R v T, WA
[2013] SADC 120
•29 August 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v T, WA
Criminal Trial by Judge Alone
[2013] SADC 120
Reasons for the Verdict of Her Honour Judge Davey
29 August 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is the step father of the complainant - he is charged with Persistent Exploitation of a Child and Unlawful Sexual Intercourse (alternative offence) - the sexual offences allegedly took place over a lengthy period and were not reported until over 30 years later.
Verdict: Guilty of Persistent Sexual Exploitation of a Child.
Criminal Law Consolidation Act 1935 Ss 49(3), 50(1), (2), (4), (7), 277 and Rule 4(4) in Schedule 3; Evidence Act 1929 S34CB(2), referred to.
R v Pfitzner (1976) 15 SASR 171; R v M, BJ (2011) 110 SASR 1, considered.
R v T, WA
[2013] SADC 120Introduction
WAT is charged with persistent sexual exploitation of a child and unlawful sexual intercourse. The accused elected to be tried by Judge alone.
The charges are as follows:
First Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
WAT between the 26th day of June 1970 and the 26th day of June 1981 at Elizabeth South, Lock, Kapunda and Largs North, over a period of not less than three days, committed more than one act of sexual exploitation of JT, a person under the age of 18 years.
The acts of sexual exploitation comprised touching and licking her breasts on more than one occasion, touching the outside of her vagina with his fingers, mouth, tongue and penis on more than one occasion, forcing her to touch his penis and put his penis inside her mouth on more than one occasion, inserting his fingers into her anus and penetrating her vagina with his fingers, tongue and penis on more than one occasion.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
WAT between the 23rd day of June 1978 and the 31st day of December 1978 at Kapunda, had sexual intercourse with JT, a person of the age of 15 years, by inserting his penis into her vagina.
The accused takes issue with the framing of the particulars in respect of the first count. I will deal with those submissions in due course.
For the reasons set out hereunder, I find that the accused is guilty of the offence of persistent sexual exploitation of a child.
Background
The complainant (JT) is the accused’s step-daughter. The offending is alleged to have occurred at various places where the family resided between June 1970 and June 1981.
The accused married BDT (JT’s mother) on 27 May 1971.[1] At the time, the family was living at Elizabeth South. JT is now ‘about 50 years of age’.[2] JT said that she was ‘7 going on 8, maybe not quite 8 years old’ at the time of the marriage between her mother and the accused.[3]
[1] Exhibit D5
[2] T26
[3] T31
The prosecution allegation is that when the family were living at Elizabeth South, the accused engaged in grooming behaviour including some sexual touching and that acts of sexual assault occurred when the family were living at Lock, Kapunda and Largs North. The prosecution case is that the extent of sexual touching escalated over time and eventually included penile/vaginal intercourse.
The prosecution case relied almost entirely upon the evidence of JT who described the offending conduct.
Other evidence called by the prosecution included SS, who is a niece of the accused. She lived in Cummins at a stage when the accused and the family were living at Lock. She was a child at the time of the relevant events. She gave evidence about interaction between the family, and also about attendance at Weight Watchers meetings in Cummins which matter is relevant to some alleged acts of sexual assault and the opportunity (or not) for those incidents to have occurred. SS also gave some evidence about her observation of interaction between the complainant and the accused.
The prosecution also called VR, the longstanding former partner of the complainant, who described the nature of the relationship (or lack thereof) between JT, her mother and particularly, the accused. Her evidence contradicted suggestions put to JT during cross examination about ongoing friendly contact between her and the accused. JT denied those suggestions and her evidence in this regard was supported by VR.
The prosecution case relied almost entirely upon the credibility and reliability of the complainant’s account of events. There was little supporting evidence.
The accused gave evidence denying any sexual or inappropriate touching of the complainant.
The applicable law
The relevant provisions of the Criminal Law Consolidation Act 1935 (CLCA) are:
50—Persistent sexual exploitation of a child
(1)An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
Maximum penalty: Imprisonment for life.
(2)For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.
and s49(3) of the CLCA:
49—Unlawful sexual intercourse
(3)A person who has sexual intercourse with a person under the age of seventeen years is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
These are alternative charges.
In respect of the charge of persistent sexual exploitation of a child the prosecution must prove beyond reasonable doubt each of the following ingredients:
1That at the time of the alleged offending the accused was an adult.
2That the accused committed more than one act of sexual exploitation against the complainant. An act of sexual exploitation is a sexual offence. Consent of the complainant is irrelevant.
3The accused committed at least two acts of exploitation and the two or more acts must be amongst the acts particularised in the Information.
4The accused committed the two or more acts of sexual exploitation over a period of at least three days. This means that the time between the first and the last acts must be three or more days.
5The prosecution must prove that at the time the accused committed the acts of sexual exploitation the complainant was under 17 years of age.
I note s50(7) of the CLCA with respect to the definition of ‘sexual offence’.
I also note s50(4)(c) of the CLCA which contemplates that there may be (as in this case) another charge in the same Information alleging a specific sexual offence. If I convict of the persistent sexual exploitation of a child offence then I should not deliver a verdict in respect of the alternative charge.
The accused was interviewed by police in respect of the allegations on 17 December 2010.[4] The interview was recorded.[5] After answering some questions as to his place of residence at various times, the accused declined to answer questions in respect of the allegations of sexual assault upon JT. The accused had a right to remain silent and I do not draw any adverse inference from his exercise of that right.
[4] Agreed Fact; T242
[5] Exhibit P4
At the end of the prosecution case, the accused chose to give evidence and was cross-examined. That was a course open to him but he was not obliged to give evidence. The effect of his giving evidence is that, in assessing his evidence and the weight to be given to it, I am to approach that task in the same way as I would in respect of any other witness.
There was no contemporaneous or recent complaint by JT in respect of the sexual assaults. JT said that she told her brother, Ricky, of these matters when she was a teenager. ‘Ricky’ did not give evidence. This evidence from JT was not led as complaint evidence but, on the contrary, to explain why she failed to complain and confide about the sexual abuse.
The argument with respect to particulars of the First Count
The defence takes issue with respect to the particulars in the First Count. Counsel for the accused submitted that the charge does not conform with s277 of the CLCA and the Rules in Schedule 3 of the Act. The accused submitted that the Information is not valid. I was not told what finding or remedy that I should make as a result of this argument. During submissions I raised the wording of the particulars with counsel and I invited written submissions to be put to me about the matter.
Section 277 of the CLCA provides:
277—General provisions as to informations
(1)Every information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as are necessary for giving reasonable information as to the nature of the charge.
(2)Notwithstanding any rule of law or practice, an information shall, subject to the provisions of this Act, not be open to objection in respect of its form or contents if it is framed in accordance with the rules under this Part.
Rule 4 of Schedule 3 of the CLCA, subsection (4) provides:
4—Setting out of offences and counts in information
…
(4)After the statement of the offence, particulars thereof shall be set out in ordinary language in which the use of technical terms shall not be necessary: Provided that where any rule of law or any enactment limits the particulars of an offence which are required to be given in an information, nothing in this rule shall require any more particulars to be given than those so required.
I note the content of those Rules generally.
The accused complains that whilst the offence of persistent sexual exploitation of a child is correctly identified in the Statement of Offence, the Particulars are not expressed with reasonable clearness or in ordinary language.
Counsel for the accused contended that the Particulars bear no, or little, resemblance to the evidence of JT and accordingly I should have a doubt about whether the prosecution has proved their case beyond reasonable doubt. It is suggested that the particulars in the charge are a measure of the consistency of JT’s ‘ultimate version’.[6]
[6] Paragraph 5 Defence Written Submissions
Section 50 of the CLCA says that persistent sexual exploitation of a child is committed if an adult person, over a period of not less than three days, commits more than one act of sexual exploitation of a child. In my view, the particulars of the offence charged in this case are curiously worded. The charge sets out a description of the acts of sexual exploitation, and, after each type of act is described, the term ‘on more than one occasion’ was included. In my view this is an unnecessary and confusing way in which the particulars are specified but after reflection I do not consider that the terms of the particulars give rise to any doubt as to the accused’s guilt, the consistency of the complainant’s account nor to whether the offence is made out at all.
I agree with the prosecution submission that particulars are designed to ensure that the parties direct themselves to the forensic contest. I agree that the guiding principle is that the accused is to be treated fairly and that there is to be no prejudice caused to an accused by way of a misapprehension as to the case that he is to meet. [7] In my view there is no doubt as to the case that the accused was being presented with and asked to meet.
[7] R v Pfitzner (1976) 15 SASR 171 at 192
As Wells J observed in R v Pfitzner[8] even though there is a technical flaw in the formalities of the charge (and I think the particulars should have been drafted differently) there may be no unfairness to the accused as a result thereof.
[8] ibid
I note s50(4) of the CLCA which provides:[9]
[9] See R v M, BJ (2011) 110 SASR 1 [66]-[81]
(4)Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:
(a) subject to this subsection, the information must allege with sufficient particularity—
(i)the period during which the acts of sexual exploitation allegedly occurred; and
(ii)the alleged conduct comprising the acts of sexual exploitation;
(b) the information must allege a course of conduct consisting of acts of sexual exploitation but need not—
(i)allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or
(ii)identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;
(c) the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person—
(i)in relation to the child who is allegedly the subject of the offence against this section; and
(ii)during the period during which the person is alleged to have committed the offence against this section, must be charged in the alternative.
In my view, that section has been complied with. The words of the particulars ‘on more than one occasion’ (which phrase is repeated four times) is unnecessary. Section 50(4) of the CLCA requires that the alleged conduct be identified and in this case that was done.
In my view there is no substance to this argument and the wording of the First Count does not cause me to take issue with any aspects of JT’s account of events.
Delay
In this case there has been a period of over 33 years between the alleged end of the offending and the trial. There was a delay of over 30 years before the matter was reported to police and when the matter was first drawn to WAT’s attention by police. The delay has resulted in a significant forensic disadvantage to the accused. By that I mean that the accused has difficulty challenging and responding to allegations about events that occurred so long ago. I note that the delay has led to the complainant being unable to remember matters of detail, for example, the detail of precise times and dates. The matter of delay has disadvantaged the accused because of a reduced ability to test JT’s account in detail.
The delay has disadvantaged the accused because if there had been a prompt complaint of all or some of the offending, he may have been in a position to remember back to a relevant time and what, if anything, happened in respect of those circumstances. The accused may have been able to point to other persons who would have been able to shed light on the incident or whether he was present at the time of the incident.
I also note that the absence of prompt complaint means that there is no medical or scientific evidence supporting the complainant’s account of events. Particularly, the complainant describes digital and penile penetration which may well have yielded some forensic material capable of shedding light on the matter. The absence of such material may also have had importance.
I note s34CB(2) of the Evidence Act 1929 which provides:
34CB—Direction relating to delay where defendant forensically disadvantaged
(2)If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a) explain to the jury the nature of the forensic disadvantage; and
(b) direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
I have had regard to the matter of forensic disadvantage in scrutinising the evidence of the complainant and when considering whether there was other evidence that may have been available to assist in proof or otherwise of the matter. I also have regard to the forensic disadvantage that the accused has suffered both as to his recall of events and his ability to gather evidence which may support his position. I have regard to this issue when deciding whether I am satisfied that the charge has been proved beyond reasonable doubt.
General remarks about JT
The prosecution case relies upon the credibility and reliability of JT. If I have any doubt as to her reliability and/or credibility as to the allegations made then I should find the accused not guilty.
JT was an impressive witness. She told a coherent story and was frank about her history. She described some convincing detail. She was genuine. Her evidence had the ring of truth. I find that she was both credible and reliable about all matters of substance. The accused raised issues as to her reliability and criticised her evidence including about the topic of Weight Watchers meetings as well as her evidence of sustained and sometimes loud resistance but, giving due weight to those matters and all criticisms of her evidence, I am satisfied beyond reasonable doubt that she is both truthful and reliable about these allegations.
JT’s disability
Early in her evidence JT said that she had had a brain tumour which was removed by surgery. That was described as occurring ‘a few years ago’, in 2010. JT said that as a result of the tumour and the surgery she had ‘a recall problem sometimes.’
Like, I know what I want to say but finding the correct word. I have a stutter if I get anxious and stuff, I stutter, and I also have problems pronouncing right words. I get, they say it is called spoonerisms, where the letters and the words get mixed back up.
JT also agreed that she sometimes mixes up the first letter of a word with a word that sounds similar.[10]
[10] T27
JT said that she becomes tired particularly if she became ‘worked up’ and that fatigue would affect her speech and that her right eye tended to close itself. She said that she may tire and her speech deteriorate.[11]
[11] T28
JT said that she was taking medication. She told me that did not affect her concentration. She said that she no longer took anti-seizure medication. She said that the tumour had gone and the seizures no longer occurred. She said she is no longer taking any medication relating to the brain tumour or the surgery.
JT was asked whether she had problems with her memory. She said she didn’t have difficulties with her long term memory but she said that she has minimal short term memory. She said that she can have a conversation with someone and if there’s too much information she can retain a lot of it but some of it doesn’t stay, but it comes back at a later stage.[12]
[12] T29
No medical evidence was called at the trial.
During cross examination I asked some questions of JT about the tumour and her surgery. She said that she had collapsed on 15 February 2010 and was placed in a coma where she remained for 3 ½ days. She then remained in hospital for three weeks and she had the operation and the tumour removed on 4 or 8 March 2010. She said the hesitancy and speech impediment (which was obvious as she gave evidence) was not present prior to this collapse and surgery. She said that she ‘smashed the back of her head’ when she fell, the doctors did a CT scan and that is when they found the tumour. She said that prior to that she was feeling well and OK except that she suffered headaches and until that time she had been working. She said she stopped using illicit drugs in February 2000.[13]
[13] T91, 92
JT’s evidence in chief
JT said that she has an older brother, Ricky, with whom she shares the same father. She has two sisters, Judith and Michelle, who have a different father.
JT said that when she was about 7 years old she lived at Elizabeth South. She described the house as semi-detached. She said the accused came to the house ‘most of the time in a white truck’.[14] She went to Elizabeth South Primary School as did her brother. Her mother and the accused married and she did not attend the wedding but was told about the marriage by her nanna and poppa.
[14] T30
JT said that initially the accused behaved well towards her. She said that on weekends, mainly on weekends, she went for drives in the truck with WAT and she described the truck as a white, Bedford truck. She described the truck as having a cage where he used to strap cylinders, gas cylinders. She described a single seat for the driver and then a longer bench seat on the passenger side of the truck.[15] JT described the accused touching her to the leg, inside the leg or his hand on her chest. She said she went out in the truck quite a few times on the weekends.[16] She said that she told him to stop it, that she didn’t like it and that the accused had told her that he was ‘going to be her dad now, that he was going to look after her and make sure nothing happened to me’ and that that was how dads showed that they love you.[17]
[15] T32
[16] T33
[17] T34
JT said that when she was just finishing grade 6 and was 11 ½ years old, the family moved to Lock. She said that the accused started working on the railways. She said she wasn’t 100% sure whether he was working for the railways when they were in Elizabeth but when the family went to Lock he was working on the railways. She said that her mother, brother, two sisters and herself went to live in Lock and she described the location of the house at Lock.[18] She also described that she had relatives, as did the accused, in the area of Lock and Cummins.
[18] T35
JT said that her grandparents were still living in Adelaide when she moved to Lock. She gave the residential address of her grandparents at that time. She described the layout of the house at Lock and particularly the bedrooms that she slept in.[19]
[19] Exhibit P2, T37
I have referred to some of the detail give by JT about her early life, move to Lock and the house at Lock. I observe that throughout her evidence, JT provided considerable and generally reliable descriptions of non-contentious matters and events. Notwithstanding her brain tumour, subsequent surgery and other difficulties, she appeared to be an accurate and careful historian. I detected no efforts at embellishment or guessing about matters although I am sure that she may be mistaken about some details as anyone would expect given the effluxion of time. Throughout my consideration of JT’s evidence I have had careful regard to whether or not there was any hint of unreliability because of her brain injury. There was none. On the contrary, she was a good historian and was, in my view, guileless.
JT said that the sexual touching started when they were living at Elizabeth in the sense that she was touched on the vaginal area. She said she was touched ‘mainly only on the outside of her underwear’ and that happened a few times, mainly in the truck.[20]
[20] T41
JT described the sexual touching that occurred when the family were living at Lock. She said the first time it happened was in her bedroom when she was in bed but ‘it seemed to happen anywhere, any room at any time’.[21] She described being touched, the accused rubbing her vaginal area inside her underpants when she was outside, when feeding the chooks or in the shed. She said she was touched more times than she could count. She said that it occurred on any opportunity that he had. She described her mother as spending most of her time in the lounge room in front of the TV. She said that the accused told her that he loved her and that touching her showed her that he loved her and that he was doing what a dad does to show that he loves you. She said that she remonstrated and asked him to stop.[22]
[21] T41, 42
[22] T41-44
JT said that sometimes she was sent to her room as punishment and when she was in her room, the accused would touch her. She said that he came into her bedroom at night, more nights than she cared to count. She said that some weeks it was every night, some weeks half the week. She said it was very rare if there was a night that he didn’t touch her.[23] She said on those occasions her mother was at the house except when her mother was at Weight Watchers meetings.
[23] T44-46
JT described escalating degrees of intimacy with the touching. She described the accused rubbing the outside of the labia and then inside the lips and the clitoral area. She said sometimes he lay alongside her.[24] Sometimes she would ‘wee’ in the bed and she said that he would like it when that occurred. She said that sometimes he would go down and ‘do oral’, use his mouth on her vaginal area and that this occurred whether or not she had urinated.[25] JT said that sometimes the accused touched her ‘exit valve’[26]; (her term for anus) and that he put his finger into her anus.
[24] T46
[25] T47
[26] T47
JT said she never willingly touched him but that he made her touch him on his penis and that she was required to give him oral sex during which he would generally ejaculate.[27]
[27] T48
JT also described progression in the touching. The accused originally used one finger but eventually started to use two. She said that ‘when he penetrated me with his fingers that really hurt’.[28] She described his performing oral sex on her whereby he would bite her on the vagina.[29] JT said that she would call out for her mother but she received no assistance. She said the accused told her that her mother didn’t love her anymore and she believed that because she could not understand why her mother did not come to her aid.[30] JT said that her mother was aware of her wetting the bed and that she was abusive about it.[31]
[28] T49
[29] T50. There was later evidence that the accused had no natural teeth and didn’t always wear dentures.
[30] T50
[31] T51
JT said that oral sex did not commence until she was sleeping in the second bedroom which she had identified on the exhibit.[32] She said that the doors were generally open a little bit and he would close it a bit when he would come in.[33]
[32] T51, Exhibit P2 (Plans of the house)
[33] T52
JT described an incident at the swimming pool change rooms at Lock. She described the manner in which she sat on the accused’s lap during the incident[34] and that she was touched to the vaginal area and the breast area. She described him sitting her on top of groin and moving her around. She said she was approximately 11 or 12 years old.[35] She said that they heard others coming and they ceased the touching. She recalled that on that day the touching continued after dinner, in the kitchen when she was doing the dishes.[36]
[34] T53
[35] T54, 55
[36] T56
JT described offending that occurred on her 13th birthday with particular detail. She recalled the details of her birthday party (including the nature of the birthday cake) and that she was later touched by the accused when she was in the bath. She described the way in which the accused touched her and things he said. She said he exposed his penis and got her to masturbate him.[37]
[37] T56-59
JT said that the sexual touching occurred over the whole time that the family lived at Lock; about three years.
Whilst living at Lock, JT said that her mother would attend at weekly Weight Watchers meetings at Cummins. She said that her mother was attending those meetings before JT turned 13. JT said that when her mother first started going the accused would drive her mother and they would all go to Cummins to either the accused’s parent’s house (who lived in Cummins) or to visit her cousins who lived there.[38] She said that after her mother obtained a driver’s licence she started driving herself to Cummins for Weight Watchers meetings. JT thought it was a mid-week meeting.
[38] T62
JT said that when her mother was at Weight Watchers meetings, the accused told her to get into his bed.[39] She said this happened quite a few times. She described the accused touching her, getting her to touch him on the penis and masturbating him and rubbing her with his penis on her vagina. She described him attempting to penetrate her but said that ‘it wouldn’t fit’.[40] She said he tried this each time she was in the bedroom, ie to penetrate her with his penis. She said this only occurred after her mother started driving herself to Weight Watchers. She said that her mother wouldn’t get home until after 10.30, 11 o’clock at night.
[39] T63
[40] T64
JT gave evidence that she told her brother Ricky that the accused had touched her. She said that this arose in a conversation about the accused’s brother-in-law, Doug, who had been accused of interfering with his own daughter and another little girl. She said that Ricky was asking her about Doug and that she denied that Doug had done anything to her, but she told Ricky that the accused had. She said she didn’t go into details when telling Ricky. She said that Ricky was angry. He was 15 years old. JT said she hated the accused at the time and she thought that Ricky would do something to help her. She said nothing seemed to change but that not long after she told Ricky about it that he was sent to Adelaide to go to school and lived with her nanna at Seaton.[41]
[41] T66
JT gave evidence that Ricky returned during the holidays and he later raped her.[42] The prosecution says that this evidence is relevant not as complaint evidence but because JT said that she didn’t know who else to talk to about what was going on. JT had told Ricky about the accused’s behaviour, he had also abused her and it only made the situation worse. She felt there was no point telling anyone else and that no-one wanted her in the family. She said she wanted the accused to stop what he was doing to her and that she did not want him near her.[43]
[42] T67
[43] T70
JT said that the accused had told her that no-one would believe her and that she wasn’t to tell anyone. She said that the accused said that ‘nearly all the time’. She said she felt terrible about herself and she couldn’t understand why she was being punished. She said she felt punished by her mother. She said she felt no good and not important to anyone.[44] JT said her relationship with her mother was distant.
[44] T71
JT said that the family left Lock when she was 14 years old. She said she had her 15th birthday at Kapunda. She said that the accused worked in the railways at Kapunda but she wasn’t sure why the family moved back to Kapunda. JT described the house at Kapunda as a fibro house, she thought it was a Railway house and she described the front yard and the back yard, but could not recall the internal layout of the house.[45]
[45] T72
JT said that she formed a relationship with a boy called Mark whilst she was living at Kapunda. She said that the accused would ask her questions about whether she and Mark were doing anything sexual. She said that the sexual touching by the accused continued to occur whilst she was in her bedroom at Kapunda. She said the sexual touching continued and got worse.[46]
[46] T74
JT described a particular incident at Kapunda. She had been out watching Mark play tennis. She said that after the tennis Mark had dropped her off and stayed for tea. She recalled it was a Saturday. She said eventually she went to bed and that the accused came into the bedroom and touched her. She said he climbed into her bed and lay alongside her, touching her vagina and she said he ‘then just took it to the next level’.[47] JT described the accused forcing his penis inside her vagina and that it was one of the worst pains she had ever felt in her life. She said she was crying, scratching at him, hitting at him. He told her he wasn’t hurting her, that he loved her and that she was his special girl. JT said that she told the accused not to do it because she had her period. She said he ripped her med (tampon) out.[48]
[47] T75
[48] T76
JT was very distressed as she described this incident. As she described having her period and the accused removing the tampon, she was particularly distressed. In my view, her distress was not feigned and her pain at recalling the events was palpable. This is an example of where I formed the view that JT was telling the truth.
JT said that after that initial occasion, vaginal sexual intercourse occurred on other occasions together with other sexual touchings and oral sex. She said that vaginal sexual intercourse occurred a couple of times a week depending on the day and that continued until she left home. When she lived in Kapunda the sexual intercourse occurred in her room. She said that she turned 16 while she was living in Kapunda.[49]
[49] T78
JT said the family moved to Largs North and she described the layout of that house which is shown in Exhibit P2.[50] JT said the sexual touching continued at Largs North when she was in her bedroom and sometimes in the evening whilst they were watching TV. She described watching TV with a blanket over her and the accused and him touching her under the blanket. JT said she had her 17th birthday at Largs North.[51]
[50] T79, 80
[51] T80
JT said that the accused taught her to drive and during the driving lessons he touched her on the breasts and in the vaginal area. She said that occurred every time they went out for a drive.[52]
[52] T81
JT described a particular incident that occurred at Largs North. She heard her mother and the accused discussing and having sexual intercourse and after that the accused came into her room. She told the accused she didn’t want him to touch her and she called out for her mother whom she believed was awake having just heard her having sex with the accused. The accused had sex with her. She said after that time she moved to the separate sleep-out and it had a lock on the door.[53]
[53] T83
JT said that during an incident at Largs North she was punching and pushing the accused away from her and she bit him on the forehead. She said that he then had intercourse with her and bit her on the breasts and he got rougher with the intercourse.[54] She said that incident occurred in bedroom 3 of the Largs North house. JT said that the roughness by the accused caused her to bleed from the vagina. She said that her sister Judith later asked about the apparent injury to the accused’s forehead and that the accused said, in JT’s presence, that her mother had done this accidentally.
[54] T83, 84
JT described when she left home. She said that she ran away to stay with a friend who lived at Salisbury East. She slept in a car at her friend’s home. She said the next day she awoke and her mother, the accused and the police were there. She said that she took off and asked that the police be told that she wasn’t going home.[55]
[55] T86, 87
JT said that apart from a very brief time, she did not stay under the same roof as her mother and the accused again. Later, when the accused and her mother were living at Gladstone, in late 1989 or 1990, she stayed with them. JT said that she had ‘split up’ with her partner at the time. JT said that she was concerned about staying in the same house as the accused but when she was in the bedroom she put a tallboy/chest of drawers across the door. She said she stayed with her mother and the accused for ‘probably not quite a week’, maybe a week. She said the accused did not touch her on this occasion, she said she threatened him. She said she would have been in her mid to late 30’s.
JT said that apart from this occasion she has had little contact with her family, particularly her mother and the accused.
I asked JT some questions about her brain tumour and how she learnt of that and she described a physical collapse that led to doctors finding the tumour. She told me that she had previously been taking seizure medication and blood thinners but she is no longer taking those. She also said that she used illicit drugs and stopped taking those in February 2000. She said she was very proud of herself for having stopped taking them.[56]
[56] T92
JT was asked about the incident when she first had vaginal sexual intercourse with the accused during which he removed her tampon. She said she was 15 at the time.[57]
[57] T93
Cross examination of JT
JT was asked whether she resented the accused for getting in the way of her relationship with her mother; she denied that.[58] It was put to JT that the accused did not sleep overnight at the Elizabeth South property until after he married JT’s mother. JT said that didn’t accord with her memory.
[58] T106
JT was asked questions about the wedding of her mother to the accused. She said she didn’t know about the wedding until the actual day of the wedding and she denied being upset about her lack of involvement in the wedding.
It was put to JT that at no stage did she ever sit on the accused’s lap and she said that that was quite wrong.[59]
[59] T110
JT was asked about the truck or trucks that were driven by the accused when the family were living at the Elizabeth house. She said that the first memory she had of the accused and a truck was a white Bedford truck when she first met him. JT had no recollection of a red semi-trailer and she said that her first memory was of the white Bedford truck. She said that the accused would deliver bottles of gas or air around Adelaide from that truck.[60] JT confirmed that her memory is that the only truck that the accused had when he touched her was the white Bedford truck. JT recalled going on a trip with the accused to Murray Bridge and that the accused had to drop off some cylinders in the back of the truck. She also recalled being taken around Elizabeth and areas in the metropolitan area. She said sometimes there was a drop off or pick up of other cylinders but she didn’t know whether they were empty or full.[61]
[60] T111
[61] T114
JT was cross examined as to her memory about the various trucks. It was suggested to her that she had not been driven around in a truck with cylinders and that she had only seen it at the depot. She denied that.
It was suggested to JT that she was never alone in the truck with the accused and that he never sexually touched her whilst they were in the truck. JT denied those suggestions.[62]
[62] T119
JT was cross examined about the move to Lock. She couldn’t recall the precise details. JT thought they moved to Lock because the accused had got a job in the railways. JT agreed that she didn’t really want to move to Lock because she would be losing her friends and nanna and poppa. It was suggested to JT that she was upset and angry because of the move to Lock and she said to them words to the effect of ‘you will be sorry, I will get you for this’. JT’s response to this suggestion was ‘no, you have to be kidding me’.[63]
[63] T123
JT did not recall whether the accused had moved to Lock ahead of the rest of the family. It was suggested that at the time of the move to Lock, JT blamed her mother for the death of her grandfather due to the stress of the family moving to Lock. JT denied this suggestion.[64]
[64] T124
JT was cross examined about her recollection of the immediate environs of the house at Lock; particularly whether there was a railway camp close to the boundary fence. JT did not recall that.[65]
[65] T125
JT was cross examined about television reception at Lock. It was suggested to her that for the first 12 or 18 months of the time at Lock, there was no television at all. JT did not agree.[66] She said that they had two free to air channels, Channel 4 and the ABC. JT agreed that the picture wasn’t always perfect but she said that they used to sit and watch ‘Sesame Street, Play School and stuff like that’ before and after school.[67]
[66] T126
[67] T126
JT was cross examined as to the size of the bedrooms and the distance between her bed and the bunk beds where her sisters slept. She described a distance of a few metres or even less; perhaps under 10 feet. JT agreed that the second bedroom was larger than the first. She wasn’t sure whether there was carpet in bedroom 2 but said that in bedroom 1 there was a carpet or a rug. She said that a lot of the house had floor boards. It was suggested to her that the house had lino on the floor. She said she didn’t remember that; she remembered floor boards.[68]
[68] T127, 128
It was put to JT that rather than watching television at night that the family would sit around playing cards and board games. She denied that suggestion.[69]
[69] T128
JT confirmed in cross examination that her mother was almost always at the house, that her sisters were in the room with her during many sexual assaults, that the accused’s and her mother’s bedroom was across the hallway and that she tried to fight the accused off almost every night. JT said that when fighting the accused off she spoke in a normal tone but it got louder. She said that the conversations and communications when he was touching her were not whispers. Sometimes she yelled at him.[70] JT was asked how long the touching would go on for each time and she said ‘sometimes it felt like forever’.[71] JT said it was hard to estimate the time. She answered ‘you are trying to go somewhere else in your head’.[72] JT said she never woke her sisters up. The defence placed reliance upon the alleged circumstances of calling out and frequency, to cast doubt upon JT’s credibility and reliability. I will return to this issue.
[70] T132
[71] T133
[72] T133
JT was cross examined about attendances at Weight Watchers at Cummins. It was put to JT that the whole family including the accused and her mother would go to Cummins for the weekly Weight Watchers meetings. JT agreed that that was so initially but said that things changed after her mother obtained her own driver’s licence.[73]
[73] T139
JT was cross examined about a change of vehicle driven by the accused and her mother. JT couldn’t recall when it was, but she said that there was a change of vehicles when they were living at Lock because they hit a kangaroo with the station wagon.[74] She agreed that the accused was driving at the time. She recalled that her mother had been driving and shortly before her mother and the accused had swapped roles and he became the driver. JT recalled a discussion between her mother and the accused about how lucky it was for them all that they had changed the drivers over.[75] The accused also referred to this incident when he gave evidence.[76] In my view, this matter has no significance to the facts in issue but is an indicator of the accuracy of JT’s memory.
[74] T140
[75] T141
[76] T277
It was suggested to JT that her friend Mark taught her to drive while she was living at Kapunda. It was suggested that the accused never taught JT to drive. That was denied.[77]
[77] T148
JT agreed that the accused had no natural teeth. He had false teeth. JT said that sometimes he wore both the top and bottom teeth, sometimes one or the other or none at all. She said that the biting she described was by the accused without his false teeth.[78]
[78] T149, 150
JT was asked about when she ran away from home from the Largs North house. It was suggested that the reason she left home was because her mother and the accused would not let her girlfriend move into the house. That was denied.[79]
[79] T77
JT said that after she left home she stayed in a car overnight at her friend’s place and then went and stayed at her aunt and uncle’s for five days and then got a flat with some other friends. She said that lasted a couple of months and then she got a flat at Brighton. JT said that she had her first girlfriend when she met VR in 1986.[80]
[80] T155-158
JT was cross examined as to her contact with the accused and her mother after she left the Largs address. JT said she wanted to have contact with her mother but she never wanted to have contact with the accused again. She said ‘That man ruined my life’.[81] JT denied the suggestion that the accused would visit her on a weekly basis while she was in a relationship with VR.[82] JT denied giving the accused rose cuttings. She said she never exchanged anything with the accused but she gave her mother rose bushes because she worked for a rose company.[83] JT was asked if she offered to have the accused stay at her home with VR and she denied this. JT said that she went to stay at Gladstone with her mother and the accused for a short period of time when she and VR had some problems and she didn’t know where to go. She said that was in 1989 or 1990 and she ended up staying at their house for a few days.[84] JT said that she had wanted to stay with another person at Gladstone but that person couldn’t help and that is why she stayed with the accused and her mother. JT agreed that she stayed at Gladstone for some time but she said that she only stayed at her mother and the accused’s house for a couple of days and then moved to another house.[85] She said she didn’t have a problem staying at Gladstone because she was old enough to protect herself from the accused.
[81] T158
[82] T159
[83] T159
[84] T158-161
[85] T161
JT denied attending her mother’s 50th birthday. JT also denied the suggestion that she had an argument with the accused about them refusing to give her money.[86]
[86] T164
JT was cross examined as to her use of the accused’s surname; after her mother’s marriage to the accused, she used the accused’s surname. When she was an adult she changed to a different name and later reverted to the accused’s surname. The relevance of this issue appeared to be that the continued use of the accused’s surname was inconsistent with the conduct alleged by JT.[87] I do not think there was anything in this point. JT explained that she reverted back to the original name because of the practical difficulties that arose from changing her name.
[87] T185-189
JT was asked about her current medication. She said she was taking Oxycontin and that she takes 10 mgs every second day. JT said that she had been taking that medication since 2007 and she is now on a lower dosage. She said that drug helps with the pain relief in her back, lower back and leg. JT said she had taken Panadol and Panadeine Forte. She had a work injury in 2007 to her lower back. JT said that she had used Tramadol and Panadeine Forte. She had also taken Capadex. JT said she hadn’t had adverse effects from that medication. JT said she had taken medication (Oxycontin) at 6.30 am on the day prior to her being asked about that topic. JT denied that medication had an effect on her memory in any relevant way.[88] There was no evidence led as to the effect of those drugs, nor any concession by the witness that they affected her.
[88] T194, 198
JT was asked about whether or not she had any memory difficulties prior to her diagnosis and surgery for the brain tumour. She denied that she had. JT said that after she had the surgery she did have some difficulties remembering things; she said her long term memory was not affected. It was suggested to JT that after her neurosurgery that she reported ongoing difficulties with her memory. JT agreed that she had done so but was referring to her short term memory. JT said that she had had difficulties in the twelve months prior to the brain tumour but that related to her mood rather than her memory. She didn’t recall reporting any memory difficulties to medical staff.[89] JT recalled having a discussion with the neuropsychologist prior to her surgery but JT did not recall telling the neuropsychologist that she had changes in her memory and mood. Defence counsel suggested to JT that she had significant memory problems or that there was damage to brain function as a result of her brain tumour. The witness denied that.
[89] T201
JT admitted that she had used mind altering drugs such as LSD and magic mushrooms. She also said she had smoked cannabis on a regular basis from the age of 18. She denied the suggestion that she had been using drugs right up until the time of her surgery for the brain tumour. She said that she stopped smoking cannabis in 2009 when she met her then partner. She said she had not taken other illicit drugs since 2000 and she said she was very proud of turning her back and ‘walking away from those kind of people’ and drugs.[90]
[90] T206
JT was cross examined to the effect that on 26 February 2010 she had told a neuropsychologist at the Royal Adelaide Hospital that her cannabis abuse started when she was 18 and that she reported ‘only recreational/social cannabis use’.[91] JT emphasised that her recreational use of cannabis ceased in 2009 when she met her then partner. She said that she was not smoking cannabis at the time when she had neurosurgery.
[91] T209
JT was cross examined about her memory problems prior to the brain surgery. JT confirmed that there were times when she realised that her memory had not been functioning correctly and that she had been told information which she didn’t later recall. JT agreed that she would have told the neuropsychologist at the hospital that she became frustrated with herself because she couldn’t remember things such as conversations and tasks.[92]
[92] T211
Counsel for the accused has suggested that I draw an adverse inference from JT’s demeanour as she gave evidence, particularly during this stage of cross examination when she appeared to be frustrated and exasperated at the type of questioning. As I observed at the time[93] JT was asked questions about the time when she had a brain tumour and surgery and she was very upset about that topic (as she was about some other topics) and was sobbing as she gave evidence. Nothing that was said by JT led me to doubt her credibility and reliability. In my view JT was genuinely distressed about recalling a difficult stage in her life when she faced a serious medical condition and had a brain tumour removed.
[93] T212
Further to the topic of mind altering drugs, I asked JT some questions about whether use of those drugs affected her memory. JT denied that there was an effect on her memory as to the events with the accused but said that drugs helped her ‘push the memories back in her head’ so that she didn’t have to think about it. She denied that the use of drugs affected her memory.[94]
[94] T214, 215
Evidence of SS
SS is the accused’s niece. She grew up in Cummins on the West Coast. She is proximate in age to JT. She had met JT in Adelaide prior to moving to Cummins. She saw the accused and others at family gatherings. They were not regular events but occurred on special occasions, Christmas, get togethers and so on.
SS confirmed that there was a weekly Weight Watchers meeting at Cummins. She said that her grandmother attended with her Aunt Ann and that JT’s mother came across from Lock with the accused and one of the other children. She didn’t see JT on those occasions.
SS said that she would see JT at family gatherings. She described her as an angry child; agitated, angry and quite fiery.[95] She recalls limited interaction between JT and the accused. She recalls an instance of the accused coming up and putting his hand on JT’s shoulder where JT reacted by saying ‘don’t fucking touch me’. Her impression was that JT avoided being near the accused. SS lived in Cummins for about 12 months when JT lived there.[96]
[95] T220
[96] T221
During cross examination it was suggested to SS that on Weight Watchers evenings the whole family including the accused, JT’s mother, JT and her two sisters would attend. The witness could not recall that. Later in cross examination she said her memory was that whenever she saw JT’s mother on Weight Watchers evenings she also saw the accused as well.
When cross examined about the interaction between the accused and JT, SS acknowledged that these were large family gatherings. SS said that JT did not interact with the accused.[97]
[97] T225
Evidence of VR
The prosecution called VR who was in a relationship with JT from 1986. She met the accused and JT’s mother. She shared a house with JT for 19 years.
VR denied that they would see the accused on a weekly basis or that he would come and see JT on a weekly basis. She denied that he regularly attended and dropped things off at their home. She never saw the accused and JT exchange rose cuttings. VR denied that she attended the accused’s wife’s 50th birthday. She said that JT gave her mother some bare rooted rose plants.[98]
[98] T232
VR said that the accused and JT’s mother only visited them twice; once when her daughter Kylie was born in 1991. The accused’s wife had made some clothes for the children. The last time she had seen the accused or his wife was around 1991. She never saw any sign of affection between JT and the accused. She said that she and JT visited JT’s mother’s home twice and she did not recall the accused being there.[99]
[99] T233, 234
During cross examination it was suggested that the accused visited the house on a number of occasions to pick things up or drop things off. She said that occurred once. It was put to VR that they made offers for the accused to stay at the house and he declined the offer. She denied that had occurred.[100]
[100] T237
VR was cross examined about her statement to police where she said that they would have visited JT’s mother more than four times. VR said that was a misunderstanding; she said that they visited the accused and his wife twice and ‘they visited us twice’. VR said it wasn’t a ‘visit’ so much as that they saw them. She said that the wording in her statement wasn’t correct.
VR said that there was an argument about JT’s mother’s 50th birthday and that JT didn’t want to go to the party because the accused would be there and they didn’t attend the 50th birthday.[101]
[101] T241, 242
Evidence of the accused
The accused is 72 years old and married to JT’s mother. They were married on 27 May 1971.[102] He still lives with her at Gladstone. He confirmed the movements of the family between Elizabeth South, Lock, Kapunda and Largs North.
[102] Exhibit D5; T246
The accused described his work when living at Elizabeth South. He denied ever taking JT or the children for a ride in any of the trucks. He agreed that at one stage he had a white Bedford traytop truck but said that was not used for transporting liquid air cylinders or gas cylinders; that was a different truck. He said that the white Bedford traytop truck was parked in the driveway of the house. He said that the truck with the air cylinders and so forth was never parked at the house. He said that he did trips to country areas; he described driving the white Bedford truck overnight to Loxton. He said that the maximum he would be away would be two nights. He said that he tried to get the records in relation to his various rosters when he was driving trucks but was unable to locate them given the effluxion of time.[103]
[103] T246-255
The accused confirmed that JT did not attend their wedding; there was a get together afterwards. He said that JT would have been 7 ½ - 8 years old at the time of the marriage.
The accused described the family moving to Lock. He moved there in July 1974 and the rest of the family followed in September 1974.[104] He described the house and he said that the house was quite run down. The accused said that he didn’t disagree with the rough plan of the house at Lock shown in Exhibit P2. There was a railway camp over the fence from the house where they were living where about 50 men lived in campervans and the like.
[104] T259
The accused confirmed that there was an incident with an apparent peeping tom or someone at JT’s window and that the police were called and the children changed bedrooms as a result.[105]
[105] T264, 265
The accused said that they had a TV when they first moved to Lock but said that it didn’t work due to poor reception. He said that it took about 12 months before there was reception although it was very ‘snowy’. He said that early in the piece the TV wasn’t watched much because ‘it hurt your eyes too much’. He said that at night that the family would play cards and games as a family.[106]
[106] T265
The accused was asked by his counsel in respect of the specific allegations made by JT and denied every one of them.[107]
[107] T266-272
The accused said that he was vice president of the swimming association and he explained the set up with respect to the community pool. His role was to fundraise to keep the swimming club going.[108] He said he only supervised at the pool during carnivals when he did timekeeping and that sort of thing. He said he didn’t teach the children to swim because he couldn’t swim himself.[109] He denied the alleged incident in the change rooms at the pool.
[108] T273
[109] T275
The accused recalled JT’s 13th birthday at the Lock house and said that there was a party in the shed and that a friend called Trevor made a cake for JT and observed that in respect of the cake ‘you couldn’t have cut it with an axe’.[110] This evidence, including the detail, is consistent with the evidence of JT.
[110] T278, 279
The accused described additional detail of the set up in the bathroom and the laundry.[111] It is clear that it was a small house. The accused denied any sexual touching of JT in the bathroom or anywhere else.
[111] T279-281
The accused gave evidence of attendance at Weight Watchers meetings. He said that he always drove his wife to the meetings, in other words, he said that he was never at home alone with JT when his wife attended those meetings.[112]
[112] T283-287
The accused described the family moving to Kapunda and the layout of that house. He denied any sexual contact with JT. He said that JT had a relationship with a young man called Mark.
The accused gave evidence about the work he did at Kapunda. He said that he tried to obtain his work records from the railways but he was informed that it was too long ago and those records were not available.
The accused described moving to Adelaide. He said that he had been trying to get a job in Adelaide for some time. The family lived at Largs North and he described the house at Largs North.[113] He denied teaching JT to drive. He described his working hours whilst living at Largs North.[114] He was not able to obtain his work records for that time.
[113] T294-296
[114] T298
The accused gave evidence of circumstances whereby JT moved out of home when the family lived at Largs North.[115] He said that JT had wanted her girlfriend to move in with her, ie into her bedroom, and there was an argument about that and JT left home. This is quite different from the account given by JT. The accused denied that he and JT’s mother went to look for JT, that the police were called and that JT was located in a car that she had slept in.[116] The accused said that JT did not return home to live but he said that JT stayed with her uncle and then both he and his wife helped her find accommodation and furniture. He was asked whether things were amicable and he said yes, that she had settled down.[117]
[115] T300
[116] T301
[117] T302
The accused said that in April 1983 he and his wife moved to Gladstone for his work in the railways. Again, he said that he had tried to get hold of his employment records from the railways but was not able to do so. He said that initially he moved to Gladstone alone as one of his daughters was still at school in Adelaide but that at the end of the year his wife and two other daughters moved to Gladstone with him. At Gladstone, he worked in the railways as a track inspector and used a Toyota road/rail vehicle. He said that whilst he was working with the railways he visited JT when she was living in Salisbury. He said that he dropped off clothing and towels and described the frequency as ‘sometimes twice a week’; sometimes ‘once now and again’. He said the frequency of visits depended on whether he had gear to drop off or pick up. He said he picked up roses that were left out at the front at JT’s home.[118]
[118] T307-309
Significantly, he said that JT asked him to come and stay with her and he declined her offer because he had to have a designated place for the railway vehicle to stay.[119]
[119] T309
The accused said that he retired on 29 January 1993. He said that JT was ‘up’ for his wife’s 50th birthday but she did not stay and that occurred in November 1993. He said that JT stayed at Gladstone in 1989 but wasn’t sure how long she was there because he worked away most of the time. He said on that occasion JT would have stayed with his wife for one or two nights and he was told that JT had had an argument with VR.[120]
[120] T311
The accused said that he did not have contact with JT on his wife’s 50th birthday and he didn’t have any contact with her after that time.
The accused said that when the police came to speak to him he had previously heard of the allegation made by JT and had thought nothing of it until the police came.
The accused was cross examined on the topic of JT previously making an accusation of his sexual abuse. He said that occurred at Gladstone and that VR was with JT at the time. He said he didn’t recall how the topic came up. The accused alleged that if JT got upset ‘she would accuse any people of anything’. The accused said that JT said ‘I’ll get you for that’.[121] The accused said he didn’t have contact with JT again.[122]
[121] T317
[122] T318
The accused was cross examined about his relationship with JT. He said that JT left high school because she used to stir the teachers up but he wasn’t aware of her having any other behavioural problems either at school or around the house.[123]
[123] T319
During cross examination the accused confirmed that the placement of furniture and detail set out in Exhibit P2 was generally accurate although the plan wasn’t to scale.[124] He also confirmed the accuracy of the plan of the Largs residence. He confirmed that he had a white Bedford truck for about two years and that he and his wife did not have a car at that stage..[125] The accused confirmed the seating arrangement in the truck was as JT described it, namely a separate bucket seat for the driver and a bench seat for passengers.
[124] T319-323
[125] T325-328
The accused was asked about the railway camp located over the fence from the Lock house. He agreed that there was a high, solid, galvanised iron fence between the house that they were living in and the camp. He agreed that he had never taken the children to the railway camp and the children wouldn’t have seen it through the fence.
The accused agreed that his younger daughters would go to bed before JT went to bed and that she wouldn’t go to bed for at least an hour after her younger sisters.[126]
[126] T332
During cross examination the accused denied the conversation alleged by SS where he was alleged to have told JT ‘don’t fucking touch me’.[127]
[127] T333, 334
The accused denied that there was an opportunity for sexual touching JT whilst his wife was at Weight Watchers meetings at Cummins. The accused said that he always drove his wife to those meetings.
The accused said he had a reasonable relationship with JT when he lived in Kapunda and that they all acted as a family. He said that JT got on with her other siblings and her relationship with her mother was really good. He said that JT’s moods seemed OK.
The accused was asked how he got on with JT after she left home. He said throughout the 80’s ‘we got on all right’.[128] It was suggested to the accused that when JT was in relationship with VR, he was not in a habit of dropping in or having regular contact and he denied that. He disagreed with the suggestion that JT had limited contact with her mother after she left home but very little contact with him; he said that she had contact with both of them.[129]
[128] T339
[129] T342
Consideration of the evidence and my conclusion
JT alleges many acts of sexual assault of varying types over a long period of time. The accused denies that any touching of this nature occurred at all. There is no room for error between those two positions. In my view, there is no possibility of mistake or confusion. The nature and circumstances of the allegations made by JT are such that a mistake about whether the acts occurred is not possible. Confusion could arise about some detail but it is not possible that JT has erroneous memories or confusion about these events. JT’s abuse of illicit drugs at an earlier stage in her life, her brain tumour and neurosurgery could not explain a confused and mistaken belief about these events.
I did not approach the matter by asking who is lying about the matter. The question for me was whether I am satisfied beyond reasonable doubt as to the truthfulness and reliability of JT. In order to be so satisfied I would need to reject the accused’s evidence as being a reasonable possibility.
The alleged sexual offending aside, it seems that JT’s memories about a number of non-contentious issues are accurate. Even though JT was very young when she first met the accused and thereafter, she has a reasonable memory of events. For example, JT accurately recalled that she didn’t attend the wedding between her mother and the accused; she recalled the white Bedford truck with a bull nose and the type of seating in the front seat of that truck. She recalled the layout of two of the houses. She recalled the detail of her 13th birthday and even the disastrous birthday cake.
Counsel for the accused pointed to a number of matters which should cause me to disbelieve or doubt JT’s evidence. The defence highlighted the unlikelihood of regular sexual assaults upon JT in a bedroom where her younger sisters were sleeping only a couple of metres away. It was pointed out that JT alleges that she remonstrated with the accused, that sometimes she called out for her mother and that her account of events in that regard is inherently unlikely. The defence submitted that some of the alleged offending at Lock was said to occur whilst JT’s mother was at Weight Watchers meetings. It was submitted that the evidence about that topic points the other way, namely that the accused was present in Cummins with JT’s mother during those meetings and there was no opportunity for the sexual assaults alleged by JT on those occasions.
I have carefully considered the arguments of the accused concerning the allegation of JT calling out, resisting the advances of the accused and the accused sexually assaulting JT in close proximity to her sleeping sisters. The accused points to the presence of JT’s mother in the house, the small sizes of the homes and argues that it is unlikely that the offending would have occurred in these circumstances. The accused submits that not only would an offender be unlikely to proceed in those circumstances but if he did, there is a lack of supporting evidence in that regard. I have also carefully considered all of the arguments put to me about JT’s reliability and credibility.
The allegations in this case date back to when JT was about 7 years old. JT is now in her 50s. JT’s evidence is to the effect that she strongly and vociferously resisted sexual advances and sexual touching by the accused. I observe that JT’s claimed resistance is not necessarily a natural reaction by a child to this type of sexual abuse. Very often a victim of sexual abuse is corrupted, confused, flattered and made to feel special by the touchings and additional attention. A child may remain compliant with the wishes of the offender. Children may remain silent or not complain about prolonged sexual abuse. It is well known that many victims of child sexual abuse feel deep shame and self-loathing; they try to distance themselves from any perception of enjoyment or compliance. I also observe that child sexual abuse in a familial setting is often perpetrated in close proximity of a parent or siblings. Sometimes members of a family know of, or suspect, the abuse and do nothing.
I doubt JT’s evidence that she actively, loudly resisted the sexual advances. I do not suggest that she was complicit in this conduct, but I am not sure about her asserted memory of active resistance. I have carefully considered whether in those circumstances I can rely on her evidence to the requisite standard. I am satisfied that JT is otherwise a truthful and reliable witness and these criticisms of her evidence do not cause me to doubt her evidence as to the important allegations.
It was suggested that if the accused had a sexual interest in JT he would be unlikely to have intercourse with her when she had her period. I don’t accept that submission. I do not accept that is inherently improbable.
It was submitted that the accused did not present as inherently untruthful nor that his evidence was unlikely; that he withstood cross examination and that he was not evasive or inconsistent. It was said that his evidence was not unreliable. It was submitted that no ground was given in cross examination and that there was no basis on which I could reject his evidence.
It was correctly submitted that it was not for the accused to explain the reasons for untruthful allegations.
Counsel for the accused stressed that the accused suffered a forensic disadvantage by reason of the delay. I have considered that matter not only in the context of careful consideration of JT’s evidence but also as to the difficulties that the accused may face in defending the allegations. I do not think that the absence of the accused’s work records is of significance. There was no dispute as to the places of work and residence. The problem for proof of the allegations and for the accused is that he does not know a specific time and place for each alleged touching and he did not come to know of the allegations whilst those surrounding events were fresh.
I have given very careful consideration to all of the matters put on behalf of the accused and also, because of the very limited supporting evidence, I have scrutinised the evidence of JT with special care.
I find JT to have been an honest and convincing witness. I find her to be reliable about all matters of significance. I accept that she may be inaccurate about some details as to the circumstances of the offending and as to her response but I accept beyond reasonable doubt her account of the sexual touchings by the accused. Her demeanour and distress as she recounted the events was not feigned. Her distress as she recounted events was palpable.
There was some limited support for JT’s evidence particularly as to her relationship with the accused. Although not extensive, SS’s evidence was to the effect that she observed little interaction between the accused and JT (compared with other children and parents) and that she witnessed an incident of hostility. This evidence is consistent with that of JT. Much more significantly, VR confirmed that over the very lengthy period of her relationship with JT, JT’s relationship with her step-father was hostile. VR’s evidence is quite at odds with that of the accused. VR presented as a sensible, matter of fact witness and I prefer her evidence about her observations of that relationship to that of the accused.
Most of the evidence from the accused were denials of specific allegations of sexual assault. Additionally, he gave evidence of his relationship with JT particularly when she was an adult. I did not believe him in that regard.
Having regard to all of the evidence I do not accept the accused’s evidence, even as a reasonable possibility. My rejection of his evidence does not lead to the view that I accept JT’s account of the sexual assaults, however, for the reasons that I have expressed, I accept her evidence about those matters, beyond reasonable doubt.
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