R v TL
[2024] SADC 4
•1 February 2024
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TL
Criminal Trial by Judge Alone
[2024] SADC 4
Reasons for the Verdicts of his Honour Judge Barklay
1 February 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is charged with two counts of Maintaining an Unlawful Sexual Relationship With a Child contrary to s 50(1) Criminal Law Consolidation Act, 1935. The two complainants are sisters and are the accused’s grandchildren.
JM is the complainant in relation to Count 1. SRM is the complainant in relation to Count 2. It is alleged the accused sexually abused both of his grandchildren when they were each between the age of 8 and 12 or 13.
Verdict: Guilty to Count 1 and Not Guilty to Count 2.
Criminal Law Consolidation Act 1935 (SA) s 50(1), 50(12); Evidence Act 1929 (SA) s 13, s 13BA, s 13BA(3)(b)(i), s 34M, s 34P; Juries Act 1927 (SA) s 7(1)(a); Summary Offences Act 1953 (SA) Part 17 Division 3 referred to.
Brant v The King [2023] SASCA 67; Hoch v The Queen (1988) 165 CLR 292; MDM v The Queen [2020] SASCFC 80; MWJ v The Queen [2015] HCA 74; Palmer v The Queen (1998) 193 CLR 1; R v C, CA [2013] SASCFC 137; R v England (2013) 116 SASR 589; R v Landemeter [2015] SASCFC 3; R v P, S [2016] SASCFC 97; R v Rein (1995) 63 SASR 503 at 452; R v Sluczanowski [2008] SASC 185 ; R v Trabolsi (2018) 131 SASR 297, applied.
R v TL
[2024] SADC 4Introduction
The accused, TL, is charged with two counts of maintaining an unlawful sexual relationship with a child pursuant to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The complainants, JM and SRM, are sisters and are the accused’s grandchildren (by marriage).
The accused pleaded not guilty to the charges and elected to be tried by judge alone (s 7(1)(a) Juries Act 1927 (SA)). For reasons I will explain, I find the accused guilty of Count 1 and not guilty of Count 2.
Charges
I set out the charges.
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
[TL], between the 30th day of August 2009 and the 1st day of September 2017 at Renmark, maintained an unlawful sexual relationship with [JM], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a)Touching her on the vagina on more than one occasion;
(b)Inserting his finger(s) in between her labia majora on more than one occasion;
(c)Exposing his penis to her on more than one occasion;
(d)Causing her to touch his penis on more than one occasion;
(e)Masturbating his penis in her presence;
(f)Performing an act of cunnilingus upon her;
(g)Causing her to masturbate his penis;
(h)Causing her to lick his penis;
(i)Touching her body with his penis on more than one occasion; and
(j)Causing her to watch pornographic material.
Second Count
Statement of Offence
Maintaining an Unlawful Sexual relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act 1935 (SA)).
Particulars of Offence
[TL] between the 8th day of April 2016 and 9th day of May 2021 at Renmark and Barmera, maintained an unlawful sexual relationship with [SRM], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a)Touching her on the buttocks on more than one occasion;
(b)Kissing her on the face on more than one occasion;
(c)Causing her to watch pornographic material; and
(d)Causing her to touch his penis.
Elements
All elements of an offence must be established beyond a reasonable doubt before there can be a verdict of guilty. The offence of maintaining an unlawful sexual relationship with a child has four elements:
(1) The accused knowingly maintained a relationship with the complainant during the period in which the particularised unlawful sexual acts occurred;
(2) The accused engaged in two or more unlawful sexual acts with the complainant in the course of the relationship;
(3) The accused was an adult during the period in which the particularised unlawful sexual acts occurred; and
(4) The complainant was a child under the age of 17 years during the period in which the particularised sexual acts occurred.
TL is JM and SRM’s grandfather (by marriage). He maintained a relationship with both complainants during the relevant period relevant to each charge. TL was an adult, and JM and SRM were children at the time of the alleged offending. I am satisfied that elements one, three and four are established beyond a reasonable doubt, concerning both charges.
The main issue in contention in relation to both charges is element two and whether the prosecution has established, beyond a reasonable doubt, that TL engaged in two or more of the particularised unlawful sexual acts against JM and SRM during the respective relationships.
An unlawful sexual act means any act that constitutes or would constitute a sexual offence: s 50(12) of the Criminal law Consolidation Act 1935 (SA).
In relation to JM, the prosecution alleges the following unlawful sexual acts:
(a)Touching her on the vagina on more than one occasion;
(b)Inserting his finger(s) in between her labia majora on more than one occasion;
(c)Exposing his penis to her on more than one occasion;
(d)Causing her to touch his penis on more than one occasion;
(e)Masturbating his penis in her presence;
(f)Performing an act of cunnilingus upon her;
(g)Causing her to masturbate his penis;
(h)Causing her to lick his penis;
(i)Touching her body with his penis on more than one occasion; and
(j)Causing her to watch pornographic material.
Particular (a) is alleged to be an indecent assault; (b), (f) and (h) are alleged to be acts of unlawful sexual intercourse; (c), (e) and (j) are alleged to be acts of gross indecency; (d) and (g) are alleged to be acts of gross indecency by inciting or procuring JM to commit an act of gross indecency with the accused. In relation to (i) for reasons that I will explain, I am not satisfied as to that particular. I indicate now that that particular has not been proved.
The offence of indecent assault (particular (a)) requires the prosecution to prove that the accused touched the complainant and that the touching was voluntary and deliberate, intentional, and indecent according to contemporary community standards. Indecency requires sexual connotation. Consent is no defence to this charge. There is no dispute that if the accused touched JM’s vagina in the way alleged, it would amount to an indecent assault.
The offence of unlawful sexual intercourse (particulars (b), (f) and (g)) requires the prosecution to prove that the accused had sexual intercourse with the complainant when she was under the age of 17 years. There is no dispute that if the accused put his fingers between JM’s labia majora, performed an act of cunnilingus upon her or caused her to lick his penis (sexual intercourse has been held to encompass the licking of the penis: R v Rein (1995) 63 SASR 503 at 452 per Cox J), given her age at the time (under 17 years), that the offence would amount to unlawful sexual intercourse.
The offence of gross indecency requires the prosecution to prove that the accused performed a grossly indecent act (particulars (c), (e) and (j)) according to contemporary community standards or incited JM to perform a grossly indecent act with him (particulars (d) and (g)). JM was under the age of 16 years at the time. The act must be voluntary and deliberate. Indecency requires a sexual connotation. Consent is not a defence. There is no dispute in this case that if the accused exposed his penis to JM in the shed, masturbated in her presence or caused her to view pornographic material, it would amount to an offence of gross indecency. Similarly, there is no dispute that if the accused caused JM to touch his penis or caused her to masturbate his penis, he would be guilty of gross indecency on the basis he incited JM to perform an act of gross indecency with him.
In relation to SRM, the prosecution alleges the following unlawful sexual acts:
(a) Touching her on the buttocks on more than one occasion;
(b)Kissing her on the face on more than one occasion;
(c) Causing her to watch pornographic material; and
(d) Causing her to touch his penis.
Particular (a) and (b) are alleged to be indecent assaults; (c) and (d) are alleged to amount to the offence of gross indecency. I have already set out in the context of JM’s case what the prosecution must prove in relation to those offences.
There is no dispute that if it is proved that the accused touched SRM on the buttocks or tongue kissed her in the way she describes, the offence of indecent assault is made out. Similarly, there is no dispute that the offence of gross indecency would be established if the accused caused SRM to view a photograph of his penis, telling her it was his surprise for her, or bounced her up and down on his penis in her swimming pool.
General directions
The prosecution bears the onus to prove each element of the charge beyond a reasonable doubt. TL, at all times, is presumed to be innocent unless I, as the trier of fact, were to be satisfied of guilt beyond a reasonable doubt. It is not enough for the prosecution to show a mere suspicion of guilt or to demonstrate probable guilt. Anything short of proving the case beyond a reasonable doubt and the verdict should be not guilty. A reasonable doubt would be one that I am prepared to entertain after full and careful consideration of all the relevant evidence.
TL elected not to give evidence in his defence. TL was not obliged to have done so. That was his right, and, as it was his right, his silence must not be used against him, nor can any inferences adverse to him be drawn from his choice not to give evidence. His silence cannot be treated as an admission or used to fill gaps in the prosecution’s case. I must not use TL’s silence against him, and I have not done so.
Both JM and SRM gave evidence via audio visual link. JM had a court companion with her. SRM had a canine support dog and the canine’s handler with her. I direct myself that I must not draw from the special arrangements that were put in place during the evidence of JM and SRM any inference adverse to the defendant, and I must not allow the arrangements to influence the weight given to that evidence. I have not done so.
Motive
It was submitted that SRM may have a motive to lie. The details of that motive will be explained in more detail later in my reasons. It is enough to say at this stage that the defence submitted that SRM was hit and verbally abused by her parents at different times. SRM complained at a time when she was in trouble or thought she would get into trouble. The defence contended that the fear of violence provided a motive for SRM to fabricate an account about the accused, to avoid being punished.
In relation to JM, the defence contended that JM having heard about her sister’s complaint about TL provided a motive for her to fabricate her account (in particular about the penis photograph) to assist SRM.
I will discuss this issue later in my reasons. At this point, I direct myself as to the approach to be taken to this type of evidence. Where a witness may have a motive to lie, that is a matter that may be highly relevant to an assessment of that witness’s credibility. However, a complainant’s account gains no legitimate credibility from the absence of evidence of motive: Palmer v The Queen (1998) 193 CLR 1 [6] – [7]. The general principles surrounding this area of the law were collected by Justice Duggan in R v Sluczanowski[2008] SASC 185 at [38]- [43]. I have taken those principles into account. I direct myself in the terms endorsed by the Court in R v P, S [2016] SASCFC 97, at [95] (Nicholson, Parker and Lovell JJ):
A motive to lie is relevant to the credibility of the complainant. However, even if you reject the alleged motive for the complainant to lie, that does not mean that you would find that the complainant is being truthful. The absence of evidence of a motive to lie does not strengthen the prosecution case. It is neutral. Lies can be told for no apparent reason. Crucially, it is not for the accused to provide a motive for the complainant to lie. At all times, the prosecution bears the onus of proof beyond reasonable doubt. The prosecution must satisfy you beyond reasonable doubt that the complainant was telling the truth.
Complaint evidence
In this case, the prosecution led evidence of complaint relating to JM and SRM. The relevant principles and approach to be taken to that evidence were distilled from various authorities in R v P, S [2016] SASCFC 97, at [22] – [26] (per Nicholson, Parker and Lovell JJ) (R v P, S):
Once the content of the conversation is ascertained an assessment must be made as to whether what was said is referrable to a charge on the Information. Complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count unless it can be seen to be referrable to such an offence. That is not to say that a complaint must necessarily refer to the details of the occasion charged in the count under consideration.[10] It need only be referrable in a general way as it would be “unrealistic to expect victims of sexual offences to make a complaint with a high degree of specificity”.[11] However, what was said must encompass generally the conduct alleged in a particular count.[12]
…
Section 34M(6) contemplates that an “elaboration” of an initial complaint may be admissible. In order to determine whether there has been an elaboration the content of the initial complaint must first be identified. Any “elaboration” of the initial complaint must be sufficiently connected with the initial complaint so that the whole can reasonably be viewed as one complaint. Further, an elaboration of the initial complaint will only be received if it is capable of rationally affecting the assessment of the credibility of the complainant.[14]
…
If the evidence of complaint is admitted, the Judge must direct the jury in accordance with the requirements of section 34M(4). It should be borne in mind that ‘consistency of conduct’ includes both the consistency in making the complaint when it would be expected to be made and consistency between the wording of the complaint and the conduct alleged”.[17] …
I bear those principles in mind. As will appear later in my reasons I have directed myself in accordance with the requirements of s 34M(4) Evidence Act1929 (SA).
Cross admissibility
At the commencement of the trial, in refusing an application for separate trials, I ruled, based on the statements, that the evidence of JM and SRM was cross-admissible because the similarity in the accounts of both complainants gave rise to improbability reasoning. However, the evidence led at the trial differed in several respects from the statements. Specifically, JM gave no evidence of being touched on the bottom, and SRM’s evidence changed from saying the accused tongue kissed her for years, to only being tongue kissed once. The circumstances in which each said they were shown pornography became even more different at trial than it appeared on the papers. Uncharged acts that the accused touched JM’s inner thigh (said to be similar to what SRM said) did not come out in evidence. The way the evidence came out has caused me to review my decision. I do not think the evidence gives rise to similarity of account reasoning. I have not used similarity of account reasoning when considering either charge.
When considering Count 1, I am not satisfied that the evidence of the much more limited conduct with SRM is capable of establishing a particular propensity or disposition that would have strong probative force as circumstantial evidence of the charged offences against JM. The only way I have used SRM’s evidence when considering the case against JM, is by taking into account conversations JM had with SRM about the offending when assessing the defence argument as to whether JM had a motive to lie. In the same way, I have considered JLM’s evidence (complainants’ mother) about what she told JM that SRM said for the same purpose. I have not relied on what was said between JM and her sister or mother for the truth of anything said. The only potential relevance of the evidence is to inform JM’s state of mind and, in turn, whether that provides some evidence of motive. I have not used this evidence to support JM’s credibility or reliability in any way.
When considering Count 2, for reasons I will explain, I am satisfied beyond a reasonable doubt the accused offended against JM in the way she described. Having made that finding, I am satisfied that the accused had an innate behavioural proclivity to commit the kind of offences alleged by SRM. I have taken that particular propensity into account, together with the evidence directly bearing on Count 2, in determining whether or not the evidence has proved the offending alleged against SRM. The duration of the sexual relationship he maintained with JM (between 8 and 13 years old), along with, the frequency and nature of his sexual activity, gives the evidence strong probative value as circumstantial evidence of a sexual motivation to commit offences of a similar kind towards SRM. I am satisfied the evidence is admissible pursuant to s 34P(2)(b) Evidence Act 1929 (SA). I am satisfied that the evidence of predisposition outweighs its prejudicial effect. I am satisfied that the permissible use of the evidence can be kept sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose (s 34P(3)). I have not reasoned that just because the accused offended against JM, by reason of that bare fact alone, that he is more likely to have committed the offence against SRM.
I have considered SRM’s evidence about conversations she had with JM in assessing a defence argument about whether her knowledge of what JM said happened to her may have provided her with a motive to lie. In the same way, I have considered JLM’s evidence about what she told SRM concerning what JM was saying TL did to her. I have not relied on anything said between SRM, her sister, and mother for the truth of anything said between them. The only relevance of the evidence is to inform SRM’s state of mind and whether that provides some evidence of motive. I have not used this evidence to support SRM’s credibility or reliability in any way.
General background
The following background evidence was not in dispute. JM was born on 31 August 2001 and was 21 years old when she gave evidence before me. SRM was born on 9 April 2008 and was 14 years old when she gave evidence before me. JLM is the mother of JM and SRM. SM is the biological father of SRM and the stepfather of JM. Shortly after SM married JLM, JM adopted SM’s surname. JLM’s mother is DL. DL married TL in September 2000.
During their childhood, JM, SRM, and their younger siblings would visit the accused’s house with their mother and father. The accused had a shed at the back of his property where the children would go and play games, craft, and spend time with TL. There were times when JM and SRM would be alone with TL in the shed.
According to both the complainants’ parents, the children would sleep over at the accused’s house occasionally, both with their siblings and on their own. Apart from visiting the accused at this home, the accused and his wife would visit JM and SRM’s house. At Christmas, the accused and his wife would come to the complainants’ home and stay for a few days. The ‘M’ family has had an above-ground pool at their house since at least 2017. It was not disputed that the accused did swim in the pool with the children from time to time.
It was not disputed that SRM complained about the accused touching her inappropriately in late September 2020. The details of the complaint were disputed, but the fact of the complaint was not disputed. There was no dispute that SRM complained again to JLM in May 2021, which led to a further conversation between JLM and JM, during which JM complained to her mother about what TL had done to her. The matter was thereafter reported to the police.
On 17 May 2021, the police arrested the accused and searched his home. During the search inside TL’s bedroom, the police located pornographic DVDs on the left-hand bedside cabinet and some pornographic magazines in a dresser unit on the left-hand side of the bed.
JM (complainant Count 1)
I turn to consider Count 1, which relates to JM. In considering this charge, I will set out JM’s evidence in chronological order. I will refer to the other evidence relevant to an assessment of her evidence, during the course of my discussion of her evidence. Where possible, I will make findings during the course of her evidence as the issues arise. In making my findings, I make clear that at all times I have considered the whole of JM’s evidence in coming to the conclusions I have about her evidence. My findings are made having regard to the whole sequence of events and are not made in isolation. That is, I have taken into account what the defence submitted were the compounding improbabilities in JM’s evidence.
As I have said, JM was 21 years old when she gave evidence before me about events she said occurred when she was between 8 and 13 years old. JM explained that she would spend time with TL in his shed at his home, where she would play craft and build things. She would often be alone with the accused in the shed while her mother remained with the accused’s wife in the main house or on the back verandah. Sometimes, her mother would drop her off at the accused’s house and leave her there. There was no dispute about that, and I am satisfied beyond a reasonable doubt that that occurred.
Hide the keys game
JM said that apart from playing craft, at some point, she started playing a game with TL where he would hide a set of keys around the shed, and she would then have to find them, or she would hide them, and the accused would be the one searching for the keys. When she was searching for the keys, the accused would tell her if she was ‘hot’ or ‘cold’ as she searched around the shed. She said when she was about 9 years old, the location of where TL hid the keys began to change. She said that TL started hiding the keys in his pants, and the accused would encourage her to retrieve the keys from his pants. Initially, she would reach into the accused's pants and find the keys between his pants and underwear. That then changed to the accused putting the keys inside his underwear, which then required JM to put her hand inside his underwear to collect the keys. She said that TL would reassure her that it was okay to put her hands in his underwear to get the keys. She said:
AWhen they started to go inside of his jocks, when I couldn't find them on the outside, he'd tell me that it was - sorry - it was inside of his jocks, reassuring me that it was okay to grab them. I used my hands to grab the keys.
She recalled and described what she felt as she retrieved the keys, including the warmth of his body, the ‘scratchiness’ of his pubic hair, and the contrast of the cold key (when she felt it) as compared to the warmth of his body. I set out her evidence:
AAfter a while of reaching inside of his pants, not his jocks, the keys moved to inside of his jocks and I was required to grab them. When I reached down at this particular time that I'm recalling, his body was quite warm. That's how I knew that I'd touched his body.
…
AStarting from where his pants - sorry, where his pants touched his body, started around from his - below his belly button, it was warm, and as I went further and further, the warmth grew and there was a scratchy feeling of his pubic hair when I kept going down further into his pants. I knew I found the keys when I felt the cold metal because there was a difference in temperature from the keys to his body.
She said that after the first time she retrieved the keys from his underwear, the keys would often be in his underwear, and she would collect them from there. As time went on, when they played ‘hide the keys’, she said it would take less time before the keys would be in his pants. She said he might hide them once or twice around the shed before they would be in his pants. She said TL would sometimes lower his pants slightly to indicate where the keys were.
Between a few weeks to a month after TL had been hiding the keys in his pants, when it was JM’s turn to hide the keys, with some prompting and encouragement from TL, she put the keys in her pants. JM explained that when the accused would take the keys from her pants, she said it was different to the way she took them from his pants. I set out her evidence on this topic:
AThe difference between myself grabbing the keys from [TL] and him grabbing mine from my pants was the speed as the main thing. I would grab them quite quickly, whereas [TL] would leave his hand lingering inside for a lot longer before he grabbed the keys.
…
AIn a particular incident that I remember he reached his hand into my pants and when he - I could feel the coldness of the keys on my vagina but that coldness disappeared when he grabbed the keys and he, on the way of getting the keys out of my pants, dragged a finger - sorry - dragged a finger through the folds and then brought his hand out of my pants.
QHow did it make you feel when you played this particular game with [TL] when he retrieved the keys from your underwear.
AIt was a lot of embarrassment, he was going to a private place of mine, but it also made my body quite hot, in the sense that I didn't know how to feel about the sensation of his hand being inside of my pants. It was a new sensation to me.
She said the ‘key game’ went on for months. JM explained how being touched by TL made her feel embarrassed, but at the same time, she was curious about how it made her feel. She said:
AAgain, quite embarrassed because they were his private parts and my private parts, but there was also an element of curiosity that I would feel seeing his penis and the - trying to understand the feeling that I felt when he would touch my vagina.
QIf you can explain that to me a little bit more. What do you mean by the feeling that you felt when he touched you on the vagina.
AGoing back, I felt very hot. It - it felt embarrassing to have his hand down there but, at the same time, it was a new feeling, not a bad feeling, a nice feeling.
Despite having mixed feelings about the hide the keys game and associated touching, she said she still felt safe with the accused and affectionate towards him. She described how she felt about what was happening in the shed in the following terms:
AIt made me feel, in a way, safe. This zone was - this shed was classed as a safe zone. I knew that, if anything, I was safe in there. Nothing bad would happen. There was no resentfulness, nothing. It was me and my [TL].
The prosecution's submission was that the detail about the hide the keys game, including her ability to describe her feelings about what was happening and her description of feeling the warmth of his body in contrast to the keys, indicated a truthful account.
The defence submission was that JM was an adult and an intelligent, articulate young woman, evidenced partly by her studying teaching at university. Her intelligence allowed her to give a detailed account, which might have had the hallmarks of a truthful account if she were a child, but given that she was an articulate, intelligent adult, the detail of her story had less weight than might otherwise have been the case.
In my view the account given by JM about the hide the keys game was compelling both because of the level of detail and her presentation when she gave it. I bear in mind the limited weight to be placed on a positive finding about a witness’s demeanour. While it is relevant that JLM was an articulate, intelligent adult when she gave her evidence, I am not persuaded that that is a reason to discount the persuasive nature of her evidence on this topic.
Exposed his penis to her
Aside from the ‘hide the keys’ game, the shed became a common place for TL to expose his penis to JM. TL would watch JM whilst she was doing something in the shed, and would take his penis from his pants and expose himself.
QCan you remember any details of the other occasions.
AIt wasn't uncommon, if we were alone in the shed, for his penis to come out. It became common that I wasn't looking for it any more, it was just there.
…
QWhen [TL] had his penis out on these other occasions can you recall, what, if anything, he would be doing.
AOften observing what I was doing.
The casual way she described not looking for his penis anymore as it was ‘just there’ had a ring of truth to it.
Penis on her back
JM described that on another occasion, while sitting on TL’s lap playing craft, she felt his penis on his back. She described it in this way:
…It took a little while to do but eventually [JM] I ended up sitting on his lap, my shirt was hitched up and I could feel something on my back and I knew it wasn't his hands because I could see them, because they were helping me. It wasn't the feeling of a smooth surface on my back, it was - sorry - and, you know, I could feel it on my back and, as I explained before, I knew it wasn't his hand and since the surface wasn't smooth and didn't feel like his stomach or his leg, as I was sitting on them, I knew it was his penis.
She could not recall any other occasion when the accused put his penis on her body. At the same time, she was not sure if that happened on more than one occasion. During cross-examination on this topic, she gave the following evidence:
QWhy is it that you say with any confidence that it was [TL]'s penis that was up against your lower back on that occasion.
AAt the time of the occasion that we're talking about, his hands at the time were helping - either helping me do my arts and crafts at the time, talking about the caravan. Afterwards, I could feel his hand on my stomach, as I talked about earlier. The distinguish that I had that it was his penis, is that the skin-to-skin contact that we had was not a smooth surface but rather a sort of - sorry, I'm just trying to describe it - more of a bulging sort of feeling on my back. It wasn't a smooth-to-smooth contact that skin to skin normally does if it was on stomach to back.
QThat's the first time just then, [JM] that you've ever used the word 'bulging' to describe what you say you felt up against your lower back on that occasion.
AThat's correct, because I can't think of the correct term to use.
QWell, are you saying that is the correct term to use or it's not the correct term to use.
AI'm not a hundred-per-cent sure what word to use to describe the feeling on my back.
QDo you say it wasn't the feeling of a smooth surface.
ANo.
Q.Can you say that it wasn't, for example, [TL]'s stomach or his belly that was up against your lower back.
A.It didn't feel like, as I said before, a smooth surface. There felt more of a curvature type of feeling. It didn't feel like his stomach. There was more definition than just his stomach, is what I'm trying to describe.
QAnd, again, 'curvature' is not a word that you've ever used prior to just a moment ago to describe what you felt, is that right.
ANo, that's correct.
QDo you accept it's possible you didn't feel his penis, it wasn't his penis that you say you felt up against your lower back.
ANo, I believe it was.
QIs it possible that it wasn't.
AI'm not sure, but I believe it was his penis.
The defence submits that first, her description is too vague to allow for a finding that the accused did put his penis on her back. Secondly, JM’s concession that she was not sure if it was his penis against her back, but she ‘believed it was’ reflected an uncertainty on her part. Thirdly, it was submitted that it was not until she came to give evidence that she described what she felt on her back as ‘bulging’ or feeling the ‘curvature’ of something against her back. Finally, the defence say that in the opening, the prosecutor said that evidence would be led through JM that the accused touched her body with his penis on more than one occasion, which was not supported by the evidence, and I should treat the opening, to the extent it was inconsistent with JM’s account, like a prior inconsistent statement.
I accept the defence submission that the description given by JM does not allow me to be satisfied beyond a reasonable doubt that the accused did put his penis against her back. Whilst she did mention the words ‘bulging’ and ‘curvature’ for the first time in evidence, I do not see anything sinister in that I think it simply reflects her trying to provide greater detail in her evidence as to what she recalls she felt. To the extent that her evidence was inconsistent with the opening, I note that JM did say that she was not sure if the accused had put his penis on her back more than once. Although I accept that JM genuinely thinks the accused’s penis was placed on her back, there was an element of reconstruction and uncertainty about her evidence. Even when I consider other parts of her evidence, which I do accept, I am not prepared to make a finding that the accused did place his penis on her back. I make clear that I do not think that JM has fabricated her account about the accused’s penis being put against her back. Based on her description, I am simply not prepared to make a positive finding about that.
JM said that while she sat on TL’s lap, on the occasion when she felt what she thought was his penis against her back, the accused also placed his hand under her top and touched her stomach. The prosecution effectively submitted that the touching on the stomach amounted to an indecent assault, which was an uncharged act. In light of my findings about this incident, even if the accused did touch her on the stomach (which I accept he did), I am not prepared to find it was in circumstances of indecency. I have not had regard to this evidence in coming to my conclusion about JM’s honesty.
The defence submitted that there was an inconsistency between the prosecution opening (that JM would give evidence that the accused would touch and squeeze JM’s bottom) and the evidence at trial (that JM did not give evidence about TL squeezing her bottom). I have considered whether either on its own, or in combination with the other inconsistencies that this should cause me to have a doubt about JM’s credibility and reliability. I am not persuaded that it does. When I consider the evidence she gave, which involved much more serious and traumatic offending (if accepted), it is easy to see how JM might forget to mention that detail.
Told not to tell anyone
JM gave evidence that the accused initially told her that what happened between them in the shed was their secret and that she couldn’t tell anyone about it. As she got older, she said the accused would go ‘to more of the bribery way to ensure that I wouldn’t say anything along the lines of if I told anyone, my family would hate me’. She said the accused started giving her money to keep her quiet. She could not recall how old she was when he started bribing her with money. She described a jar the accused would put money in for her, which he kept on top of the fridge in the shed. He would mention sometimes that he had put money in the jar after something happened between them in the shed. On other occasions nothing might have happened, and he would mention the money in the jar. She said he would sometimes hand her money with ‘either a smile or a wink’. At birthdays, he would pull her aside and say ‘there’s something extra in there’ and she took that to mean there was money in the jar. She never told anyone about the money because he told her not to.
Apart from giving her money, he would also tell her that if she told someone, he would be sent away, he wouldn’t be able to see anyone, and everyone would be disappointed. JM said that when she was about 3 years old, her cousin would only let her play his guitar if she touched his penis. She told her parents about it, and her parents got very angry with her. She said the accused knew about this and had said to her that if she said anything about what he had done to her, the family would be angry with her – just like they were when she complained about her cousin.
The defence made several criticisms about her evidence in this regard. First, during her evidence at trial, she said that the accused told her not to tell anyone about the money he gave her (as opposed to what he had done to her), whereas she did not mention that in any of her statements to the police. I find this to be an inconsequential omission and readily understandable.
Secondly, the defence submitted that JM said at trial that she would buy lollies with the money the accused gave her, yet in her statement to the police dated 16 May 2021, she said that she could not recall what she did with the money the accused gave her. It was agreed that she said nothing about what she spent the money on in her subsequent five statements. The fact that she could not recall what she spent the money on, again is not an omission of any real consequence. She may not have recalled but later recalled when she gave her evidence. She may have been assuming she bought lollies when she gave evidence. Either way, in my view, this is not an important omission.
Thirdly, the defence pointed to the inconsistency between the prosecutor's opening that the accused would put between $20 and $100 in the jar for her. In contrast, in JM’s evidence, she said she could only recall a few five-dollar notes. In my view, the difference in denominations between her evidence and the opening is a minor inconsistency.
Fourthly, her evidence that the accused said to her after the hide the keys game that it would be their ‘secret’ and that she could not tell anyone was not something she had mentioned in her statements to the police. While JM agreed she had not said that in her statement to the police, in my view, again, this is a minor omission.
Finally, the defence submitted there was no real explanation as to how her relationship with the accused went from amiable and her feeling safe with him to the threats, she described to keep quiet. Without accepting that there was no explanation for the change, an obvious one is that she was getting older, one would not expect a child to be able to describe why an adult’s approach changed. There may be no defining event that caused the accused to seek to ensure her silence. I reject this submission as having any meaningful effect on an assessment of JM’s credibility, either alone or in combination with the whole of her evidence.
Anaconda movie
JM gave evidence of a particular occasion when she was about 9 years old. She had a nightmare after watching part of a movie called Anaconda with her grandmother at TL’s house. She said that she got out of her bed (she was in the kids room) and proceeded to get into bed with TL, because she was terrified. She went to TL’s room because it was closest to her, and she was scared to go further down the hallway to her grandmother. When she got into the accused’s room, she said the accused told her she could ‘take it off’ if she wanted to. She said she did not know what he was referring to, and that she did not take anything off and nor did he. She did say, speaking generally, that the accused would sleep naked, but if they went into his room, he would put on a gown. She identified the gown by reference to a photograph that was tendered. JM did not say that the accused was naked when she got into the bed, although she said he was not wearing a top. Whilst there may be an inference that the accused was naked, there is a large degree of speculation about that. I am not prepared to make that finding. I proceed on the basis that the accused was clothed, at least from the waist down. I accept that JM did get into bed with her grandfather. I do not find that TL was naked when she got into bed with him or that TL saying ‘take it off if you want’ had any sexual connotation to it. I have treated the evidence as being entirely innocent. No submission was made by the prosecution during the final address that JM getting into bed with the accused gave rise to any unlawful sexual act, nor was it suggested that there was anything discreditable about anything that occurred. A submission to the contrary in the prosecution opening was not maintained.
I only mention this evidence because of the criticisms the defence made about JM’s evidence on this topic.
First, the defence said that JM said in her evidence that she had watched the Anaconda movie at the accused’s house on the night that she had the nightmare, whereas she had not mentioned the location where she watched the movie in any of her statements. However, it was accepted that she had mentioned in her statement that she was scared about the Anaconda movie while at TL’s house. It is debatable whether her evidence in court was inconsistent with her statement. I note nothing was said about it in the defence address. However, the further Statement of Agreed Facts listed the failure to specifically mention watching the movie at the accused’s house on the night she had the nightmare and went to TL’s bedroom. In all circumstances, if it amounts to a prior inconsistent statement or the failure to mention where she watched the movie amounts to an inconsistency, it is inconsequential. I have not used the fact that she did say in her statement that she was scared about the Anaconda movie to bolster her credibility in any way. I have not used a prior consistent statement to support her credibility. The only use I have made of the evidence is to assess any inconsistency in what she said to the police when compared with her evidence in court when assessing her credibility. I have not relied on the evidence for the truth of the assertions contained in the out-of-court statements.
Second, the defence submitted that although, in her evidence, JM said she went to TL’s bedroom (as opposed to her grandmother’s) because TL’s bedroom was the closest to her and was scared to go down the hallway, she said in her statement to the police that she went to TL’s room because her grandmother only had a single bed. JM said that when she gave evidence, she had forgotten her grandmother had a single bed. I note it was never put to JM that she did not get into bed with the accused. The said inconsistency is minor at best.
The inconsistencies raised by the defence in relation to the circumstances surrounding how JM came to get into the accused’s bed have not caused me, either on their own, or in combination with other inconsistencies (which I will come to), to have a doubt about JM’s credibility or reliability about the sexual offending.
Last time
JM said that apart from visiting the accused’s house with her family (when she would play in the shed), she would also occasionally stay the night at the accused’s house. She could not be sure how often but said it was around monthly. Sometimes, she would stay there on her own, and sometimes she would stay there with her siblings. JM said that the last time there was any sexual abuse was when she slept the night at the accused’s house. TL’s wife stayed elsewhere that night, leaving the two alone at the house. Before coming to the details of the sexual abuse, it is convenient to consider the defence submission about JM’s evidence as to how often she would stay at the accused’s house.
The defence argued that JM’s evidence about having stayed at the accused home on her own before the night she said she was sexually abused was inconsistent with her first statement to the police that all the other kids had gone to TL’s house for a sleepover but she hadn’t yet and in her second affidavit she told the police the idea of staying the night at TL’s house was because her other siblings had all had sleepovers but she hadn’t yet. It was suggested that what JM intended to convey in her statement was that the night the sexual abuse occurred was the first time that she had stayed at the house. JM denied that that was what she meant and explained that what she meant was that the other children had had a sleepover around that time, but she hadn’t yet. The defence criticised her for not qualifying what she meant in her statement by the word yet.
The defence also points to an inconsistency in her evidence at trial that she had more than five sleepovers at the accused house. In her first statement to the police, she said she had only slept over on a couple of occasions.
JM’s parents’ evidence was that the children would regularly sleep over at the accused’s house. I accept JM’s evidence when she says that she had stayed the night at the accused’s house before the night it is alleged that he sexually abused her. I accept her explanation as to what she intended to convey in her statements to the police on the topic. The difference in her description of staying overnight a couple of times in her statement, to saying it was more than five times in her evidence is a difference with little meaning. I note that it was never disputed that JM did stay the night alone at TL’s house.
Returning to the detail of the sexual abuse on the night she stayed at the accused’s house. JM gave evidence that, at one point, the accused went to his bedroom and retrieved some pornographic magazines and DVDs and brought them into the lounge room. He showed her some pornographic magazines and played a pornographic DVD. While the movie was playing, JM said the accused masturbated her, performed cunnilingus on her, masturbated himself, then caused JM to masturbate him and finally caused her to fellate him.
Pornography – location
An issue at trial was whether JM saw where the accused got the pornographic material from before he showed it to her.
The following evidence is relevant:
QWhen [TL] walked away from the lounge room, did you go with him or did you stay in the lounge room area.
AI'm not a hundred-per-cent sure.
QIn any event, did you make an observation that he went into his bedroom.
AYes.
QIf you can recall, what did you see, if anything, of [TL] going into his bedroom.
AI'm not a hundred-per-cent sure if it was before or after this particular incident, but I know that he went to his desk - that draw on the left-hand side of his bed. In the top drawer is where he kept the pornography.
The location of where the pornography came from was relevant because when the police searched the accused’s bedroom following his arrest, they located pornographic DVDs in the left-hand side bedside table and some pornographic magazines in the bottom left-hand drawer of a dresser on the left-hand side of the bed. During cross-examination, the defence queried JM about whether she followed TL into his room and saw him retrieve the pornographic material or not. She said her memory was that she followed him into the room to retrieve the pornography.
She was taken to her first police statement dated 16 May 2021. It was suggested that in that statement, she told the police that TL had gone into his bedroom and brought back what looked to be movies and magazines but did not mention accompanying TL to his bedroom. She effectively agreed that she did not mention accompanying him to his bedroom in that statement. As to why in her first statement she did not mention accompanying the accused to his room when he retrieved the pornography, she said:
AAt the time I was very emotional, just trying to remember every detail that I could. Unfortunately, it was something that I missed, and it wasn't until I reviewed and remembered a little bit further that I did remember I did go into the bedroom as without that knowledge I wouldn't know where the magazines and videos were.
JM wasn’t sure when she realised that she had omitted the detail about accompanying him to the bedroom, she thought it was about the second or third time that she met with the detectives that she recalled where the magazines and DVDs were and why she knew they were there.
She was taken to her second statement. The following exchange took place:
QDo you accept that you told the police when you gave that second statement on 13 June 2021 that you were in the lounge room, and it was [TL] who came back with the pornography.
AYes.
….
QDo you accept that when you spoke to the police on that occasion [29 November 2022] again you made reference to magazines being brought out by [TL].
AYes.
When asked what led to her change in recollection about following the accused into her bedroom, she said:
AAt the recollection of where the pornography was located, without going into his bedroom, without following him, I would have no way of knowing where the pornography is. I observed that he grabbed those pornography and DVDs from out of his drawer where they were located.
She agreed in cross-examination that she had not provided the details as to the furniture from where the accused retrieved the pornography until she gave evidence. She denied ever being told that the police had located pornography in the accused’s bedroom or where it came from. However, she did say that she had drawn that inference for herself when the police asked her whether she would be able to identify the pornography if she saw it. She told police she did not think she would be able to identify the covers, and after that, she was not shown anything. Beyond the assumption that the police had located the pornography, she did not see any photographs of the pornography. She did not know where they had located the photographs.
During cross-examination, JM agreed that when she was older, she had looked after TL’s house while they were away and had stayed the night there, but she had not stumbled upon pornography in TL’s room. She said she stayed in her grandmother’s room.
The prosecution submission was that I should accept JM’s explanation for not including the detail about going into the bedroom in her statement because she was very emotional when she gave her statement, and she simply missed that detail. But, when she reviewed her evidence about the events of that night, she recalled that she did go into the bedroom because without doing so she would not know where the magazines and videos were.
The prosecution submits that the evidence that she saw the accused retrieve the pornography from the left-hand side bedside drawers is supported by the evidence that the police did locate the pornographic DVDs from the left-hand side bedside cabinet. The fact that the magazines were taken from the bedside dresser (and not the bedside table) does not undermine the evidence, given that nearly 10 years have passed since the alleged offending.
As to the submission that JM’s evidence was contaminated during a proofing session with the police the prosecution submitted that although she was asked to look at photographs in a booklet of photographs that included photographs of the pornography and the associated caption ‘located in the bedroom’, JM denied that she was ever shown any photographs of the pornography, nor did she see them herself when she looked through the photo booklet. She highlighted the evidence that, in any event, the photo booklet she was shown did not show the photographs in situ. It was submitted, I could be satisfied that the location of the pornography came from her own knowledge and not due to contamination.
The defence submission was that JM’s ability to describe the location of the pornography was explicable on the basis that she saw the pornography when she was younger, snooping around in the accused’s room or when she was older, looking after his house. There was evidence that she and her brother had stolen some chocolates from his room when they were little, which supported that submission. She had been made aware that the police had located the pornography, and she may have seen the photographs during the proofing session with the DPP on 16 March 2021. I note, however, her evidence is that she did not snoop in his room, and she did not see the photographs during the proofing session.
The defence highlighted the inconsistency between JM’s evidence in chief, when she said that the accused walked away in the direction of his bedroom and came back with the pornographic material (and that she recalled waiting in the room for him to come back), and her first statement, dated 16 May 2021 when she said the magazines were brought out was inconsistent with the evidence she gave in chief (contrary to what she had said earlier) and in cross-examination that she followed the accused into his bedroom to get the pornographic content. This was said to be a significant matter affecting her credibility.
I accept JM’s evidence that she did not stumble across the pornography at some other time. I accept her evidence that whilst she thought the police had located some pornography at the accused house, she was not told where, nor was that fact confirmed to her. Detective Bussenschutt’s evidence supports JM’s evidence on that topic.
Although I have not relied on the evidence as establishing esoteric knowledge (a use the prosecution sought to make of the evidence), the location where the police seized the pornography is consistent with JM’s account about where she saw the accused get it from.
Description of the pornography she saw
While in the loungeroom, JM said that TL showed her some pornographic magazines and later played a pornographic DVD. She said that inside one of the magazines, she saw two women naked in a shower, holding each other. She said:
AI remember feeling confused about seeing two women together, but it was something that interested me, which I believe also assisted in awakening my sexuality as a lesbian.
QCan you explain that a little bit more to me, please.
AOf course. So, seeing the two women together in the shower, they were both naked and holding each other, and I remember staring at it, remember feeling almost excited about seeing two women together, even though I had never thought about two women being together. It made me attracted to women. I liked the look of a woman's body, which is what I believe started my own - exploring my own sexuality.
She recalled TL talking to her about what the pornographic DVDs were, what they were used for, why there were naked people and why there were no cartoons. She said TL said something along the lines of ‘These are adult films that only adults watch to be happy’. TL then played a movie to her. She described seeing a male and female pleasuring each other sexually and said it reminded her of the accused touching her vagina when they were playing the ‘hide the keys’ game.
During cross-examination, JM was taken to her police statement on this topic. She accepted in her first statement to the police, dated 16 May 2021, that she said it was a female pleasuring herself, not a male pleasuring a female that she said reminded her of the hide the keys game.
The defence submission was that this was an important inconsistency. I disagree. The effect of what JM was saying, was that viewing a person touching a woman’s vagina reminded her of the accused touching her vagina. Whether it was a male touching a woman or, a woman touching another woman, or a woman touching herself makes little difference.
Sexual abuse while watching pornography
JM said the accused showed her the pornographic material. As they watched the pornographic movie, JM described events unfolding in the following way:
QDid [TL] do anything with his clothing as you were on the couch.
AAs we continued watching …I looked over and [TL] was stroking his penis. I'm not sure whether or not his pants were off or if they were down part of the way but I had seen his penis many times before, I just hadn't really seen him stroking it…
QYou can continue if you're okay to do so.
AYeah. I remember looking back at the screen, when the male was eating out the woman, and I remember asking about it and he said it was to make the woman feel good and the same goes when the female was sucking off the - the female was sucking off the male, and at that point I can't - I can't recall whether or not I had my underwear on or off but [TL] got closer to me and I remember - sorry, your Honour - I remember that he was asking how I was feeling and I'm not sure exactly how it happened, it's not something that I remember strongly, but I remember him going towards my vagina, I'm not sure at this point whether or not my underwear had been taken off by myself or [TL], but he started to - he started to play with my vagina with his fingers. I don't remember being penetrated but I remember the feeling of his fingers going up and down inside of the flaps of my vagina and after a few minutes of myself feeling confused about why my body was reacting, I remember him starting to lick my vagina and - started licking inside of the folds and my clitoris. I'm not sure how long that went for but after he stopped, I moved from the spot that I was laying, almost standing up on the couch, and there was this wet spot where I had been laying and I remembered looking directly at him and asking '[TL], what's this?', and he replied to me that 'This is what happens when a woman feels good'.
The detail JM gave, and her presentation when she gave that evidence was compelling. As was the following evidence:
QHow did it make you feel at that time that he was doing that to your vagina.
AI felt - I felt confused. I felt conflicted. My - my body was - had experienced him playing with it before but it felt - it felt - it felt good for my body. I was - I was confused why it felt good and obviously the sheer embarrassment of having - seeing two people having intercourse on the screen while my vagina was being played with. I didn't know how to react. I - I froze.
QDid [TL] say anything to you at that time about what he was doing to your vagina.
AI remember him saying that the woman on screen was being pleasured and that it felt good and that he could make me feel good as well.
…
QAnd what could you feel on your body as he was doing that.
AI could feel his tongue. It was almost rough against my vagina. I also remember feeling overwhelmingly hot physically, my body was really hot. I could feel his breath coming from his nose. I could feel the couch beneath me. I'm not sure where his hands were at this time. That's how I felt.
JM said after that, she masturbated him and then fellated him. Her evidence is as follows:
…He went back to that original position where he was sitting, and when he went back there, a conversation along the lines of, you know 'You've been shown what a woman's pleasure is', he started stroking himself saying 'This is how a man is pleasured', and I'm not sure exactly the conversation after, but my hand came into contact with his penis and I was the one that was - ended up stroking his penis. His hands were there to - to guide mine. I'm not sure exactly how long that interaction lasted but after the hands, it moved along the lines of using mouths as pleasure for the male anatomy as well and got on to the conversation of I could go to bed once I've licked it, essentially like a lollipop. At that instant, my mouth did come into contact with his penis…
…
I remember looking over the top of his penis. I was looking directly down at it and I made my way - my head towards his penis, and once I got close to the tip of his penis, I did lick it.
The prosecution submission was that there were a number of features of JM’s evidence about what occurred the night the pornography was played that indicate a truthful account. First, her description of having a sexual awakening when she saw the pornography (she realised she was attracted to women). Secondly, her evidence that the pornography reminded her of what the accused did to her when he would take the keys from her pants and touch her vagina. Thirdly, her ability to describe how she felt after the accused licked her vagina – in particular, her description of the wet spot that she left on the couch. Fourthly, her description of the accused telling her to ‘lick it like a lollipop’. Finally, her description of ‘feeling overwhelmingly hot physically’ (during cunnilingus) ‘…I could feel his breath coming from his nose’ indicated a genuine account of her lived experience of the accused performing that sexual act on her.
The defence submission was that the detail of her account carried less weight due to her age, intelligence, and experience. Of course, they also relied on what they said were the cumulative effects of the inconsistencies, which should lead me to doubt her evidence.
I accept the prosecution submission that JM gave a detailed account of her experience in a way that had the hallmarks of a truthful account. For reasons I set out later in my reasons, I accept JM’s evidence about what she says happened the night the accused played her a pornographic video. In my view, the detail she provided and how she described what occurred to her was compelling.
Sexual attraction evidence – sexual proposition and penis photograph
The prosecution led evidence of sexual overtures made by TL to JM when she was an adult. According to JM when she was 17 or 18 years old, the accused said, ‘he'd recently got an inheritance from his mother and, on that, if I continued what I was doing with him, he'd give me half of his inheritance’ (the inheritance proposition). She said no. The accused’s mother died on 2 August 2020, and assuming the inheritance proposition was made after her death, JM was 18 or 19 years old (she turned 19 on 31 August 2020).
Apart from the inheritance proposition, when JM was 18 years old, she said TL sent her a text message: ‘Do you want to see it?’. She was not sure what he was referring to, but she agreed (to see it), at which time she said TL sent her a photograph of his penis (the penis photograph) and asked if she would send him a photograph of her. She said no, deleted the photograph and asked TL to do the same. During cross-examination, JM agreed that she had not mentioned in any of her statements that the accused had asked her if she would send him a photograph. As to the reason she deleted the messages, apart from not wanting anything to do with TL, she was concerned that having the photograph on her phone could compromise her prospects of becoming a teacher. As she was studying teaching at university at the time, she was concerned that whilst she was on placement a student would see the photograph. During cross-examination she said, ‘if a child was on my phone and they saw a penis or anything explicit on my phone, I could be endangered of losing my spot at university and potentially scaring a child and having them feel confused or disgusted or anything like that’.
It was suggested to JM that she must have been angry and upset at the inheritance proposition and, indeed, the penis photograph that was sent to her. She said that she was not sure how she felt, but was certainly happy that there would not be any further sexual contact. She was cross-examined about when the inheritance proposition and penis photograph occurred. She confirmed that she did not know which came first (the inheritance proposition or the photograph) and was unsure when the penis photograph was sent. She accepted that the inheritance proposition must have occurred after TL’s mother died (there would have been no inheritance to speak of otherwise). It was an agreed fact that TL’s grandmother died on 2 August 2020.
The prosecution submits that the inheritance proposition and the penis photograph, if accepted, demonstrate that TL had a sexual attraction towards JM both at the time of the inheritance proposition and when he sent the penis photograph but also when he was offending against her as a child. The prosecution submitted that I could use the evidence of sexual attraction as an item of circumstantial evidence, making it more likely the offending the subject of the charge occurred. The process of reasoning relies on propensity reasoning. The evidence is discreditable conduct and in those circumstances s 34P governs the admissibility of this evidence.
I accept that the evidence may be capable of showing that the accused was sexually attracted to JM when she was an adult. However, it has very little probative value as to whether he was sexually attracted to her as a child. JM was between 8 and 13 years old when the sexual offending is alleged to have occurred. It was five or six years later, when she was 18, or 19 years old, that the inheritance proposition was made, and the penis photograph sent. As has been said, there is a ‘stark qualitative difference between attraction to a person as an adult as opposed to when that person was a child’: Brant v The King [2023] SASCFC (Livesey P, Doyle and David JJ). It does not follow that because TL was sexually attracted to JM as a young adult, he was therefore attracted to her in the same way when she was a child. In my view, the evidence is incapable of demonstrating a sexual attraction towards JM during the charged period. I have not used the evidence in any way to support JM’s evidence about the charged offending.
Although obvious, for the sake of completeness, I make clear I have not used the evidence to suggest that the defendant is more likely to have committed the offence because he engaged in the discreditable conduct (s 34P(1)(a)). I have not engaged in bare propensity reasoning or what is sometimes referred to as ‘bad person’ reasoning: R v C, CA [2013] SASCFC 137, [76] and [79] (Kourakis CJ).
The defence submitted that the inheritance proposition and the penis photograph had some relevance in the trial. That is, the evidence on this topic adversely affected JM’s credibility.
First, the defence said the evidence was inherently unlikely. It was fanciful to think that TL would proposition JM years after the offending had finished. Moreover, she told him that she was not interested. TL then sent JM a photograph of his penis, which would give her evidence she could use against him. I note JM’s evidence that she was not sure which came first - the penis photograph or the inheritance proposition. The defence submitted that JM’s evidence that she deleted the photograph because she was worried about her teaching degree did not ring true and for the first time in the witness box, she added that the accused asked her to send a photograph of herself (after he sent her the penis photograph). That was not something that she had ever mentioned in any of her affidavits.
Secondly, the defence submitted that text messages between TL and JM in December 2020 and January 2021 (Exhibit D13) and Facebook messages in March 2021(Exhibit D14) demonstrate, according to the defence, that JM was getting on well with TL. The messages were inconsistent with the inheritance proposition and the penis photograph ever occurring.
On 31 December 2020 at 8.11 pm, the accused texted JM, ‘Happy new year’ with a partying emoji, to which JM responded at 8.55 pm on the same date, ‘Happy new year’. On 12 January 2021, TL texted JM, ‘How are you [JM] going okay was good to catch up with you last weekend’ followed by two flower and kissing emojis. At 6.14 pm JM replied, ‘I’m going okay thanks, it was good to catch up’. At 6.14 pm, JM responds, ‘I’m going okay thanks, it was good to catch up’. At 6.16 pm, TL sends the final text message, ‘Good you take care of yourself if you need to chat at all, you got my no [number]’ followed by two flower emojis.
JM accepted that the text messages were sent between her and TL. She was not sure if the inheritance proposition or the penis photograph had been sent by then. She said the catch-up that was referred to was probably when they all caught up as a family, either for Christmas or New Year’s Eve. She was unsure if she meant it when she said it was good to catch up. The defence submitted that, assuming the inheritance proposition occurred after TL’s mother’s death in August 2020, then how unlikely was it that she would respond to the accused’s text message in the way she did in December and January (assuming the inheritance proposition had occurred). It was submitted that JM was intentionally vague about when the inheritance proposition occurred because she knew the defence had text messages she sent to the accused in December 2020 and in January 2021, which showed her being affectionate to him.
As to the Facebook messages, screenshots of JM’s Facebook page showed that in March 2022, JM updated her Facebook profile photograph (Exhibit D14). The accused complimented JM on the new photograph by commenting ‘Nice photo’ followed by two flower and two kissing emojis. At some point after that (there was no date as regards the response), JM ‘love reacted’ TL’s comment. The defence submitted TL’s response suggested a good relationship that was inconsistent with the sexual offending, the inheritance proposition occurring, or the penis photograph being sent. The following exchange during cross-examination is relevant:
QWhy did you love the comment made on your picture on Facebook by the man who you say repeatedly sexually abused you as a child.
AIt wasn’t uncommon for myself, if I got any compliments or any comments on my profile pictures, to either like or love them. As you can see on also on page second of that P14, I’ve hearted many of the comments, often all of them from – sorry, hearted all of the comments at that time. It wasn’t uncommon for me to not heart them.
…
QThe reason why you liked [TL]’ post less than two months before you went and gave your first affidavit of the various sexual things you say he did to you is because you, at that stage, still had a good relationship with him.
AI say the reason why I liked his post is because it wasn’t uncommon for me to like people’s posts.
QAnd you had a good relationship with him because he had never abused you in any of the ways that you’ve alleged, he did.
ANo, he did sexually abuse me.
Thirdly, the defence submitted that, if anything, the penis photograph raised the question as to whether this evidence was tacked on to support her sister’s allegation, which was relevant to a potential motive for JM to fabricate her evidence.
Discussion
I accept that the inheritance proposition and the penis photograph were disconnected from the offending when she was a child (the subject of the charges). There is little detail about the circumstances in which the inheritance proposition came up and why. However, accepting there was gap of some years does not necessarily make JM’s evidence inherently unlikely.
I agree with the defence submission that her evidence about the accused sending her a photograph of his penis was a risky thing to do. Had it been sent, I agree that it would have provided her with evidence she could use against him. In that sense, it made him vulnerable. Having said that, she was an adult at the time he sent the photograph, and whilst undoubtedly discreditable and probable that it would have led to significant fallout amongst the family, it was not an admission to any sexual offending when she was a child. Even if it did make him vulnerable, that is not a sufficient reason, in my mind to conclude that JM’s evidence was unlikely. It is not at all uncommon in settings such as this for brazen, risky behaviour, that leaves people vulnerable to detection, to occur. I reject the defence submission that the evidence is so unlikely that it leads to the conclusion that JM cannot be accepted as a witness of truth.
I accept JLM’s evidence that she felt compromised about the penis photograph being on her phone and that it caused her to worry about her teaching degree if someone found it. I accept the defence submission that it was unlikely that the photograph would be found on her phone because she had a passcode. At the same time, I can understand how she might have the concerns she said she did even though it may indicate some hypersensitivity about it. It is understandable how she might feel vulnerable with a photograph of the accused’s penis on her phone. I reject the defence submission that her evidence was inherently implausible on this topic.
I do not accept the defence submission that sending the text messages and Facebook love heart response was inconsistent with her account of the accused sexually abusing her as a child and was inconsistent with the inheritance proposition and Facebook photograph. While she may not have liked what the accused had done to her (as a child and when he propositioned her and sent the penis photograph) and did not want to spend much time with him, there was still some contact between them. She had maintained the rouse that she had a normal relationship with her grandfather for years. The family would spend Christmas together each year. That she ‘reacted’ to TL’s comment complimenting her on her Facebook profile does not cause me to doubt her evidence. It might be said that the love heart response was nothing more than a quick response which was consistent with the way JM responded to the various other comments she received. It could also be said that JM felt obligated to respond to TL’s comment, given the ‘public’ nature of the comments on her Facebook profile picture, and that she had responded to the other comments. The accused was JM’s grandfather. She had many good times with him. Despite what he did to her, she loved him when she was growing up. Abuse such as this is confusing for children. Even when she was a young adult, I can see how there might be mixed feelings. It does not follow that all interactions with him would be hostile or that she would necessarily rebuff him if he messaged her or would otherwise be rude. The responses on Facebook and the sending of the text messages are not matters that have caused me, either on their own or in combination with other matters raised by the defence, to doubt JM’s honesty and reliability.
I reject the submission that JM tacked on her account to help her sister. I accept her evidence about the penis photograph and the inheritance proposition. However, for the reasons I have already explained I have not used it in any way to support JM’s account about the unlawful sexual acts the subject of the charge.
A denial, then a complaint
I set out the circumstances and background in which JM complained to her mother about what she said TL did to her. In terms of chronology, SRM was the first of the two sisters to complain to her mother about what the accused did to her. When SRM complained to JLM about the accused touching her inappropriately (the detail is set out later in these reasons), JLM then told her mother, DL (TL’s wife) about what SRM had said. JLM and DL then rang JM. According to JLM, she and DL told JM in a general way what SRM had said and asked if TL had touched her inappropriately. JM denied that TL had ever done anything to her. It was sometime later, when SRM had complained again about the accused touching her inappropriately, that JLM rang JM for a second time, telling her what SRM had said about the accused that time. At that point, JM complained to her mother about the accused sexually abusing her.
The denial
An issue arises as to the relevance of the denial when assessing the credibility of JM. It is necessary to consider the circumstances in which the denial occurred. JM’s evidence was as follows:
AI was on my way to university, I had just hopped into my car and I got a phone call from my mum. She and grandma were both on the line, she let me know that grandma was on the line. She had asked me 'Has [TL] done anything?'. Has [TL] touched me or done anything sexual with me, because [SRM] had come out about what happened to her and then I - I just froze in the car. I got hot. I was embarrassed, I was scared, I had so many emotions running around and my response, as much as my head was screaming 'Yes', I said 'No'.
QWhy did you say no.
AI was scared and embarrassed, embarrassed that I let something like this sexual, sexual things happen to me without telling anyone. I was scared that if I came out about this now, after everything of being made to keep quiet, I would lose my mum, I would lose my sister. I was scared I was going to break the family apart. I didn't want to be the one responsible for making my siblings grow up with grandparents and having them hate me and I was also scared that if I came out about everything, that everything I worked for to get into university would go out the window, that they wouldn't consider me to be someone that's appropriate for a teacher.
QAnd you also mentioned that your grandmother was on the line, is that right.
AThat's correct.
QHow did you know that grandma was there.
AI heard her speak and my mum told me that she was also on the phone.
QDid that have any influence as to the answer you gave to your mother when you were asked if [TL] had done anything to you.
AYes.
QCan you explain that please.
AI was - once I heard grandma was on the phone, I felt like I couldn't say anything because I would be ruining her relationship, her happiness and that if, after everything of, again, being quiet, would make her think less of our family because we couldn't speak up about what happened. That also, if I told grandma, that it would get back to [TL] and that he would know I talked.
QYou said that you were given some information that SRM, in effect, had made some allegations about [TL].
AThat's correct.
QWere you given any detail or told anything at all, during the course of that conversation with your mum and grandma, about what SRM said had happened between her and [TL].
ANot that I can recall.
I have considered whether her denial is a matter that should cause me to have a doubt about JM’s evidence.
I have also considered whether her denial undermines the complaint she made to her mother sometime after... JM was first asked if the accused had sexually offended against her, whilst she was on her way to university. The question came unexpectedly. It is understandable how the question would have taken her aback. She had maintained her secret until that time and likely had no intention of telling anyone about what happened to her. Her embarrassment about not telling anyone earlier and her concern if she did say something, her mother would not want to have anything to do with her and her sister might think the same is readily understandable. As is her concern that if she complained, she would break up the family.
I accept her reasons for denying the offending. They are logical and believable. To the extent that the denial is inconsistent with the evidence that the accused sexually abused her, the inconsistency is not a matter that has caused me to doubt JM’s evidence when I consider the explanation for it.
JM’s opinion about SRM
JM gave evidence that when she first found out about SRM’s allegations about TL, she thought SRM was lying. JM’s opinion that SRM might have been lying is inadmissible opinion evidence. I have not considered JM’s opinion when considering the charge related to SRM.
When assessing JM's evidence, I have considered JM’s disbelief in what SRM said. I asked myself why she would not believe SRM if it had happened to her? I set out JM’s evidence as to her thought process:
QDid you ever tell your grandmother that you thought [SRM] was making that allegation for attention.
AI did.
QAnd why did you tell your grandmother that.
ABefore this incident of [SRM] coming out about [TL], I had recently gone on to my sister's social media account, where she was being groomed online via Snapchat using our nanna's email. There was a case matter that we had to go to the police for and let them know of the situation. Also, during this period of time, she was going - she was very depressed and at the time I thought she was looking for help. In a way, I did believe her, but I thought that if everything that happened to me after had stopped, it wouldn'’t continue to my sister. I thought that it had finished. I didn't think he would go after my younger sister. So, I thought she was making it up to a certain degree.
In her first interview, SRM described the last time she said anything sexual happened between her and the accused was in his shed. I have earlier referred to this occasion as the shed incident. The shed incident comprises two main events. First, the accused is said to have groped SRM, before tongue-kissing her. SRM then played craft in the shed for a while. Second, after craft, the accused showed her, or at least she saw, a photograph of the accused’s penis on the accused phone. I will set out the main parts of her evidence on this topic.
Groping and Kissing
In her first interview, SRM said on the day of the shed incident, when she first arrived, she hugged the accused. She said she thought, ‘why the hell not’ but then he grabbed her as hard as he could and started touching her and then moved his hand around to her thighs. TL then went to kiss her, but she dodged out of the way. She said TL said, ‘C’mon, kiss me’. She told him that she did not want to. However, she said she could not get out of his way. She said she tripped over a cordless phone, and the accused caught her. She then hugged him. He then started touching her in a ‘sexual way’. She said it was very uncomfortable ‘even though this has happened since I was eight. Him touching me’. She didn’t know what he was doing until she was 12 years old and started learning about sexual health. She said the kissing was different from the earlier occasions when she hadn’t really cared. She could not recall if the accused said anything to her when he was kissing or touching her.
During cross-examination, she confirmed that this was the first and only time that TL had ever tongue-kissed her. As mentioned earlier, she said that the other times he had kissed her, it was on the cheek without using his tongue and was no different from how her parents might kiss her before she went to school.
She said she was unsure how the tongue kiss came about ‘I just kind of walked in the shed, and then he greeted me hello and then he kissed me [with his tongue]’. As to what he did with his tongue, she said, ‘He basically put it against my cheek and then kind of swirled it, I guess’. She said before the tongue kiss, there had been no other physical contact. However, when taken to her first interview, where she said she hugged him first, SRM said ‘Hang on. Sorry. Okay. So yeah, I would have greeted him, came in the shed, hugged him because that would be like a usual thing for like me and him to happen and then the kiss happened’. She said the accused had squeezed her bottom first with both hands (he had squeezed her that way in the past).
In terms of timing, SRM said in her first interview that she thought the shed incident occurred sometime in January 2021, as it was just after Christmas 2020. It was agreed between the parties that the shed incident (if it occurred) must have occurred in September 2020. Again, SRM was quite wrong about the time. Her first interview was in May 2021. The events were not particularly dated, yet SRM placed the shed incident as occurring after Christmas 2020 and likely in January 2021 instead of September 2020.
Penis photograph
After the tongue kiss, she went on to play craft. In the first interview, SRM said she was making ‘little things with popsicles, cause that’s my little natural talent’. After about an hour of building and decorating, she asked if she could photograph her creation on TL’s mobile phone.
In her first interview, she said she had asked to take photographs using his phone of her creation, then asked if they could take a selfie of the two of them together when he said, ‘I’ve got something to show you, but don’t tell Mum after you see it’. The two of them started taking ‘selfies’. One of the photographs was blurry, so she deleted it. After deleting it, she went into the recently deleted photographs, and that is when she saw a photo of the accused’s penis. There was no suggestion (in either of the interviews or in her evidence) that the accused had asked her to delete the blurry photograph and then go into the recently deleted photographs to delete it. There is no suggestion that the accused offered to give her his phone or suggested they use it in any way. When she discovered the photograph, TL told her that the penis photograph was what he wanted to show her. In her second interview, SRM said that TL said that he had a surprise for her, and then, fortuitously, she discovered the photograph of his penis in the recently deleted folder on his mobile phone and then TL said, ‘This is your surprise’. At trial SRM described this incident in similar terms, giving evidence that the accused said ‘That was your surprise’ after she saw the photograph of his penis.
In her first interview, she said that she immediately ran from the room with his phone when she saw the photo. When she got inside the house and realised that she still had the phone in her hand, she threw the phone in the accused’s room and went into her room.
In her second interview, she said she saw three photographs of the accused’s penis as opposed to one, which is what she described in the first interview. She said the photographs were all similar. She said she could see the accused’s face in all three photographs because it was ‘like an angle pic’ where he was lying on his bed. She said all three photographs were similar and thought the photographs were taken on his bed. During cross-examination, SRM said that she saw his face in one of the photographs because that photograph was full-sized on the phone, but the two other photographs were smaller thumbnail sketches. The photographs looked similar, but because of their size, she could not see his face.
I found the account of discovering the penis photograph by chance in a recently deleted folder on TL’s phone and at the same time, the accused was saying he had a surprise for her, an unlikely coincidence.
The defence highlighted that in her second interview, when asked about the shed incident, at one point, she said that the accused told her not to go through her phone, then stopped herself and said no, that is not right. During cross-examination, she said that the accused had, in fact, never told her not to go on his phone – one wonders why she ever said that then – or started to say it, then stopped.
It concerns me that she said that the accused told her not to go through her phone when she had said in her first interview that he showed her the penis photo and said ‘surprise’.
After the shed incident, she never returned to the accused’s house and did not want much to do with him. She also said that the last time she saw the accused was after she was taken to the accused’s house to apologise for stealing chocolates. It was on that day that she sent her mother a text message complaining that the accused had kissed her.
Relevant to SRM’s evidence about seeing a penis photograph on the accused’s phone, SRM was cross-examined about online communications she had in August 2020 when she was 12 years old with an unknown male (there is no suggestion this was the accused). She said the unknown person asked her for nude photographs of herself. She responded ‘no’ and that she would not cheat on her boyfriend. As to the communication she had with this person online, she said that she could not say whether that person sent her photos of himself in a state of undress. The following exchange is worth setting out:
QYou don’t say that you weren't sent a picture like that, though, do you.
AI can't remember, I'm sorry.
QDid the person that you were communicating with send any photographs of a male, in any sort of state of undress, that you can recall.
ANo, I couldn't, sorry.
QWhen you say 'No', is it that you just simply can't recall.
AI really could not recall.
QSo, you can't say, for example, if - you just simply can't say whether you might have been sent a photograph of a male sort of lying on a bed showing their private parts and their face in the photograph.
ANup.
I found it unlikely that she would not know whether the person she was speaking to online sent her photographs of his private parts.
Evidence was led through Detective Bussenschutt as to the details of the online communications. Detective Bussenschutt said that when SRM’s mother discovered the online communications, she reported the matter to the police. SRM gave evidence to the same effect. Detective Bussenschutt said that on 18 August 2020, the police spoke to SRM about the material and took photographs of the relevant message on SRM’s phone. The social media exchange was tendered at trial. It showed that SRM had been sent a photograph of a man’s genitalia.
SRM - Complaint evidence
SRM gave evidence that she complained to her mother about the accused for the first time about three or four weeks after the pool incident (it was agreed this must have been at Christmas 2019 making the complaint, if it was made, in early 2020). The second time (elaboration 1) she complained was two days after the shed incident (September 2020) and the third time (elaboration 2) was in May 2021.
While the complaints were made on separate days many months apart, the prosecution submitted that the ‘elaboration’ of the initial complaint was sufficiently connected with the initial complaint so that the whole could reasonably be viewed as one (R v P, S). The defence did not argue against that proposition. I direct myself that ‘there is only a single complaint that is admissible. That is evidence of the initial complaint. While that initial complaint may include information provided by way of elaboration of the initial complaint, whether provided at the time of the initial complaint is first made or at a later time, the direction required to be given pursuant to s34M(4) is in relation to the initial complaint’: R v England (2013) 116 SASR 589, [44] (per Stanley J; Kourakis CJ and Nicholson J agreeing).
I set out the evidence as it relates to SRM’s complaints.
Pool Incident
As to the complaint referrable to the pool incident. In SRM’s first interview, she told her mother, ‘Basically that, we were in the pool, and he just moved me across onto his, you know’. She said her mother told her to ignore it and get on with her day. What she said in the first interview, in my view, was a paraphrased account of what she said that lacked detail. When giving evidence, she could not remember any of the details about what she told her mother. When her mother gave evidence, she did not say that SRM complained to her about the pool incident. JLM said the first complaint she heard from SRM was in October 2020 (elaboration 1).
It may be said that you would think a mother would recall her daughter saying such a thing. On the other hand, JLM may not recall the first complaint because she may not have appreciated the effect of what SRM was saying. According to SRM, she told her mother that the accused pulled her onto his ‘you know’ while in the pool. I can see how JLM may have misunderstood what was being said by SRM, or not appreciated there was a sexual connotation to it. Her response, according to SRM, ‘just ignore it’ lends some support to that finding. That would explain how JLM may not recall anything about it. I am satisfied that SRM did complain to her mother about the pool incident at a time proximate to that incident, in other words, when you might expect her to complain.
Elaboration 1
In her first interview, SRM said the second time she complained to her mother was two days after the shed incident. Her mother was driving her and her brother to TL’s house so that they could apologise for stealing the chocolates when they stayed at TL’s house (when the shed incident is alleged to have occurred). She complained to her while in the car on the way to TL’s house. I set out her evidence from the first interview as to her complaint about the shed incident:
QOkay, did you speak to anyone about what happened in the shed?
AOnly mum.
QOkay, when did you tell mum?
AUh, probably like 2 days after I got back from their house. She, I had to basically write it into just, as in a text because mum was on her way to their house. Because we had to say an apology because [J] stole chocolate and then, anyway we on are way, she skipped the most important half, of cause she did. Or she forgot it or something. So she just read basically we're in his shed blah blah blah. That's all she got up to. So then, the other night, I had to go through the whole thing again.
…
Q Okay, so you told her in a text, did she speak to you about it?
AShe, didn't speak to me about because we were at their house and felt very awkward to be there.
…
Q Hum-um. Alright so, do you remember what you wrote in the text to mum?
AIt was just explaining what happened, so basically it was like something along the lines of, I don't want to see grandpa because he basically touched me and he showed me his penis blah blah blah. It was written out in a better sentence than that of course.
JLM gave evidence about what was said in the car on the way to TL’s house. I set out her evidence:
ASRM looked over at me while I was driving and said to me she did not want to go to grandma and [TL]'s, and I then replied to her 'Why not?'. I started to get a bit defensive as I thought to myself that she was trying to get out of being responsible. So I asked her 'No, you are -' I think I said to her 'No, you have to face your consequences', and she said to me 'It's not that' and I said 'Why, what's wrong?', and if I can remember correctly, she said to me that she did not want to go because [TL] had touched her inappropriately.
…
ASo, I said to SRM along the lines of 'What do you mean by that?', and she said to me 'I can't tell you because the kids are in the car'. So I handed her my mobile phone and I said 'Write me a message'. And then she wrote me a message on the mobile phone and handed it to me, which I believe said 'I don't want to go because [TL] touched me inappropriately'.
After she read the message, the following conversation took place:
AI asked her where she had been - like, where she was talking about that [TL] had touched her, and she kind of stopped and kind of froze a little bit and wouldn't answer. So I asked her another question. I believe I asked her 'Did he touch you on your breasts?', and her reply was 'No'. And I also asked - I then asked her 'Where did he touch you?', and she said on her backside. And I believe that I asked her 'Was it a pat or what kind of -' you know 'Did he do -' like, you know, I cannot remember the exact words that I used, and she said 'No, he squeezed my backside'…
QApart from telling you about that area that [TL] had touched, did she tell you anything else about what [TL] had done.
AShe told me that he had showed her inappropriate photos and video.
According to JLM, she was not sure if SRM was telling the truth or whether she might be making it up because she was in trouble, so she still took her children, including SRM, to TL’s house to make the children apologise for stealing lollies. She said that her daughter had been quite ‘defensive in her actions for a while, so there was a little bit of doubt in my mind about the whole situation’. She said she spoke to TL about what had been said, ‘just for my own curiosity more than anything’. JLM said the accused looked her in the eye and said, ‘I am not a kiddie fiddler’. She accepted the denial because she stayed and had coffee and then took her children home. The only relevance of JLM’s evidence about doubting SRM is to explain why JLM continued to TL’s house. I have otherwise ignored the evidence.
During cross-examination, JLM agreed that the accused (in addition to saying that he was not a kiddie fiddler), said that he had pinched SRM on the bottom with his index finger in a playful way when they were taking selfies together to try to get her to have a surprised look on her face or some similar reaction when the photo was taken. She agreed when she told the accused what SRM had said. She did not mention anything to TL about what SRM had said about being shown the photographs or the video. She agreed in cross-examination that all she raised with the accused was that SRM had said he had squeezed her bottom.
JLM disagreed that if SRM had told her that the accused had shown her inappropriate photos or videos that she would have necessarily raised it with TL. I set out her evidence on this topic:
ANot necessarily. It's a huge allegation to accuse somebody of sexual assault and what have you. It's not something that as a human being I would like to turn around to, for example, yourself and go 'I accuse you of such and such'. I'm a very tactful person and I believe that, you know, you shouldn't just go around accusing people of doing something without any evidence or anything to back up your statement, I don't think that's very fair.
QNot even if it's an allegation that's been made to you by your own daughter.
AThat is correct, yes.
QWell, did you confront [TL] at any time about the allegation of him showing SRM inappropriate photos or videos.
AI don't recall that I have, no.
QIs it possible that you didn't raise anything to do with a mobile phone with the accused because at that stage SRM had never mentioned anything to do with a mobile phone to you. (393)
ANo, that is incorrect.
QYou say that's not possible at all.
AThat is not possible, no.
JLM said that she did not think that SRM ever went back to the house after the day she complained to her in the car.
During cross-examination, JLM agreed that in her first statement to the police, she had not told the police that when SRM complained to her in the car in October 2020 she told her about the accused showing her photographs. She said it was something she had actually ‘forgotten about at the time’. She agreed that she had never said that SRM told her about the accused showing her videos in any of her statements. However, she maintained that she had done so. I found JLM’s evidence on this issue unconvincing.
I find it unlikely that JLM would not raise the complaint with TL about the photographs and video if there had been a complaint about that. The defence submitted that JLM probably conflated different occasions where SRM had told her things. When I consider that JLM says that in May 2021 SRM complained to her about seeing photographs and video of TL’s penis there is support for the submission she has conflated what she had been told by her daughter in May 2021. Although SRM says that she told her mother about the accused showing her his penis, there is very little detail from her about what she said. I am left unsure as to the precise details of the complaint. Given JLM acted in a way inconsistent with having been told about the penis photograph I am not satisfied that the complaint included a reference to a penis photograph.
I accept there was a complaint about the accused touching her inappropriately. I accept it included an allegation about the accused touching her bottom.
Elaboration 2 - May 2021
SRM said the third time she told her mother about what the accused had done to her was following a fight with her siblings (May 2021). In her first interview, she said she was arguing with her mother, which culminated in her telling her mother ‘everything’. In her evidence in chief, she was asked by the prosecutor what she told her mother. She said that she told her mother that the accused would touch her on her bottom. When asked if she gave any more details, she said she could not remember. Again, when I consider the complaint evidence, there is very little detail from SRM and the detail she did give was confined to the accused touching her on the bottom.
In May 2021, JLM said that SRM was fighting with her younger brothers and snapped at them when the boys teased her about her weight. During cross-examination she agreed that SRM had slapped her brother following an argument about who was packing the dishwasher. Although an odd thing to say, her mother then asked SRM what her problem was with men (even though she was fighting with two little boys), to which SRM responded ‘You don’t understand, I was almost raped’. She said the two of them then went outside, and JLM asked her what was happening. I set out JLM’s evidence:
A... I can't remember exactly how the conversation went, but I believe that she started to open up to me, she said things like '[TL] had touched me in the shed, he had shown me photographs, videos' and I questioned her a little bit on what she had told me and said to her 'Are you one hundred-per-cent sure that it's [TL]?', that kind of thing and when she said 'Yes', but that's about as much as what she disclosed to me at that stage and then she kind of withdrew again into herself.
HIS HONOUR
QDid she say anything about what sort of photos or videos she was shown.
ASo she said to me that they were on his phone and they were nude photos of himself and of his penis and him also masturbating and that's basically all she said to me.
…
QDid she give you any more information about the shed.
AOnly thing that I can recall her saying to me was that it happened in the shed, that the photos and the videos were shown to her in the shed and that when she was in the shed with [TL] he was also very, very close to her and that he would squeeze her backside in the shed.
QDid she give you any more information about how he would squeeze her backside.
ANot that I can recall.
During cross examination as to the detail of what SRM told her JLM gave the following evidence:
QIn that conversation you had with SRM out the front of your house on that Sunday that we're still talking about, SRM told you, didn't she, that [TL] had kissed her starting at the forehead and then kissed her down from the forehead towards her mouth.
AI believe that is correct, yes.
QAnd she also told you in that conversation that [TL] had directed her to look at his mobile phone while they were in the shed, and she said that there were photos of boobs and vaginas on his phone.
AI believe that to be true, yes.
JLM said the next day, she went to the police station with JM and SRM, and the matter was reported to the police.
Discussion
I am satisfied that in or around January 2019 SRM told her mother that the accused had, while in the pool with her, pulled her onto his ‘you know’. However, in circumstances where the complaint only comes from SRM, there is no other support for it, and the details of the complaint are vague, I place little weight on this aspect of the initial complaint.
I am satisfied that SRM told her mother in October 2020 that the accused had squeezed her bottom.
I am satisfied that in May 2021 SRM complained that the accused had touched her bottom while she was in his shed, and that she had seen photographic images of his penis. I am unsure as to the reliability of JLM’s evidence when she says SRM told her that she had seen a video of the accused masturbating. I say that, in part, because she never mentioned that important detail in her statement but also because of my view about her unreliability in relation to the shed incident complaint.
I direct myself pursuant in the terms set out in s 34M(4)(a)(i) – (ii), (b) and (c) of the Evidence Act1929 (SA).
The complaint evidence explains how the allegations came to light (s 34M(a)(i)). I am satisfied that the complaint evidence relates to the charged offending. The evidence is capable of demonstrating consistency of conduct, although there are aspects of the complaint as described by JLM that are inconsistent with parts of SRM’s account (s 34M(a)(ii)).
I direct myself that the initial complaint (incorporating the elaborations) is not evidence of the truth of what is alleged (s 34M(b)).
I direct myself that there may be various reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time to a particular person (s 34M(4)(c)). In this context, the defence submission was that I need to consider whether the reason for complaining when she did was because she was in trouble.
Again, it remains for me to determine the significance (if any) of the evidence in the circumstances of the particular case.
Motive to complain
The defence submission was it remained a possibility that the reason that SRM complained was that she was in trouble and said the accused did things to her to get herself out of trouble. The defence submitted that SRM was subjected to neglectful, violent behaviour at the hands of her parents, and this provided a motive for her to fabricate the allegations to avoid a physical reprimand.
I briefly set out the evidence that relates to how SRM’s parent treated her. JLM said there was a source of tension in the family about SRM’s eating habits. SRM had been diagnosed with an eating disorder. She was disciplined around that issue. JLM agreed that she may have put Tabasco sauce in her mouth. She said there was volatility in the house, including SM hitting SRM for things such as being defiant or swearing. She said that she had seen her husband smack SRM in the backside area. JLM admitted to throwing things around the house, not at the children but around the house, if the children left things hanging around. She admitted that she had concerns about her husband’s treatment of the children. She said he could be very controlling and very harsh with smacking. She said that they were both guilty of smacking the children. JLM said her husband would make derogatory remarks about the children’s weight, not just SRM, but it included her. She said there was an incident when SRM's father pushed her to the floor and held her there by the neck after SRM had lashed out at him. Her husband was arrested in March 2022 for an allegation that he assaulted his son by backhanding him to the head for eating a bowl of pasta he should not have. JLM said that her son got into trouble not so much for eating the pasta, but for lying when he said he hadn’t.
When the children were discovered stealing chocolates at TL’s house, JLM said that the children were spoken to by both her and her husband. They were told they would have to apologise, and it was not okay to go through their belongings – they would have to face the consequences.
She said that SRM’s responses to being told off were like any child - she was not happy, and they were defensive, saying ‘it was not me. Why is my iPad being taken away?’. She did not believe that any physical punishment was handed out to SRM, nor was there any threat of it. She disagreed that her children had been beaten for less.
QDid you ever hold a butter knife to SRM's wrist when she talked about wanting to run away from home.
AI cannot recall but that does not mean that it did not happen.
As to how SRM would usually be reprimanded when she hit her siblings (as she had on the day of the May 2021 complaint) SRM said that she would be disciplined by being separated from her siblings to de-escalate things – it would not have meant SRM would be hit. She said she does not recall SRM ever being reprimanded physically for hitting her siblings by her mother or father. She may have been restrained but never hit.
SM said when he found out that the children had stolen chocolates. He said he sat them down and told them they had broken a rule in their house that you don’t steal, and he expressed his disappointment to them. In terms of punishment, he said they took privileges away ‘like iPads and stuff like that’. He agreed that he was disappointed and embarrassed by what they had done. He denied he physically punishing the children, and neither did his wife. He did say, though, that they were harshly spoken to. He said there were raised voices and probably some swearing directed at the children, ‘probably the F word and shit’.
SM said that although there was not physical discipline around the chocolate stealing, he said he had physically disciplined his children in the past. He said it was not a regular thing, but if they needed disciplining, they would get a stern talking to, or maybe they would get a smack on the bum. At one point during his evidence, he agreed that he put Tabasco sauce in SRM’s mouth on three or four occasions before the chocolate incident for lying. In terms of SRM and discipline, he explained it this way:
ASo a stern talking to would be, you know, lying or stuff like that, and if they were caught out, then it would be, you know, a little bit more severe, then that would become a smack on the bottom.
It was suggested that given the children had not admitted stealing, at least initially, that lying and stealing had in the past resulted in a smack, why not on this occasion? SM responded that SRM was too old for smacking by that stage. He said that he had discovered that [taking away] technology hurts more than any physical abuse. He thought due to her size, she was too old to smack and had been since she was about 9 or 10 years old.
In terms of more generally how he parented. He agreed that he would speak to SRM about her weight (she had an eating disorder), and he would discipline her for taking food. He admitted that both he and his wife had called SRM a ‘fat cunt’ on a couple of occasions. He said he had never punched her but agreed with the suggestion that he had applied force to her shoulder during an argument. There was no further detail about what applied force meant. He said there was an occasion when, during an argument, he ‘lobbed’ (to use his expression) a knife into the sink. He denied he ever threw a knife at her.
He said if he hit SRM, it was always with his hand. He said he had not seen his wife hit SRM but had heard SRM screaming when JLM was in her vicinity. He agreed that SRM would hit her younger siblings from time to time and that behaviour could lead to physical discipline on occasion. He disagreed with the suggestion that he had been very harsh with smacking his children before the chocolate incident.
He admitted that there was an occasion when SRM had swung punches at him, and he had to restrain her physically. He rang the police on that occasion. He agreed he ‘flicked’ his son to the back of his head with the back of his hand for taking and eating a bowl of pasta from the fridge and then lying when he said he had not done so.
Discussion re motive to make up a complaint
While there was harsh parenting in the house, I do not consider it was so severe that SRM would decide to fabricate a false story about her grandfather to avoid getting into trouble with her parents. I note that the complaint about the pool incident occurred when she was not in trouble at all. Having considered the evidence as to motive, I reject the argument that SRM was motivated to make up her allegations because she thought she would get into trouble or was scared of what her parents might do to her. As I have earlier said, the fact that I have dismissed a potential motive for SRM to have complained or to have fabricated her evidence to the police and the court does not enhance SRM’s credibility or in any way strengthen the prosecution case.
Conversations between SRM and JM
I return to SRM’s evidence to mention the key parts of SRM’s evidence on the topic of conversations she had with JM about the accused. Firstly, I make clear that to the extent that which SRM gave evidence about things she said to her sister about what the accused had done was not led as evidence of complaint. I have not used the evidence for consistency of conduct purposes. I have not used the evidence for the truth of what is contained in the statements made to JM. The only use I have made of this evidence is that the inconsistencies in her evidence on this topic are relevant to assessing her credibility and reliability. That is the only use that I have made of this evidence.
During her evidence at trial, SRM said that she never spoke to JM about what the accused did to her. SRM said that JM had spoken to her about what JM says the accused had done to her, although, surprisingly, in my view, she could not remember any detail about the conversation nor when the conversation occurred, only that it occurred in her bedroom. I asked her how she recalled the conversation occurring at all, to which she said that she recalled JM telling her she was sorry but could not recall anything more than that.
SRM’s evidence in the first interview was that she told JM everything. In evidence in chief, she said she didn’t tell her anything and, during cross-examination, she only told JM snippets but, as I have just said, could not recall any of the details.
The defence submitted that the changes in SRM’s evidence on this topic had an adverse effect on her credibility and reliability. I accept that submission. I found it difficult to reconcile the markedly different accounts about what she may have said to her sister. I found it unlikely that she would be unable to recall really anything that was said between them apart from her sister saying sorry. I would have thought a conversation like this would have been etched in her memory - or, at the very least, the main things said between them.
Conclusion and findings (Count 2)
In my view, there are a number of material inconsistencies in SRM’s evidence the reasons for which were not adequately explained. The most significant inconsistency was the shift from saying she was tongue kissed by the accused all the time from 8 years of age onwards, to it only occurring on one occasion was irreconcilable. Given the material change, I cannot accept her evidence of the other touching she said occurred in the shed when she was 8 years old. As to seeing a photograph of the accused’s penis while in the shed, I found SRM’s evidence inconsistent as to the circumstances in which she came to see the photograph. On at least one view of it, she stumbled across the photograph when she went into (as opposed to being asked to look) the recently deleted folder in the accused’s phone. If that were the case, then it would not amount to an unlawful sexual act. I am left unsure whether she saw the photograph at all, but at the very least, if she did, I cannot say whether it was shown to her by the accused.
There were other aspects of SRM’s evidence that caused me some unease, including the marked inaccuracies as to the timing events were said to have occurred, her inconsistent accounts as to how and why she came to have the accused phone, her inconsistent accounts about how many photographs of the accused’s penis she saw and by what mechanism and in what circumstances she saw them, the internal inconsistencies in her evidence about what JM told her when the two spoke (everything or nothing or just snippets).
As to the pool incident, there were inconsistencies in her evidence about the mechanism by which she got to be on the accused’s lap in the pool. That is whether she was sitting on TL’s feet for ‘three minutes’ before being manoeuvred from there to his lap or sitting beside TL and pulled from that position onto his lap. There is a doubt in my mind as to whether what she describes was possible given the depth of the pool and her age.
I have considered the complaint evidence in assessing her credibility. Whilst there is some consistency of conduct which does support her credibility it is not sufficiently powerful that it allays my concerns about SRM’s evidence.
I have earlier mentioned the prosecution submission that when considering the case against SRM and assessing her credibility, I should consider the improbability of both JM and SRM telling such strikingly similar accounts unless it were true (See MDM v The Queen [2020] SASCFC 80 at [14] (Kourakis CJ); Hoch v The Queen (1988) 165 CLR 292, 294- 295 (Mason CJ, Wilson and Gaudron JJ)). For reasons I have explained I am not prepared to reason in that way. If I am wrong about that, I can indicate that had I engaged in similarity of account reasoning given the differences in the complainants’ accounts it would not have caused me to change the view I hold about the unreliability of SRM’s evidence.
Because of my finding of guilt in relation to JM as I have earlier indicated, I am satisfied that the accused had an innate behavioural proclivity to commit the kind of offences alleged by SRM. Given the offending against JM, I consider it more likely that the accused would act on his behavioural proclivity and offend against SRM. I have taken that particular propensity into account, together with the evidence directly bearing on Count 2, in determining whether or not the evidence has proved the offending alleged against SRM. I have earlier directed myself as to the permissible and impermissible use of this evidence.
However, even when taking JM’s evidence into account, and accepting that makes it more likely he would offend against SRM in a similar way, given the multiplicity of inconsistencies in SRM’s evidence and other features of her evidence that cause me concern my doubts about her evidence remain.
I am not prepared to rely on SRM’s evidence beyond a reasonable doubt.
I find the accused not guilty of Count 2.
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