONOUR
QWhen you said his penis did not go all the way in, what did you mean by that.
AIt didn’t go all the way inside my vagina.
QDid it go any part, inside your vagina.
AI remember him attempting and I kept pulling away.
XN
QDid the defendant say anything when he was attempting to put his penis inside your vagina.
AI remember him saying, ‘It’s okay, it’s only practice, it’s okay’.
QYou said at some point he got up and got his shorts and underwear, at what point did he get up and gets his shorts and underwear.
AAfter he had finished attempting to put his penis inside my vagina because I kept pulling away.
QHow did he get off the bed.
AHe just hopped off the end of the bed and picked up his underwear and shorts and left the room.
QWhat did you do after he left the room.
AI remember I was very confused, I was very confused with what just happened and I remember finding – putting my bra and shirt back on and putting my underwear and shorts back on.
HER HONOUR
QWhen [PGT] picked up his underwear and shorts and left the room, did he leave the room holding his underwear and shorts or did he put them on before he left the room.
AI can’t remember.
CP said the accused came back acting like nothing had happened and then they left his room. He told JT they were going to the shops and then they left in the car.[42] CP thought it was odd that the accused was acting as if nothing had happened when he had just had sex with her. After they had been to the shops they went back to his house, and she then went to her mother’s work.[43]
[42] T 155.
[43] T 157.
Grooming behaviour
CP was asked if the accused’s behaviour towards her had changed prior to the first sexual encounter. She said he would tell her that he liked what she was wearing.[44] She could only recall one occasion when this occurred. She was wearing a skirt and a strapless top to a Christmas work show at his house. She was at the show with her mother. When the accused commented on the clothing, she wore to the Christmas show she thought it was ‘nice because he was a father figure to me’.[45]
[44] T 157.
[45] T 192, 38, T 193, 1.
CP also said that the accused ‘would want me to drink alcohol’.[46] This occurred at the Christmas work show, on Christmas day and on Australia day. She explained that the accused was talking to her mother about letting her have some alcohol because she was 16. When the accused said it was ‘only going to be a couple and its only Cruisers’[47] her mother said okay. CP said her mother ‘eventually’ allowed her to have them.[48]
[46] T 158, 14.
[47] T 158, 25-26.
[48] T 159.
CP could not recall any other way in which the accused’s behaviour had changed towards her before the first sexual encounter. CP said the first sexual encounter occurred four or five days after Australia Day.[49]
[49] T 161.
Ongoing sexual encounters
CP said that there were further sexual encounters with the accused, but she could not say how long afterwards. They took place in the accused’s bedroom when her mother had dropped her off to the accused’s house to arrange dinner and then left to drop her family day care children home.[50] Her mother was gone between half an hour and forty-five minutes.[51] At this time, CP had her learner’s permit and was not able to drive herself to the accused’s home.[52]
[50] T 160.
[51] T 161.
[52] T 163.
The sexual encounters did not occur every time she was dropped off at the accused’s home, but they always occurred in a similar way. CP described them as follows:
AJust that I would like, go inside his house and if he wasn’t in the loungeroom and sometimes [TT] would be in the lounge room, I would ask [TT] where his dad is and he would say ‘He’s in the bedroom’. And I would go into his bedroom and ask [the accused] about dinner as that’s why I was there, and he would say something about having a quick cuddle before dinner.
…
QWhen the defendant said, ‘quick cuddle’, what did you understand that to mean.
AI – in the beginning, I just thought it meant like a hug, in the beginning.
QWhat about after the beginning.
AAfter the beginning he – a ‘quick cuddle’ would mean that he would have sex with me.
HER HONOUR
Q[CP] you said in the beginning you thought a ‘quick cuddle’ meant a hug. What did you mean by in the beginning.
ABecause cuddles to me is like a hug.
QMy question was more about the words you used ‘in the beginning’ you thought a ‘quick cuddle’ meant a hug. What was the beginning, that is what part of this was the beginning.
AAfter he first had sex with me I didn’t really know what he meant by cuddles in the beginning.
QWas the term ‘quick cuddle’ something that was said on the first occasion that something happened.
ANo. Not that I can remember.[53]
[53] T 165, 5-34.
CP said that after the accused would say ‘let’s have a quick cuddle’ he would have sex with her, and it happened the same way every time.[54] CP described herself getting on the bed, the accused on top of her kissing her and removing her clothes and his clothes and then putting or trying to put his penis in her vagina. She could not recall the first time that he put his penis in her vagina. She could not recall how long after the first sexual encounter it was that he put his penis into her vagina for the first time or whether it was before or after her seventeenth birthday. The only thing CP could remember about the occasion when the accused put his penis inside her vagina was that it hurt.[55] The occasions when the accused attempted to put his penis in her vagina were before her seventeenth birthday.[56]
[54] T 166.
[55] T 167.
[56] T 168.
CP said the accused would ejaculate on her belly on these occasions. The accused would then grab a towel or a dirty T-shirt from the floor and wipe it off. He would then grab his clothes and go to the bathroom. He would leave the room in the nude holding his clothes. CP was not sure how long it was between going into the bedroom and the accused leaving for the bathroom.[57] The door was always shut, and the lights were off. The bedroom door was a sliding door, and she could see light coming from underneath the gap. The only thing that CP could recall the accused saying was ‘it’s okay, don’t worry it’s only practice’. He would then act as if nothing had happened. On some of these occasions there were other people in the house. On other occasions if a car drove past the accused would pull the window blind towards him and look out the window to see if there was anyone in the driveway and if not, they would go back to having sex.[58] If there was someone in the driveway the accused would say ‘quickly get dressed your mum’s here’ and he would grab his clothes and go into bathroom and when her mother came inside he would walk out of the bathroom.[59]
[57] T 168.
[58] T 169.
[59] T 169-T 170.
CP said she never slept over at the accused’s house on the occasions she went there for dinner. She could not recall being at his house on her own on the weekends.[60]
[60] T 172.
CP said that the frequency of the sexual encounters increased when she obtained her provisional driver’s licence on her seventeenth birthday. Once she had her provisional driver’s licence, she would do school pick-ups and drop-offs for her brother CH, JT and TT as well as her mother’s family day care children and she would do the grocery shopping.[61] She would sometimes go to the Woolworths near the accused’s house because it was near her mother’s work or if she was taking food to the accused’s house for dinner. CP was involved in netball trainings on Wednesday afternoons in netball season and on occasions would drive straight to the accused’s house for dinner.[62] The accused and her mother would be present, and sometimes the accused’s children but there were times when she arrived after netball and her mother was still out dropping the day care children home.[63] Most of the time she would have sex with the accused in his bedroom, but sometimes sexual encounters occurred in the loungeroom.[64] CP described those encounters:
[61] T 184.
[62] T 186.
[63] T 187.
[64] T 202.
The loungeroom, he would – but I would be sitting on the couch, and he would be kneeling, he would be kneeling on the, on the floor in between my legs. And he would pull down my pants and underwear, down to my ankle, and he would pull me so I would be sitting on the edge of the couch. And he would, he would lick, lick – put his head between my legs and he would start to lick me out…he would put his tongue in my vagina.[65]
[65] T 202, 32-38, T 203, 1, 3.
CP said this occurred when she was 17 and more than once but no one was home at the time. She then said that some of these occasions occurred before they moved into the accused’s house in 2018 and took place when her mother told her to go over to wake up the accused so he could go to work.[66]
[66] T 203.
CP said the accused would also ‘get me to suck on his penis’[67]and this would occur after he had sex with her but before he ejaculated. She did not recall how old she was when she first sucked his penis but then said this occurred before she turned 18 and ‘nearly every time’ he tried to have sex with her. The one time that she recalled that it did not happen was when he tried to have sex with her in the work shed. CP described the accused grabbing her head and putting it down so she would be sucking his penis.[68] She did not like it and would try to pull her head up, but he kept pulling it down saying, ‘it’s okay, it’s only practice’. CP said there were also times that the accused would lie on top of her when they were both naked and he would put his penis in her mouth, and he would put his head between her legs and lick her vagina while she was sucking his penis.[69] This occurred in the accused’s bedroom before and after she moved in with him. She was 17 years old when this first happened.[70] She then said that the mutual oral sex occurred more frequently when she obtained her provisional licence before moving into the accused’s house.[71]
[67] T 204, 6.
[68] T 204.
[69] T 205.
[70] T 206.
[71] T 207.
CP did not have any sexual interaction with the accused when she was menstruating, about one week each month. She started menstruating in year 8. She felt free during this time because she knew that she would not be having sex with the accused.[72] The accused would notice her mood change when she was menstruating and would ask her if she was ‘on her period’.[73] He would then ask her when her period would finish or whether it had finished. She could not recall when she started having conversations with the accused about menstruating.[74]
[72] T 208.
[73] T 209.
[74] T 210.
CP said her mother enforced a curfew and would always tell her what to do and when to be home. After she obtained her provisional licence, she went to the accused’s house more often because her mother would tell her to go there and spend time with him or wake him up if he had to work night shift. She said she would go to the accused’s house ‘most days’[75]and that was usually by herself.
[75] T 188, 37.
CP did not tell her mother about her sexual relationship with the accused until she moved out of home on Mother’s Day 2019.
CP said that her mother had access to her mobile phone and would look at her social media. CP began sending text messages to the accused in 2017 and had sent messages to him regarding getting her mother a present before her birthday in February 2017. The frequency with which they sent each other messages increased over time. She initially thought it was normal because she looked up to him as a father figure. CP said the code word ‘cuddle’ was used in their text messages. Initially she did not know what this meant but she worked out that when the accused asked for cuddles this meant he was going to have sex with her.
CP had a boyfriend when she was 16, OP but he lived interstate. She was friends with a boy, TG, in 2017. The accused would ask her who she was talking to on the telephone and make comments such as ‘you’re always talking to [TG], you’re always messaging him’ and he seemed to be jealous that she was paying all of her attention to TG.
CP, her mother and brother moved in with the accused in October 2018. She was 18 years of age. CP marked a copy of P1 to indicate the bedrooms occupied by her and her mother and brother and various features of the house and the shed in the back yard: Exhibit P2.
CP said that she continued to have a sexual relationship with the accused after her family moved in with him and sexual activity would occur nearly every day and mostly in his bedroom but sometimes in her bedroom and once in the shed where the motorbikes were stored. The sexual activity in his bedroom consisted of penile/vaginal intercourse, fellatio, cunnilingus, and he once used a vibrator on her. It usually occurred after she had finished work at 3.00pm. If she did not have to pick up her brother or the accused’s children, she would be home by 3.10pm, otherwise 3.30pm. Penile/vaginal sexual activity occurred in her bedroom at night after her mother had gone to sleep.
The sexual encounter in the shed occurred when she arrived home from work and went out to the shed when she could not find the accused in the house. The roller door to the shed was up halfway (hip-height) so she assumed he was working on the motorbikes. Her mother was out doing school pick-ups and she did not know where her brother or the accused’s children were. After she told the accused she was home from work, he asked for a quick cuddle before everyone got home, grabbed her hand and leaned her up against one of the motorbikes, pulled down her pants and underwear, pulled down his work pants and tried to put his penis in her vagina. Her breasts were leaning on the seat of a motorbike which was on a stand. His penis was not going into her vagina because it was an awkward position. CP heard the back door to the laundry open and the accused stopped and pulled up his pants to see who was there. CP went back inside, and the accused went back inside the shed and acted as if nothing had happened. CP marked on P2 the position of the motorbike. If someone had opened the roller door the motorbike would have been visible.
CP said that the only occasions that she would refuse to have sex with the accused was when she had her period. After moving in with the accused CP would sometimes share her bed with her godson T, aged 2 or S, aged 8, one of her mother’s day care children. When sleeping over, T or S would sleep on the bed closest to the wall, so as not to fall out of the bed. On those occasions, the accused would come into her bedroom after her mother was asleep and try to have sex with her. CP would say ‘what about if [S] or [T] wakes up’[76] and the accused would respond, ‘It’s fine. They won’t’ but CP would say no, and he would go back to his room.[77] The only other occasion when CP said no to having sex with the accused was in March or April 2019 around 3.30pm when she was getting ready to go to Adelaide for a competition. The accused had come into her room and moved her onto the bed and asked for a quick cuddle and she said no, and he picked up her belongings and stormed off to put them in the car.
[76] T 230, 7.
[77] T 230, 11-12.
As CP got older, she started to realise that what the accused was doing was wrong, but she would not say no to his advances because if she did he would get mad at her and then mad at everyone else.
The accused made sexual comments to CP in front of others. CP described the accused saying in front of her mother, ‘who’s giving me a BJ tonight or today’. Sometimes he would use the acronym ‘BJ’ other times he would say ‘blow job.[78] After saying this, the accused would sometimes compare her breasts with her mother’s by grabbing one of CP’s breasts and one of her mother’s breasts and saying CP’s were better because they were not saggy. Her mother would respond by saying ‘[PGT], stop it, don’t do that, she’s your daughter’.[79] The ‘BJ’ and breast comments were made after CP moved in with the accused and when she was 18 years of age.
[78] T 233, 8, 13-14.
[79] T 235, 17-18.
A selection of text messages between CP and the accused were tendered: P3. There are 3663 text messages in P3 between 4 November 2017 and 1 January 2019. CP said that there were no text messages prior to November 2017 because earlier messages were lost when she downloaded them for the police. CP was taken to several text messages in P3. CP said that when she sent messages to the accused telling him she missed him and did want cuddles with him[80] she was referring to sex when she used the word ‘cuddles’. However, CP said she did not want to have sex with the accused, but she wanted to reassure him and make him happy. This would avoid him getting mad at her and then everyone else. CP said every reference to cuddles was a reference to sex. When she messaged the accused telling him she wanted him to touch her, she said that because ‘that’s what he wanted’.[81] She could not recall a time when she wanted to have sex with the accused.[82] CP said that when she messaged the accused telling him she loved him she meant that, but she loved him as a father.
[80] For example, messages at line 2047 and 2078 in P3.
[81] Message 1020, 12 January 2018: P3.
[82] T 252, 38.
CP agreed that in relation to message 929 on 26 December 2017, in which she wrote, ‘Morning [PGT], hope you are feeling okay. Thanks for letting me drink last night’ she had asked her mother if she could drink alcohol and after her mother discussed it with the accused, he let her drink alcohol. In a message on 6 April 2018, responding to a message from the accused in which he said she would need to try a lot harder if she wanted a special relationship with him, CP wrote, ‘I’ve told you this before. I want a relationship with you, [PGT]’.[83] CP said that the relationship she was referring to was a ‘father-daughter’ relationship. She then gave this evidence in response to questions from me:
[83] T 253. Message 1684, 6 April 2018: P3.
QAt the time you sent the message, ‘I want a relationship with you, [PGT]’ did you consider that you were in a father-daughter relationship at that point.
AI always had considered that I was in a father-daughter relationship with [PGT].
QSo when you said ‘I want a relationship with you [PGT]’ you were referring to wanting a father-daughter relationship with him.
AFrom what I can remember, yes.[84]
[84] T 253, 8-16.
CP was taken to messages on 21 November 2017 in which the accused referred to a Christmas present he had found for her and told her to ask her mother about it. The accused said, ‘use it twice a week min and UL be a different girl LOL’.[85]CP said the present was a pink vibrating dildo and she asked her mother about it and she either told her it was a vibrating dildo or showed her a picture of it. At Christmas, her mother and the accused gave it to her as a ‘joke kind of Christmas present because it was given to me in my mum’s room with me, my mum and [PGT], and then I never took it into my room. It stayed in my mum’s room. I never used it’.[86]
[85] T 256.
[86] T 257, 38; T 258, 1-3.
CP said the dildo was used on her once after they moved into the accused’s home in October 2018. On an occasion when he was having sex with CP, he got it out of the bedside table drawer and turned it on and said ‘you will like it’ while rubbing against her vagina.[87] She could not recall if it was only used on the outside of her vagina, or it went inside.[88]
[87] T 259.
[88] T 260.
CP said that messages on 16 April 2018 refer to an occasion when the accused took her to Adelaide to meet three girls and their mothers from the television show ‘Dance Mums’.[89] They stayed in a hotel in Adelaide.[90] After having dinner at McDonalds, the accused tried to have sex with her while she was lying on the bed on her stomach in her pyjamas.[91] She could not recall him putting his penis in her vagina because she was pulling away as it was an unfamiliar position, and it was hurting her. The accused rolled her over and suggested they have a shower together.[92] She said no, and he got mad and stormed off into the bathroom. When he returned, he was messaging her mother and there was something on television.[93] CP said this incident happened after the occasion when the accused tried to have sex with her from behind in the shed.[94]
[89] T 260.
[90] T 261.
[91] T 262.
[92] T 264.
[93] T 265.
[94] T 264.
CP gave evidence about a trip to Mildura for the purpose of a Hattah race. She went with her mother, brother, JT, TT and two of her mother’s day care children.[95] They stayed at a caravan park in Mildura in 5 swags. She shared a swag with one of the day care children a 17-year-old boy with Down Syndrome, P.[96] On the first day, her mother took her brother to visit friends. Whilst she was watching a movie with P, she received a message from the accused asking her what she was doing.[97] She asked him what he wanted and then she got into his swag and he said he wanted a cuddle. She then lay down and he knelt on top of her and had sex with her. It was lunchtime. He ejaculated on her belly,[98] and he cleaned it up with her mother’s pyjama top. She left and went back to her swag and the accused acted as if nothing had happened. There were other people in the caravan park, including those participating in the race who were in cabins near their campsite.[99]
[95] T 267.
[96] T 269-270.
[97] T 270.
[98] T 271.
[99] T 272.
Initial complaint
In May 2019, CP told a work colleague, KP, about her sexual relationship with the accused.[100] Sometime before telling her about the relationship, possibly a couple of months prior, CP had shown her a text message the accused had sent her. On a Friday night in May 2019 when her mother and the accused had gone away for the weekend, CP spoke with KP over the telephone.[101] Later that night KP picked her up from the accused’s house and they went for a drive. CP told KP a bit more about what was happening, including the comments about what she was wearing at the Christmas show, but did not tell her everything straightaway.[102]
[100] T 273.
[101] T 274.
[102] T 275.
KP told her that the accused was grooming her and explained what that meant because CP did not understand the term. KP explained that flirtatious comments were grooming behaviour.[103]
[103] T 275.
CP and KP then have a further conversation over Snapchat. CP went to KP’s house on the Saturday and told her more about what had happened. She told her the accused had sex with her but could not recall going into any more detail. KP said if she needed a place to stay, she could stay with KP. CP then collected her passport, birth certificate and a set of work clothes and went over on Sunday, which was Mother’s Day. She moved out of the accused’s house that day.[104]
[104] T 275-276.
Cross-examination
CP agreed that she first met the accused because he was friends with her father.[105] After her mother and father separated, her mother remained friends with the accused and B and the two families would have birthdays and Christmas together.[106]
[105] T 277.
[106] T 277-278.
CP agreed that her mother and the accused started a proper romantic relationship in mid-2017.[107]
[107] T 278.
CP was shown a google map showing the accused’s house and her house: D4. She agreed that the two homes were about 2 or 3 kilometres apart and only a couple of minutes’ drive by car but half an hour walk.[108]
[108] T 279.
CP was reminded of her evidence that after shopping with the accused for a birthday present for her mother in 2017 she went back to the accused’s house and then to her mother’s work. CP said her mother worked on Davison Street which was closer to the accused’s house than her house.[109] CP marked with an X on D4 the location of her mother’s work.[110]
[109] T 279.
[110] T 280.
CP agreed that if the living room door was open in the accused’s house there was a direct line of sight to the bathroom depending on the position of a person in the living room.[111] CP agreed that the door to the accused’s bedroom, which was a sliding door, was broken before they moved into his house. She said most of the doors were broken.[112] She agreed that the bedroom door was stuck so that it was always a quarter shut and three quarters open. However, she said ‘if you wiggled it enough, you can shut it’.[113] It was put to her that this was wrong, the door could not be shut and was always three quarters open and she disagreed.[114] When asked if it was noisy wiggling the door to shut it or took a lot of muscle, CP said she was unsure. She had never done it herself. The accused fixed all the doors before the family moved into his house because the house needed to be up to standard for her mother’s family day care.[115]
[111] T 280.
[112] T 282.
[113] T 282, 28.
[114] T 282.
[115] T 283.
CP agreed that she had given evidence that when the accused was having sex with her in the bedroom, he would peek out the window to see the driveway if he heard a car coming.[116] She agreed that there was no line of sight from the window to the driveway but said ‘you can from his bedroom window, you can see if a car is pulling into the driveway’.[117] CP was shown photographs of the accused house which were then tendered: D 5.[118] She said she was unsure if a car could be seen pulling into the driveway from the accused’s bedroom window from both directions of travel.[119]
[116] T 284.
[117] T 285, 5-7.
[118] T 285.
[119] T 287.
It was put to CP that no sexual contact with the accused occurred before she turned 18. She said no.[120]
[120] T 288.
CP confirmed her evidence of the first sexual encounter and that this occurred in 2017 just after Australia Day and before her mother’s birthday and she was 16 years old.[121] CP agreed that she went to school in the beginning of 2018 for TAFE but only one day a week, on a Wednesday and she wore her uniform to school.[122] CP agreed that she had only had to go to school in the morning that day and went to the accused’s house around 10.45am.[123] She said that during the sexual encounter the bedroom door was closed but she did not recall the accused having any trouble closing it or wiggling it in the way she had explained.[124]
[121] T 288.
[122] T 289.
[123] T 297.
[124] T 297-298.
CP was reminded of her evidence that the accused had his legs either side of her body when he removed her shorts and underwear. They were taken all the way off. She said his legs were in between her hips and her knees.[125] She was then asked if he stayed in that position whilst removing her underwear and shorts and she said he was ‘moving down a little bit as he was taking them off…’[126] By the time her shorts and underwear came off, the accused’s knees were near her ankles, and she moved her knees up so he could remove them.[127] She agreed that she was intending to make it easier for him to remove her underwear and shorts.[128] She then said that he got off the bed to remove his pants and underwear.[129] CP confirmed that the sequence of events after this was that the accused licked her vagina and then tried to put his penis in her vagina.[130] She agreed that in her statement to police on 26 June 2019 she said that the accused tried to put his penis in her vagina and then put his tongue in her vagina. She said she was unsure of which way it happened.[131]
[125] T 298.
[126] T 299, 4-6.
[127] T 301.
[128] T 302.
[129] T 301.
[130] T 301.
[131] T 302.
CP agreed that in her statement 26 June 2019 she said, ‘he then stopped licking me and touching me and got up, kissed me, grabbed his pants and went to wash his face’.[132] She said she was unsure as to whether he put them on before he left the bedroom or afterwards. She agreed that for the accused to walk to the bathroom he would be walking through an open area of the house and could be seen from the living room or JT’s room.[133]
[132] T 303, 30-32.
[133] T 304.
CP said that she did not have her provisional licence at this time but had her learner’s permit. She never drove a vehicle on her learner’s permit without an adult in the car. She agreed that she must have walked to her mother’s work.[134] She agreed that in her June 2019 statement to police she said, ‘He just carried on like nothing had happened, and we went to the shops, got mum a present, and I dropped him home, and I went home and saw mum’.[135] CP agreed that she would not have dropped the accused home and driven to her mother’s work when she was 16.[136] When asked why she told police in June 2019, she had dropped him home she said, ‘I’m unsure’.[137] It was then put to her that the day she went to the accused’s house and then went shopping for a birthday present for her mother was Monday 29 January 2018. She said, ‘I can’t remember’.[138] CP was then shown text messages between her and the accused for 28 and 29 January 2018: D6. Those messages were as follows:
[134] T 305.
[135] T 306, 1-4.
[136] T 306.
[137] T 306, 19.
[138] T 306, 25.
Monday, Jan 29 2018 13:13 61421786682 Okay thanks xx Monday, Jan 29 2018 13:13 61423292672 Hey if u need to borrow money for your ring or need money for it incase it comes next week remind me by Thursday Monday, Jan 29 2018 12:54 61421786682 Yeah hhaha Monday, Jan 29 2018 12:54 61423292672 Haha hes bad as us with McDonald’s Monday, Jan 29 2018 12:53 61421786682 Lol Monday, Jan 29 2018 12:53 61421786682 Just going to get some envelope and [TT] said r we going to McDonald’s Monday, Jan 29 2018 10:53 61423292672 Are u coming in for a sec or not Sunday, Jan 28 2018 22:20 61423292672 Love u xx Sunday, Jan 28 2018 22:15 61421786682 Night love u xx Sunday, Jan 28 2018 21:20 61423292672 Xx Sunday, Jan 28 2018 21:19 61421786682 Okay xx Sunday, Jan 28 2018 21:19 61423292672 Ok yeah il wait at home for u pick me up Sunday, Jan 28 2018 12:17 61421786682 About 10.45 Sunday, Jan 28 2018 21:17 61423292672 What time Sunday, Jan 28 2018 21:15 61421786682 Thanks did u want me to pick u up when I finish school Sunday, Jan 28 2018 21:14 61423292672 Yes u can Sunday, Jan 28 2018 21:13 61421786682 Am I allowed to come shopping with u tomorrow Sunday, Jan 28 2018 20:56 61421786682 But I do want to spend time with u Sunday, Jan 28 2018 20:56 61423292672 Well love u just wish u wanted to spend more time with me Sunday, Jan 28 2018 20:11 61421786682 I want to be around u [PGT] so stop thinking that I don’t Sunday, Jan 28 2018 20:10 61423292672 I love u, love spending time with u but u don’t wanna be around me now Sunday, Jan 28 2018 20:10 61421786682 I do [PGT] Sunday, Jan 28 2018 20:09 61423292672 Just wish u did Sunday, Jan 28 2018 19:58 61421786682 I want to be close again Sunday, Jan 28 2018 19:58 61423292672 Love u Sunday, Jan 28 2018 19:54 61421786682 I do love u very much Sunday, Jan 28 2018 19:54 61421786682 I’m not pretending [PGT] I just wish u knew that [PGT] Sunday, Jan 28 2018 19:53 61423292672 Please [CP] stop saying u do because u don’t i see that and it hurts when u pretend u do Sunday, Jan 28 2018 19:53 61423292672 Please [CP] stop saying u do because u don’t i see that and it hurts when u pretend u do Sunday, Jan 28 2018 19:52 61421786682 I know u do [PGT] i just want us to be close again Sunday, Jan 28 2018 19:52 61423292672 And i loved u too much Sunday, Jan 28 2018 19:49 61421786682 Hey [PGT] I love u very much Sunday, Jan 28 2018 19:15 61421786682 And I’m not trying to be distant Sunday, Jan 28 2018 19:15 61421786682 No I told u already I want to be close again Sunday, Jan 28 2018 19:14 61423292672 But after i get your layby off then what go back to how u was last week oh hey [PGT] or bye [PGT] see u when i see u Sunday, Jan 28 2018 19:13 61421786682 What want to be close again Sunday, Jan 28 2018 19:13 61423292672 I sure did [CP] Sunday, Jan 28 2018 19:12 61421786682 What so u don’t want us to be close again caue that’s what I want Sunday, Jan 28 2018 19:11 61423292672 I don’t think so tho [CP] and its fine tho Sunday, Jan 28 2018 19:02 61421786682 I don’t want that to happen I’m trying not to be distant I want things to go back to the way they used to be [PGT] I want us to close again Sunday, Jan 28 2018 19:01 61423292672 All good now [CP] I tried u grew distant again so lets just do it your way im 100% ok with that just like i said things be alittle different have a good night Sunday, Jan 28 2018 18:28 61421786682 No that’s not what I want to happen I really want to come shopping with u tomorrow [PGT] xx and I love u very much xx Sunday, Jan 28 2018 18:27 61423292672 All good its how u wanna be so be happy xx have a good one might see u tomorrow night or somethings Sunday, Jan 28 2018 18:24 61421786682 I do want u things to do with u [PGT] Sunday, Jan 28 2018 18:21 61423292672 Barley wanted anything to do with me for days now but im cool with that distant it is Sunday, Jan 28 2018 18:19 61421786682 But I want to come with u tomorrow Sunday, Jan 28 2018 18:16 61423292672 And im ok tomorrow thanks il go shopping my self Sunday, Jan 28 2018 15:01 61423292672 Ok Sunday, Jan 28 2018 14:31 61421786682 Leaving’s Rory’s now Sunday, Jan 28 2018 11:16 61421786682 Rory’s house Sunday, Jan 28 2018 11:15 61421786682 Leaving to go to Sarah’s now Sunday, Jan 28 2018 10:58 61421786682 Thought we were going to the shops together tomorrow Sunday, Jan 28 2018 10:58 61423292672 Might see u before u go to the river maybe xx Sunday, Jan 28 2018 10:57 61421786682 Xx Sunday, Jan 28 2018 10:57 61423292672 Was ok Sunday, Jan 28 2018 10:24 61421786682 Love u too how was work Sunday, Jan 28 2018 10:24 61423292672 Morning love u Sunday, Jan 28 2018 10:23 61421786682 Morning
After being shown those messages, CP agreed that on Sunday, between Australia Day and her mother’s birthday in 2018 she and the accused were making a plan to go to the shops the next day and that she would pick him up when she finished school around 10.45am.[139]
[139] T 308.
CP agreed that the time she left school early and went to the accused’s house to get a present for her mother was in 2018 and not 2017. She maintained that this was the very first time there was sexual contact between her and the accused.[140] She then gave this evidence:
[140] T 309.
QSo you agree or is it possible that the first ever time was when you were actually 17 years old and not when you’re 16 years old.
ACould be possible.[141]
[141] T 309, 26-29.
CP was asked about the occasion she went into her mother’s bedroom to ask for help with the Wii remote. It was put to her that when she went into the bedroom the accused was sitting on the bed completely naked. She said ‘no, he had a shirt on. I said he had a shirt on’.[142] She was then reminded that she said in evidence in chief, ‘…I also seen [PGT’S] shorts and underwear on the floor, and he had no t-shirt on’. She said that was not what she remembered saying in evidence. It was then put to CP that she could see his penis, but she said she could not recall.[143] CP agreed that she had given a number of statements to the police, the first of which was in June 2019. She agreed that in an affidavit dated 17 March 2020 she said ‘I saw mum’s clothes on the floor, and she was in bed being covered by the blanket and [PGT] was standing and was only wearing a T-shirt and no pants. I quickly walked out’.[144] She said she was wrong when she described the accused as standing.[145]
[142] T 290, 4.
[143] T 290-291.
[144] T 293, 1-4.
[145] T 293.
CP agreed that the sexual interaction with the accused in a hotel room in Adelaide was the only time this had happened in Adelaide and was quite different from all the other times because they were in a different place. However, she said she did not have a better recollection of it because it was different.[146] CP agreed that in her first statement to police on 26 June 2019 she made no mention of the sexual encounter in a hotel room in Adelaide.[147]
[146] T 310.
[147] T 310-311.
CP agreed that the first time she spoke to a police officer was a couple of days before she signed her statement on 26 June 2019.[148] She then gave this evidence:
[148] T 311.
QI just want to ask you about that. Did you tell that police officer that there was nothing physical between you and [PGT] until September 2017 or maybe a few months later.
ANot that I can remember. At the time that I first spoke to the police officer a couple of days before I gave my first statement I was unsure of what I could say as that time was a very messy time for myself.[149]
[149] T 311, 7-14.
CP said that the swag she was sharing with P in the caravan park in Mildura was about 5 to 10 metres from the accused’s swag. CP agreed that there were no messages in P3 on 7 July 2018 from the accused asking her to come to his swag but said it was a message over Snapchat.[150] I then asked her the following questions:
[150] T 314.
QCan you go to entry 2250, Monday, 9 July.
AYes.
QAnd there’s a message from [PGT] to you at 1346 ‘What u doing’ and then you said ‘watching movie’ and then he said ‘in swag’ and you said ‘yes’ and then at 1939 on the same day, so 7.39pm you said ‘Come here please’.
AYes.
QDo you remember anything about that day and what you were sending those messages about.
ANo. The part about him messaging me what I was doing that was when my mum was dropping my brother off to his friends in Mildura and then after he – after I had said that I was in the swag I remember getting a Snapchat message from [PGT] asking me to come over to his swag.
QThe message about being in a swag is from [PGT].
AYes. So I was in my swag with [P] watching a movie with [P] and he said ‘in swag’ and I said yes because I was in my swag and then after that he messaged me on Snapchat asking to come to his swag and then I’m not sure what the message that I sent about ‘Come here please’ was in regards to.[151]
[151] T 318, 31-38; T 319, 1-17.
CP said she was not sure if she saw her mother wearing the pyjama top that the accused used to wipe off his semen and she did not know if he used the inside or outside of the top.[152]
[152] T 315.
CP agreed that she had said in evidence that before she turned 17 and got her provisional licence, her mother was not always at the accused’s house with her because she would leave to drop off the day care children.[153] CP agreed that in her statement dated 25 November 2019 she said ‘I’m not sure of the time when we first had penis-vagina intercourse, but it was before my 17th birthday. Not much happened with [PGT] before I turned 17 as I was always there with my mum as I didn’t have my own way of getting there’.[154] CP maintained that there were times when her mother dropped her off and returned later.[155]
[153] T 321.
[154] T 321, 26-32.
[155] T 321.
CP agreed that the first time she said anything to police about an occasion when the accused used the vibrator bought as a Christmas present for her was on 24 April 2022.[156] She confirmed that she had made statements on 26 June 2019, 26 September 2019, 25 November 2019, 20 March 2020, 24 April 2022 and 16 May 2022.[157]
[156] T 322.
[157] T 322-323.
Re-examination
CP said that the term ‘proper romantic relationship’ meant when the relationship between her mother and the accused became public knowledge.[158]
[158] T 325.
CP said that when she first spoke to police it was a messy time for her because she had moved out of home, told her mother what had happened, was arranging to get belongings from her mother, arranging counselling and was unsure of what she could say to the counsellor prior to talking to police.[159] She said when she first spoke to police she was unsure about what she could say about what had happened and was unsure about whether she wanted to put a statement in to police.[160] She gave this evidence:
[159] T 325.
[160] T 326.
Because it happened so quickly from me going to counselling and talking about it to counselling to me going to the police, because the counsellor that I had gone to had spoken to me that she – that it was going to get reported on the CARL reporting site and she said it – it will be better if it comes from me firsthand than some – a third party, so I was still trying to wrap my head around what I could actually – what I could or what I – what to – what to say to the police, because it was a very new and unfamiliar environment, being in a room with a police officer talking about it.[161]
[161] T 326, 16-26.
Initial complaint witness - KP
In 2018, KP was the third in charge at an early learning centre in Whyalla. CP started working there in October 2018. KP was CP’s team leader and a student liaison officer. She was required to ensure that CP completed her studies on time as the 12-month contract renewal was contingent upon study completion. KP knew CP from seeing each other at netball and living in a small town.[162]
[162] T 337.
KP said that from time-to-time CP would be in the staff room and would be quite upset and when KP asked her if she was okay, CP would say that her stepfather had upset her. This was a regular occurrence in 2019.[163]
[163] T 338.
On 17 April 2018, CP competed in the Senior Division 6 Final of the 2018 CASA Graceful Solo Competition.
CP obtained her learner’s permit on 20 September 2016 and was issued her provisional P2 licence on 20 September 2017.
I accept the evidence of Senior Constable Tregenza and Brevet Sergeant Wallwork. There was no challenge to their evidence.
Analysis
The prosecution case depends upon the evidence of CP as to the conduct of the accused comprising the particulars of counts 1 and 2 and other sexual activity with the accused that she alleges occurred after she turned 18 years of age or outside of the jurisdiction.
Plainly, if I were satisfied that the accused had engaged in sexual activity with CP after she had turned 18, that of itself, is not a criminal offence. The evidence is nevertheless relevant and admissible as evidence of the accused’s sexual attraction to CP and evidence from I could infer that this sexual attraction had existed prior to CP turning 18 years of age. CP’s evidence of sexual activity with the accused in Mildura is discreditable conduct. If I am satisfied beyond reasonable doubt that the sexual activity she described took place in Mildura, then it may be used by me as evidence of the accused’s sexual attraction to CP and his propensity to act upon that sexual attraction when the opportunity arose, and notwithstanding the presence of other people and the fact that the location was a public place.
The first sexual encounter
CP gave detailed evidence of an occasion that she said was the first time that there had been any sexual activity between her and the accused. She pinpointed that occasion to a date, time and location and could recall what she was wearing and why she saw the accused on that occasion. CP said she had been at school in the morning and had left to go to the accused’s house around 10.45am. CP said she had arranged to go there for the purpose of going shopping with the accused for a present for her mother’s birthday. JP’s birthday was on 3 February. CP asserted that she was in year 11 and was 16 years of age and it was 4 or 5 days after Australia Day. I take judicial notice of the fact that Australia Day falls on 26 January every year and there are 31 days in January.
In her evidence in chief, CP did not explain how she had travelled from school to the accused’s house. When the sexual encounter in the house ended, CP and the accused travelled in ‘the car’ to the shops and after returning to his house, she went to her mother’s work.
CP said that similar sexual encounters took place after this when her mother dropped her off at the accused’s home to arrange dinner and would then return 30 to 45 minutes later after dropping home her day care children. It was in some of those windows of opportunity that the accused would ask her for a quick cuddle, and she knew that this meant sexual intercourse. Sexual intercourse would happen the same way every time and either involved the accused trying to put his penis in her vagina or putting his penis in her vagina. She could not say whether the first time he put his penis in her vagina was before or after she turned 17 years of age. The frequency of these occasions increased after she obtained her provisional licence as she would attend the accused’s house more often.
The reliability of CP’s evidence as to the timing of the first sexual encounter was seriously undermined in cross-examination when prior inconsistent statements were proved, and D6 was tendered. CP had previously told police that after the sexual encounter and the shopping trip for her mother’s present, she had ‘dropped’ the accused home and then gone to her own home where she saw her mother. She also told Senior Constable Tregenza in June 2019 that nothing physical happened between her and the accused until September 2017, maybe a few months later.
If this sexual encounter as described by CP had occurred when she was 16 years of age, she did not have a provisional licence, but only a learner’s permit. She said she had never driven a vehicle whilst on a learner’s permit without an adult present. CP conceded that she would not have dropped the accused home and driven to her mother’s work when she was 16 years of age. CP could not give a satisfactory explanation for why she told police in June 2019 that she had dropped the accused home. Her explanation for the prior inconsistent statement regarding the commencement of anything ‘physical’ between her and the accused was unsatisfactory.
It was not until CP was shown the text messages in D 6 that she agreed that the occasion she attended the accused’s home to go shopping for her mother’s birthday present occurred in 2018 and not 2017. However, she maintained that this was the very first time there was sexual contact between her and the accused. She ultimately agreed that it could be possible that she was 17 and not 16 years of age when this first sexual encounter is alleged to have occurred.
I find that the messages in D6 relate to the very occasion that CP said she attended the accused’s home so they could go shopping for a birthday present for her mother and which she said coincided with the first sexual encounter.
Evaluation of initial complaint evidence
CP’s evidence regarding her initial complaint to KP was devoid of detail. She told KP that the accused had sex with her. I formed the impression that KP was a thoughtful, reliable and credible witness. I accept her evidence regarding the terms of the complaint made to her by CP. The complaint was made in May 2019.
KP’s evidence regarding the complaint made to her by CP was much more detailed than that described by CP and included allegations which were not made by CP in evidence.[202]
[202] KP said that CP first complained that the accused had told her he wanted to watch her have ‘sex for the first time’. KP also said that CP told her that the accused had been touching her breasts and making sexual comments prior to the first sexual encounter.
I accept KP’s evidence that the initial complaint included detail about the first time the accused had sexual intercourse with CP and that this was on an occasion when they were intending to buy a birthday present for her mother. The terms of that complaint are consistent with the evidence given by CP, including the fact that it was a ‘few years’ prior to May 2019, which is capable of including 2017 as asserted by CP in her evidence in chief. CP also told KP that the word ‘cuddles’ was a codeword for sex.
This consistency between the complaint and CP’s evidence in chief does not alter the fact that CP conceded in cross-examination the possibility that the occasion upon which she alleges the first sexual encounter occurred was on 29 January 2018 when she was 17 years of age and not in 2017 when she was 16 years of age.
Accordingly, CP’s account about the alleged offending to KP has not remained consistent from the time she first complained to her evidence in court. There is consistency in the description of the sexual encounter and the details of the circumstances in which it occurred but not in its timing.
Credibility and reliability of CP’s account of timing of first sexual encounter
For the reasons I am about to explain, the credibility and reliability of CP’s evidence regarding the timing of the first encounter is a matter that affects an assessment of other crucial aspects of her evidence regarding the charged offending and its surrounding circumstances.
In many cases involving offending of this type, it is understandable and even expected that a complainant will be unable to pinpoint reliably the date or even the year of the commencement of sexual offending. In those circumstances, any proved prior inconsistent statement or other error as to timing may be attributable to the effluxion of time or the vagaries of memory or the sheer volume of the offending conduct. That is not the case here. Not only was CP precise in her description of date, time, location and the occasion coinciding with the commencement of the alleged offending, she gave evidence of sexual acts that were ongoing and occurred when she was 16 years of age.
I cannot be satisfied beyond reasonable doubt on CP’s evidence that any of the sexual acts particularised in count 1 occurred when CP was under 17 years of age, and therefore a ‘child’ as defined in s 50 (12) (a) CLCA. I reject CP’s evidence that after the first sexual encounter the accused would engage in sexual acts with her (in the same or similar way) on some of the occasions that her mother dropped her off at the accused’s house when she was 16 years of age. In light of CP’s concession in cross-examination about the timing of the first sexual encounter and my findings regarding when the shopping trip occurred, I find that no unlawful sexual acts as particularised took place before 29 January 2018.
CP also gave evidence of specific sexual acts that occurred prior to and after another specific occasion – 20 September 2017, the date she obtained her provisional licence. [203]
[203] P12 proves that she was issued with her provisional P2 licence on 20 September 2017 and her learner’s permit on 20 September 2016.
CP said that she was not sure whether the first occasion of fellatio was before or after she obtained her provisional licence. However, CP also said that mutual oral sex occurred more frequently after she obtained her provisional licence. In other words, on her evidence mutual oral sex (which of necessity includes fellatio) occurred before she obtained her provisional licence.
CP also gave evidence that the offending which she said in evidence in chief started when she was 16 was ongoing and escalated in its frequency after she obtained her provisional licence.
The findings I have made adversely affect and significantly undermine not only CP’s reliability, but also her credibility and have a flow on effect in an evaluation of her evidence regarding the sexual activity that she alleges occurred after the first sexual encounter with the accused.
Her evidence regarding the commencement and escalation of the offending was inextricably linked by her to certain events which had an identifiable and, at times, precise date. This is not simply a matter of CP ‘getting her years mixed’ up as was argued by the prosecution.
I agree with defence counsel that the effect of a finding that there were no unlawful sexual acts prior to 29 January 2018 damages CP’s credibility and reliability to such an extent that a reasonable doubt arises regarding the veracity of the allegations of unlawful sexual acts said to have occurred after she turned 17.
In addition, there are aspects of CP’s account of the first sexual encounter, the sexual activity in Adelaide during the calisthenics competition, the sexual activity in Mildura and the sexual encounter in the shed and use of the vibrator on her after she turned 18 years of age that have caused me to entertain a reasonable doubt about whether they all in fact occurred.
The first sexual encounter described by CP was completely out of the blue and extremely brazen. On CP’s account there is no evidence of grooming or similar behaviour that might have led the accused to believe or be confident that CP would not protest or complain.[204] CP said the accused shut the sliding door to the bedroom but later conceded that it was broken and unless ‘wiggled’ to a point where it was almost closed, would be in a three quarters’ open position. A prior inconsistent statement regarding the sequence of sexual activity was proved.
[204] I am not satisfied that the accused and JP agreeing to allow CP to have alcohol at a social event and the accused once commenting that he liked what she was wearing constitutes grooming behaviour.
I view with circumspection CP’s evidence that the occasion of sexual offending in a hotel room in Adelaide during a calisthenics competition was not more memorable than the other occasions. It was an occasion that she was able to recall in particular detail in evidence, including the style of pyjama pants[205] she was wearing. Her omission to mention this occasion of sexual offending to police in her first statement on 26 June 2019 is a matter that undermines the credibility of her account. The text messages between her and the accused on 16 April 2018 do not support her account of a sexual encounter occurring in which the accused became angry with her because she rejected him.
[205]Sponge-bob pyjama pants.
CP’s account of getting into a swag with the accused at lunchtime at the Hattah Races in a public caravan park with other patrons in the vicinity and having sexual intercourse with him in the presence of JT, TT and two of her mother’s day care children was inherently unlikely. I consider it highly unlikely that the accused would have cleaned up his ejaculate with JP’s pyjama top in circumstances where this was likely to have been detected by JP and, on the prosecution case, he was making attempts to conceal his offending.
The failure of CP to include in any of her statements to police, prior to the trial being unexpectedly adjourned, the allegation that the accused used a vibrator on her when she was 18 is a prior inconsistent statement by omission that causes me to have reservations regarding the veracity of her account of this allegation.
The cumulative effect of the reservations I have regarding CP’s credibility affect my preparedness to accept her evidence regarding the sexual encounter in the shed, aspects of which I also consider to be inherently unlikely.[206]
[206] CP said the roller door to the shed was up halfway and she was not sure where her brother or the accused’s children were. CP said they were disturbed when someone opened the back door to the laundry but made no mention of who that was or who was in the house when she went back in.
These findings also affect the credibility of CP’s evidence that ‘cuddles’ was a code word for sex and that the accused would use that word in text messages to her when he wanted to have sex with her. I have found that no unlawful sexual acts as particularised took place before 29 January 2018
For the following reasons I reject CP’s evidence that any reference to ‘cuddles’ in any text message from the accused to CP before 29 January 2018 was intended to be a codeword for sexual intercourse with the accused.
In P3 there are 47 references between 4 November 2017 and 21 January 2018 by the accused to cuddles with CP.[207] In this same period there are also numerous messages from the accused to CP in which he tells her:
[207] The last message in P 3 in January is 21 January 2018. The next message is dated 12 February 2018.
·that he misses her,
·that he cares about her and loves her,
·that she is beautiful and amazing,
·that he gets upset when they do not talk or catch up,
·that he wishes she knew how much he loves and cares for her and that is why he gets upset when he does not see her,
·that he feels that he has lost ‘our closeness’,
·that he has always been in her life but she is the one who did not want that,
·that she is happier not being around him or seeing him,
·that she hates being around him, all he wanted to do was to be close and that he is nothing special unless she needs something,
·that he wants to see her more than once a week,
·that he wants to see her happy,
·that he cannot help loving her a lot,
·that he loves cuddling her all the time but if she does not like it she should tell him and he will leave her alone,
·that he is sorry to be annoying and he will not touch her anymore,
·that he is sorry for the kiss and cuddles because he knows she gets annoyed, that he is always the one hugging her but she is pushing him away.
These messages reveal an unhealthy obsession with CP and paint a picture of a lonely and desperate man craving the attentions of JP’s daughter.
The following series of messages supports a finding that the reference to cuddles was not a code word for sexual activity prior to 29 January 2018 and in fact referred to a cuddle or a hug. [208]
[208] P3, page 13.
1059 Friday, Jan 19 2018 15:33 PGT Why come to my house and sit there like u don’t even wanne be here made me feel awesome not u only came to get containers you should just grabbed em and left i don’t care really your back to how thins where and im ok with it but will be different this time take care love u forever 1060 Friday, Jan 19 2018 15:53 CP I came to your house to see u [PGT] and I loved over cause I thought that nay was going to give u a cuddle so I don’t understand why u kicked me out of your home 1061 Friday, Jan 19 2018 15:56 PGT Just wanted to hug you because i missed u tried twice and you didnt wanna know like u hate me why come to my house like that no more lies courts its totally fine im ok with how u wanna go back too really just be different this time yous don’t know how to miss me just know how to say it too look good but all good no this is my last message on it cant keep fighting is what it is il be different tho 1061 Friday, Jan 19 2018 15:57 CP I did cuddle u tho so don’t understand why u keep asking g me of something is wrong I tell u all the time that I’m fine and if I wasn’t I would tell u 1064 Friday, Jan 19 2018 19:31 PGT Really don’t know why u hate been around me now why dont just say hey dont like cuddles hugs etc thats fine would prefer to know i tried my hardest to be close but just isnt what u want sorry for everything be keeping my distant but things will be different love u lots bye [CP]. 1065 Friday, Jan 19 2018 19:35 CP Just letting u know that I don’t hate being around u so stop thinking that [PGT] it annoys me that u thing that and I do like your cuddles but I get upset when u push me away from u when I try to give u cuddles 1066 Friday, Jan 19 2018 19:36 PGT I tried hug u twice to make up and i missed u and u didn’t wanna know me just looked like u wanted to get out of there 1067 Friday, Jan 19 2018 19:39 CP No I did hug u but u kicked me out cause u got mad and i tried to hug u
Further, if the accused was attempting to conceal the offending by using the codeword ‘cuddles’ for sexual intercourse, the use of this codeword is difficult to reconcile with his preparedness to use other references to physical contact, such as hugs, kisses and touching. CP did not suggest that the word ‘hug’ was a codeword for any form of sexual activity. CP said that the accused would kiss her as a hello or goodbye kiss.[209] She said in evidence she thought that when she first started having sex with the accused that when he used the word cuddles it meant a hug.
[209] T288, 17-18.
The clear implication from her evidence is that after the accused first had sex with her the words cuddles and hug did not mean the same thing and yet in May and October 2018 CP was treating a hug as the same thing as a cuddle.[210]
[210] See for example the following exchange in P3 in which CP equates the term ‘hug’ with ‘cuddles’
Page 24, 3 May 2018 message 1927 from [PGT]: Well was my maitake dont come over any more and not gonna hassel u again enjoy ya weekend and your snap chat prob see u saty maybe dont need to hug me any more too all good my mistake bye courts. See also messages 3324-3326/
Message 1928 from CP: I’m sorry but I do want to come over your house I like having cuddles with u [PGT] l and I will see u Saturday and I love u very much xx
In addition, the sheer volume of messages exchanged between the accused and CP and the fact that the bulk of the messages in P3 comprise explicit protestations of love by the accused for CP and are obsessive in their nature[211] tend against an inference that the accused was actively trying to conceal the nature of his relationship with CP and therefore using the codeword cuddle to hide the fact that he was having sex with her. One of the messages from the accused refers to CP only wanting cuddles when her mother is there, suggesting that the accused believed CP was only cuddling him when her mother was there and not because she wanted to.[212]
[211] The accused admits to JP in P8 message 1331, 22 Sep 2018 00:03 Im sick of wrecking everything because im so emotional and attached i do try hard not to. See also P 8 message 1694 26 Sep 2018 19:11: Really feeling lost and useless atm its why im so clingy to u and courts really all i have honestly [PGT] like im second best most times and doesn’t matter how i feel or say. See also message 1698, 1747.
[212] P3, message 3229, Oct 7 2018, 1520 U dont want cuddles [CP] only when ya mum is there so lets no do them any more
In my view it is telling that there is not one reference to the sexual activity CP alleges was occurring in a total of over 13,000 messages. According to CP, the accused would use the term ‘BJ’ for fellatio and do so in front of her mother, but there is not one message in which the term ‘BJ’ appears.
However, there are messages involving sexual innuendo[213] which include the giving of a vibrator as a Christmas gift from both the accused and CP’s mother. CP said in evidence that this present was a ‘joke’. CP said it was her mother who told her about or showed her a picture of the pink vibrating dildo that she later received as a Christmas present.
[213] P3, message 2613 August 13 2018 16:43 [PGT]: ok im breast specialist if you need a second opinion
but hopefully it is all ok. Message 631, 29 Nov 2017 13:54 Ok try relax more about stuff ok xxx try orgasm couple of times a week or something lol relaxxxxx be honest dont stress
P3 message 2632, 2635 August 14 2018 19:56, 20:03: My balls are too ☹ So no offer to massaged em,??? See also message 3468.
Message 2939 Sep 8 2018, 15:29 ‘Oh yeah sex in the car’ has no context from which it can be inferred that this is a reference to sexual activity with CP. CP does not allege she ever had sexual activity with the accused in a car.
Further, CP gave evidence that her mother would access her mobile telephone making detection of the messages from the accused a distinct possibility. In messages on 9 May 2019 the accused tells JP twice to have a look at CP’s mobile telephone to have a ‘look at what’s going on’.[214]
[214] P8, message 3751, 3784.
The messages in P8 reveal that from August 2018 the accused openly discussed with JP his feelings for CP and the fact that he cuddled her[215] that he acknowledged that there were occasions when he touched her breasts in front of JP[216] or ‘woke’ her up with ‘his Dick’[217], and that JP was right when she said that fathers and daughters do not have that kind of relationship and that it was not okay for him to touch her breasts.[218]
[215] P3, message 1324, 20 Sep 2018, 22:35: Yeah and both didnt need to snap at me i said u come lay in bed i wanted to give u a cuddle before i go i snapped im just going to toilet ok i leaned over cuddle [CP] she wasnt interested i said whats wrong she said nothing snappy i said what your grumpy to she got up snapping im not fucking grumpy ok guess both missed me time to stop been so affectionate and go with the flo night.
[216] P8, message 2734 – 2736, 27 December 2018. See also message 3351-3352 7 May 2019: JP: And why u r made when her I can say how I feel I’ve told u before but no one cares about my feelings cause if u did u wouldn’t do it but no normal dad touches there daughters boobs I know u don’t see her as your daughter and u say they are just boobs but I hate it it’s not right it hurts my feelings every time u say u with stop but u don’t so u hurt me too I know u don’t see that and think it’s funny but I don’t and it hurts me like hell.
[PGT]: ok sorry to hurt u I shouldnt do it yes, i will just walk around take what i get and say nothing sorry say anything i won’t any more hope your day gets better.
[217] P8, messages 2688-2691 27 December 2018.
[218] P8, messages 2797 – 2805.
The messages in P8 reveal that the accused discussed with JP the occasions when he was upset when CP has not seen him, that he thought he meant more to her, that she is only visiting him because JP said something to her and that she is abandoning him because she was found someone else.
In messages on 26 Sep 2018 at 13:02, 15 Oct 2018 at 09:59, 15 October 2018 at 10:02, 30 October 2018 and 31 October 2018 at 20:28 JP wrote:
I do love u and so does [CP] but I’m over u messaging her everyday saying she doesn’t care about u she meant to be your daughter not your gf u and her would have a good relationship then most dads and daughters I don’t actually know what u want her to do/ u messaged her in the morning more than u did me – she comes and see u when she can messages u more then anyone else but it’s never going to be good enough
I was honest I have done that but not on a long time so there was honest. Your mood changed obv something [CP] did but u can’t be honest and tell me remember she’s meant to be your daughter not your gf.
When u get mad with [CP] u r mad with me. What is she your gf
Just go home then easy option. When your kids upset me I don’t take it out on u but u r mad with [CP] cause she didn’t say about catching up so then u get mad at me what u want to catch up with [CP] more then me to touch her boobs like u keep telling me but easy option is just to leave that’s your choice mate just walk away
Fuckn driving actually but ok no probs would rather be with one who wants to spend more time with me then my daughter then gets mad over it
The accused does not deny that he has behaved in the way described by JP.
Having considered all of the messages in P3, and the context and frequency of the use of the word ‘cuddle’ and ‘hug’, ‘kiss’, ‘touch’ together with my finding that there were no unlawful sexual acts prior to 29 January 2018, I reject CP’s evidence that the word ‘cuddles’ was a codeword for sexual activity with the accused before or after 29 January 2018.
I am not satisfied beyond reasonable doubt that when the accused sent messages to CP when she was 17 years of age in which he suggested she try to orgasm twice a week, that she should use a vibrator twice a week and said that there was no offer by her to massage his balls he did so intending to procure her to engage in sexual activity. Bearing in mind the context of these messages and the terms in which they are expressed and the way in which the accused would communicate by text message with CP, I cannot exclude the reasonable possibility that they were intended as a joke, albeit highly inappropriate and in very poor taste.
I am satisfied that the accused touched CP’s breasts on more than two occasions and did so in front of JP. CP’s evidence on that topic was corroborated by the admissions of the accused in text messages between him and JP.
However, I am not satisfied beyond reasonable doubt that he touched her breasts in the manner she described (in the course of other sexual activity including cunnilingus and penile/vaginal sexual intercourse) before she turned 18 years of age. CP gave evidence that the touching of her breasts in front of her mother occurred after she had moved in with the accused and she was 18 years of age.
Conclusion
Whilst the accused’s behaviour towards CP was unhealthy, inappropriate and likely to cause offence and discomfort his driving motivation appears to be a craving for attention and love and a fear of being rejected. On the state of the evidence led by the prosecution and my findings of fact I cannot be satisfied beyond reasonable doubt that the accused maintained an unlawful sexual relationship with CP by engaging in two or more of the unlawful sexual acts particularised in the Information.
Verdict.
I find the accused not guilty of count 1.
I find the accused not guilty of the count 2, in the alternative.
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