R v TWL
[2025] SADC 94
•24 July 2025
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TWL
Criminal Trial by Judge Alone
[2025] SADC 94
Reasons for the Verdict of his Honour Judge Muscat
24 July 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The defendant is charged with the offence of sexual abuse of a child, namely, his granddaughter, C.
It is alleged that when C was aged between about four years and 13 years and sleeping over her grandparents’ house, the defendant would enter her bedroom and lie in bed next to her when he believed she was sleeping. C alleged that the defendant would touch her on the vagina under her clothing. C said this would occur on every occasion that she slept at her grandparents’ house without her siblings there. The evidence was that C may have slept at her grandparents’ home, on her own, up to eight times a year, although the frequency of the sleepovers diminished when C’s family moved to another house some distance away. C also alleged a single occasion when she was aged eight or nine years and was sitting on the defendant’s lap while he was fixing a bike and he refused to let her go until she gave him a kiss on the lips.
C disclosed the touching to a friend when C was aged seven or eight years, but said the alleged abuse continued until she stopped staying over on her own at her grandparents’ home.
C reported the matter to the police in 2024.
C’s memory of the alleged abuse was limited. C was only able to recall two specific incidents of touching, one when she was aged four years and the other when she was aged seven or eight and a single incident when she alleged that she was told to kiss the defendant while sitting on his lap when aged eight or nine years and she gave him a ‘quick peck on the lips’. C could not remember any of the surrounding circumstances of these specific incidents. C could not remember any of the most recent sexual acts at all.
The defendant denied the allegations in a police interview. The defendant has no criminal history.
There was no supporting evidence for C’s allegations.
Verdict: Not guilty.
Criminal Law Consolidation Act 1935 (SA) s 50; Evidence Act 1929 (SA) ss 34CB, 34M, 34P, referred to.
Liberato v R (1985) 159 CLR 507; De Silva v R (2019) 268 CLR 57; R v Rezaei [2024] SASC 150, applied.
R v TWL
[2025] SADC 94Introduction
TWL (‘the defendant’) is charged with the following offence:[1]
Offence Details
Sexual Abuse of a Child (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars
TWL, between the 8th day of May 2012 and the 8th day of May 2022 at Nairne, maintained an unlawful sexual relationship with C, 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 genital area on more than one occasion; and
b. causing her to kiss him on the lips.
[1] Information dated 28 January and amended on 15 July 2025 (FDN 27).
The defendant and his wife are C’s maternal grandparents.
The defendant is alleged to have indecently assaulted C during occasions when C stayed overnight at her grandparents’ house. Over the relevant period, encompassed in the charge, C was aged between four and 13 years. It is alleged that whenever C slept over on her own and was in bed, either asleep or supposedly asleep, the defendant would enter the bedroom and lie next to C and touch and rub her vagina. There was also a single occasion, when C was aged eight or nine years. C said that this occurred when they were living on a farm. The defendant was fixing a bike. C said she was sitting on his lap. C alleges the defendant would not let her leave until she kissed him on the lips. C then kissed the defendant on the lips and then he let her off his lap.
Elements of the offence
The offence of sexual abuse of a child is comprised of the following elements, each of which must be proved beyond a reasonable doubt by the prosecution:
1.The defendant was an adult throughout the relevant period particularised in the charge.[2] This is not in dispute. The defendant was born on 25 November 1959.[3]
2.C was under the age of 17 years throughout the relevant period particularised in the charge.[4] This is also not in dispute. C was born on 8 May 2008.[5]
3.There existed a relationship between the defendant and C. This is not in dispute as the defendant is C’s maternal grandfather.
4.The defendant engaged in an unlawful sexual relationship with C. An unlawful sexual relationship is a relationship in which an adult engages in two or more sexual acts with or towards a child over any period alleged in the particulars.[6] An unlawful sexual act means any act that constitutes, or would constitute (if particularised), a sexual offence.[7] The prosecution has alleged sexual acts in the particulars which would amount to the offence of aggravated indecent assault (the defendant touching and rubbing C on her vagina)[8] or procuring C to commit an indecent act, namely to kiss him on the lips.[9]
The prosecution must prove that the defendant committed two or more of any of the particularised unlawful sexual acts.
5.The defendant knowingly maintained the unlawful sexual relationship with C. In this context ‘maintained’ has its ordinary meaning; that is ‘carried on’, ‘kept up’, or ‘continued’. In other words, there must be some continuity of sexual conduct and not merely isolated sexual acts. For example, it would not be sufficient if two or more sexual acts occurred on the same occasion.
[2] Criminal Law Consolidation Act1935 (SA) s 50(12).
[3] Exhibit P4 Agreed Fact 1.
[4] Criminal Law Consolidation Act s 50(12).
[5] Exhibit P4 Agreed Fact 3.
[6] Criminal Law Consolidation Act ss 50(2) and (5).
[7] See definition of unlawful sexual act in Criminal Law Consolidation Act s 50(12).
[8] In order to prove the offence of aggravated indecent assault, the prosecution must establish, beyond a reasonable doubt: (a) that the defendant assaulted C (which is an intentional and unlawful application of force); (b) the assault was committed in circumstances of indecency (namely circumstances that offend the community’s contemporary standards of propriety or decency and which has a sexual connotation or overtone to it, and (c) that C was aged under 14 years at the relevant time (which makes the offence an aggravated one).
[9] In order to prove the offence of procuring a child to commit an indecent act, the prosecution must establish beyond a reasonable doubt the following: (a) C was under the age of 17 years; (b) the defendant procured C; (c) to perform an indecent act towards the defendant.
Trial by judge alone
The defendant has pleaded not guilty to the charge and has elected to be tried by judge alone.[10]
[10] Notice of Election for Trial by Judge Alone made pursuant to s 7(1) of the Juries Act 1927 (SA) filed 13 March 2025 (FDN 13).
Issues in dispute
The issues in dispute are first, whether the alleged indecent touching of C’s vagina occurred and, secondly, in relation to C kissing the defendant on the lips, whether that act amounts to a sexual offence in the circumstances described by C.
Legal principles
The defendant is presumed to be innocent of the charge. He is not required to prove anything. The obligation is upon the prosecution to prove the charge and to do so beyond a reasonable doubt. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty.
The prosecution must also exclude as a reasonable possibility any matter raised by the defendant that might affect proof of the charge.
C’s evidence is critical to the prosecution case and, as there is no independent evidence to support C’s evidence of the alleged sexual abuse, it must be scrutinised with care.
Evidence
C was born on 8 May 2008. The defendant and his wife are C’s mother’s parents (hereafter ‘C’s grandparents’).
C has three siblings, H, who is her older brother,[11] and D and G, who are her younger brother and sister.[12]
[11] H was born on 22 February 2006: Exhibit P4 Agreed Fact 2.
[12] D was born on 3 October 2010: Exhibit P4 Agreed Fact 4. G was born on 9 April 2015: Exhibit P4 Agreed Fact 5.
The family lived in Mount Pleasant between 24 January 2008 and December 2015[13], after which they moved into a house they built on a farm property in Tungkillo and lived there until June 2018.[14] The family then resided in Victor Harbor until June 2020 before moving to Encounter Bay.[15]
[13] Exhibit P4 Agreed Fact 6; T146.
[14] Exhibit P4 Agreed Fact 7.
[15] Exhibit P4 Agreed Facts 8 and 9.
C and her siblings were home schooled from 2015 when the family moved to Tungkillo. Prior to this, C attended kindergarten, reception and years one and two at Birdwood Primary School when the family were living at Mount Pleasant.
C’s grandparents lived in Nairne. They would look after their grandchildren from time to time, usually only on weekends, as they both worked.
C described a typical sleepover as being dropped off or collected on a Friday night, going out for dinner with her grandparents and watching a movie together on either Friday or Saturday night.[16] C also said she would go shopping with her grandmother.[17]
[16] T 93-94.
[17] T 94; Exhibit P8 at [23].
Sometimes more than one grandchild would sleep over, but it was usually just one grandchild at a time.
C said she believed she started sleeping over at her grandparents’ home when she was aged four years.[18]
[18] T 28.
C agreed that her mother had told her she was that age when she started having sleepovers at her grandparents’ house.[19] C’s mother, J, admitted that before C was about to be interviewed by the police, J stated, in C’s presence, that C may have been aged four years when she started staying overnight at C’s grandparents’ home.[20]
[19] T 119-120.
[20] T 170-171.
C said she would either sleep there on her own or with her siblings.[21] C said that, as she was older, she slept over more frequently[22] and often on her own.[23]
[21] T 28.
[22] T 29.
[23] T 30.
J said that C would have slept over on her own between six to eight times a year.[24] The sleepovers reduced in frequency to about four times a year when the family moved to Victor Harbor because of the distance and reduced further during the Covid-19 pandemic.[25] By the time the family moved to Encounter Bay, J said C may have only had one or two sleepovers on her own.[26]
[24] T 151.
[25] T 152-153, 175.
[26] T 154.
C said that she stopped sleeping over when she was aged 12 or 13 years.[27] This also accords with J’s recollection.[28]
[27] T 28, 76.
[28] T 154.
C described sleeping in different rooms depending on which room was set up as the spare bedroom. There was either a queen or double sized bed in the spare bedroom. By reference to a hand drawn plan C created,[29] she described sleeping on her own in either ‘bedroom 2’ or ‘bedroom 3’ (the ‘spare bedroom’), depending on the bedroom her grandparents slept in over time.
[29] Exbibit P5.
She described sleeping in ‘bedroom 1’, which contained two single beds that had once comprised a bunk bed, only with one of her siblings.
The defendant’s wife, V, stated that H and C would sleep over together, starting from when H was aged around six years and C four years.[30] They slept together in a double bed in the front bedroom.[31]
[30] Exhibit P8 at [8].
[31] Exhibit P8 at [9].
V stated that the sleepovers usually occurred when one of the grandchildren had a birthday and they stayed over by themselves.[32] V sated that a grandchild would only sleep over on their own on a special occasion, such as a birthday, as this allowed them to spoil their grandchildren individually because it was a special occasion.[33]
[32] Exhibit P8 at [15].
[33] Exhibit P8 at [22].
V stated that when her daughter’s family moved to live at Tungkillo the double bed was removed and replaced by bunk beds inherited from J.[34] The bunk beds remained in the front bedroom for approximately two years, and this is where the grandchildren would sleep when they stayed over.[35] In around 2015 or 2016, V and the defendant painted the house and the bunk beds were moved into their bedroom, adjacent to the kitchen, and they moved into the bedroom at the front of the house. The bunk beds were separated so that they became two single beds.[36] In V’s affidavit, the front room described by C as ‘bedroom 2’ was not used as a bedroom where the children slept.
[34] Exhibit P8 at [16].
[35] Exhibit P8 at [18].
[36] Exhibit P8 at [18].
H stated in his affidavit that he started sleeping over at his grandparents’ home from when he was aged three of four years until early 2024.[37] He stated that when he was younger, he would often sleep over with either C or D and it was only in the last few years that he slept over on his own.[38] He stated that there were two bedrooms at the front of the house with the dining room in between and, at different times, either of the front spare rooms would be used as a bedroom.[39] H stated that the rooms had a single bed in them.[40] He also stated that there was a bedroom near the kitchen which had two ‘king single beds’ in it.[41]
[37] Exhibit P7 at [3].
[38] Exhibit P7 at [3].
[39] Exhibit P7 at [5].
[40] Exhibit P7 at [5].
[41] Exbibit P7 at [5].
H stated there was never an occasion when anyone else got into bed with him.[42]
[42] Exhibit P7 at [6].
V stated C would only have stayed at the house on her own during the time the family lived at Tungkillo once a year around C’s birthday.[43]
[43] Exhibit P8 at [21].
V stated that after the family moved to Encounter Bay from about 2018 to 2020, the grandchildren would only have stayed overnight on their own about once a year, usually on their birthday.[44]
[44] Exhibit P8 at [27].
V stated that the last time C stayed overnight would have been around C’s 12th birthday in May 2020, shortly before the Covid-19 restrictions came into effect.[45] From about mid-2020 and throughout 2021, V stated that the grandchildren neither visited or had sleepovers because of Covid-19 restrictions.[46] Further, in 2021, V had three separate operations to her shoulder, knee and elbow.[47]
[45] Exbibit P8 at [28].
[46] Exhibit P8 at [29].
[47] Exhibit P8 at [29].
V stated she never witnessed her husband act inappropriately towards C, nor did C present any behaviour to indicate she was afraid of her grandfather, nor want to have any contact with him.[48]
[48] Exhibit P8 at [33]-[34].
C detailed that when she would sleep over her grandparents’ home alone, the defendant would enter the spare bedroom that she would be sleeping in, lie down behind her in bed, when she was either already asleep or pretending to be asleep, and touch her vagina.
C said that if she was already asleep the movement of the defendant lying in bed behind her would wake her up. She said the defendant did not know that he had awoken her as she pretended to still be asleep.[49]
[49] T 46.
C described her first memory of being touched on the vagina in this way as occurring when she was sleeping in bedroom 2.[50]
[50] T 47.
C believed that this had occurred when she first started sleeping over on her own. She was uncertain whether she had started school.[51] C believed her family were still living in Mount Pleasant and that she might have been aged four or five.[52]
[51] T 47
[52] T 52.
C believed that she was lying on her side facing the opposite wall to where the bed was positioned in the room.[53] The bed in bedroom 2 was positioned against the left side of the wall.[54]
[53] T 47-48.
[54] Exbibit P5.
C believed that her grandmother had already gone to bed because it was late.[55]
[55] T 51.
C said the defendant was lying behind her and that she had woken up.[56] The defendant then placed his hand down the front of her pants and touched her on the vagina.[57]
[56] T 47.
[57] T 47, 50.
In cross-examination, C agreed that when she was interviewed by the police, she said that she woke up to the defendant coming into the room.[58] However, later in that same interview C said she remembered being asleep and waking up to feeling someone lying next to her and then realising it was the defendant.[59] C explained the difference in her interview as being that ‘[she] could just have been trying to get [her] words out’,[60] before saying, in response to a question about whether she could have been confusing different things that she thought had happened, that she was not sure.[61]
[58] T 110.
[59] T 111.
[60] T 111.
[61] T 111-112.
C said she did not think the defendant would have climbed over her to get into the position he was in on the bed.[62] C confirmed that she was not woken up by the defendant getting into the bed but that it was him lying next to her that caused her to wake up.[63]
[62] T 112.
[63] T 112.
C explained that she remembered the defendant ‘pushing’ his hand into her pants[64] and his hand was underneath her underwear.[65]
[64] T 50
[65] T 50.
C said the defendant then began rubbing her vagina.[66] C explained that the defendant was using his fingers to rub the inside and top of the lips of her vagina.[67]
[66] T 50.
[67] T 50.
C said that she did not move, the defendant did not say anything and nor did she.[68]
[68] T 51.
C was unsure how long the defendant was rubbing her vagina in this way.[69]
[69] T 51.
C believed this incident came to an end when, after she had become uncomfortable, she pretended to be waking up and started moving, which caused the defendant to stop what he was doing and leave the room.[70]
[70] T 51.
When asked how the defendant got off the bed, C said she believed he ‘might have just scooted down onto the end of the bed and got off that way’.[71]
[71] T 114.
C agreed that in a statement she made to the police, she said she could not recall whether the bed was a single, double or queen size,[72] while recalling that when she was touched when sleeping in bedroom 3 that occurred in a queen size bed.[73] In evidence, C explained that she believed it could not have been a single bed on the occasion she was describing because she remembered that she and one of her siblings had slept in a bed together in that room and a single bed would not have been large enough for both of them.[74]
[72] T 117
[73] T 117.
[74] T 118.
C was initially unable to remember how many times she was touched in this way, other than it happened more than twice in this bedroom.[75]
[75] T 52, 53.
Later in her evidence, C said she was touched in this manner every time she slept over on her own at her grandparents’ house.[76]
[76] T 61. C said, ‘When I was staying by myself, I don’t remember a time it didn’t happen’.
C recounted that this behaviour by her grandfather towards her also occurred when she was sleeping alone in bedroom 3.[77]
[77] T 53.
C recalled a specific occasion when she was aged seven or eight.[78]
[78] T 53.
C said she had been allowed to go to bed with an iPad that belonged to her grandparents. C said she was told she could use the iPad to play games before she went to sleep.[79]
[79] T 54.
C said she had been watching television in the living room and her grandmother was also about to go to bed when C went to her bedroom with the iPad.[80]
[80] T 55.
C said she stayed up playing games when she heard someone approaching the bedroom. She quickly turned the iPad off and pretended to be asleep so she would not get into trouble for staying up late.[81]
[81] T 54, 122.
C said she either placed the iPad on the floor or put it underneath the mattress.[82]
[82] T 55, 123.
C said that she opened her eyes and noticed that the defendant had entered the bedroom. He proceeded to get into bed and lay alongside her from behind and started to touch her as he had done on the other occasions.[83]
[83] T 54.
C described that she would have been wearing thermal underwear because the house was always cold, or she was wearing button up pyjamas and underpants.[84]
[84] T 56.
C described that the touching was always the same, the defendant would never say anything and nor would she. C said she would just lie there pretending she was asleep.[85] C said there were only ever two occasions where she acted as if she was waking up, which caused the defendant to stop what he was doing and leave the bedroom.[86]
[85] T 57.
[86] T 59-60.
C said she believed that her grandmother would have been in bed whenever the defendant came into C’s bedroom and touched her.[87] C also said that her grandmother was deaf and required hearing aids.
[87] T 73-74.
C said she was not sure whether the defendant was lying on or underneath the bed covers when he would touch her vagina.[88] It was put to C that in a statement she made to the police she said, in relation to the first incident she described occurring in bedroom 2, that she remembered her grandfather ‘lying on the bed and I think he was on top of the covers’.[89] When questioned about this, C said she was’ not 100% sure’ if the defendant was on top or under the covers because she ‘didn’t really take note of that’.[90] C said she was unsure if the defendant was lying on top of the covers how the defendant was able to place his hand inside of her pyjamas and underwear to touch her vagina.[91] In re-examination C said she ‘was more focused on making sure that [she] was acting as if [she] was asleep’[92] than whether the defendant was on top of or underneath the bed covers.
[88] T 137-139.
[89] T 138.
[90] T 138.
[91] T 139.
[92] T 141.
C described one occasion when she and the defendant were sitting together in an ‘egg chair’ when he asked her what colour and kind of underwear she was wearing that day and then moved the top of her pants to have a look.[93] C confirmed that this only ever happened once and believed she was aged five or six and that this was while the family were living in Mount Pleasant.[94]
[93] T 61.
[94] T 62.
C said she would have baths at her grandparents’ home and when she was older would take a shower. C also said the defendant would always be involved in the baths. C said she would usually have a bath after dinner. She said the defendant would enter the bathroom multiple times while she was in the bath to check on her and sometimes would sit at the end of the bath. C said he would always be looking at her ‘vagina and stuff’.[95] C said she was not mistaken about the defendant looking at her crotch when she was in the bath.[96] C said when the defendant was not in the bathroom, he would be outside underneath the verandah and she would hear him ‘lingering around the window of the bathroom’.[97] C later clarified that the blind in the bathroom was always down and although she did not actually see the defendant looking through the window she could see a ‘shadow’ at the window and ‘just felt like he was there’.[98] C agreed that she never actually observed him staring at her in the bathtub from outside, it was ‘only a feeling’.[99]
[95] T 63.
[96] T 99.
[97] T 64.
[98] T 97.
[99] T 98.
C agreed that there were bubbles in the bath but was reluctant to acknowledge that the bubbles would have covered her body.[100]
[100] T 98-99.
C described one incident, which is the basis of particular (b) of the charge, as occurring when the family was living at Tungkillo.
C said she and her siblings were home and the defendant was looking after them. C said the defendant was underneath the verandah fixing a bike when she went out to ask him a question.[101] C said she believed her siblings were inside the house.
[101] T 67-68.
C said she was aged eight or nine years at the time.[102]
[102] T 69.
C said the defendant asked her to sit on his lap. C described sitting on his left leg facing inwards and between his legs.[103]
[103] T 68.
C said the defendant would not let her get off his lap unless she kissed him on the lips.[104]
[104] T 68.
C said that she would not kiss him and when she tried to get off, the defendant kept her on his lap using his arms.[105]
[105] T 68.
C said she was feeling uncomfortable and wanted to leave so she kissed the defendant on the lips.[106]
[106] T 68.
C described the kiss as ‘just a quick peck on the lips’.[107]
[107] T 69.
After C kissed the defendant, she said he let her get off his lap and she walked back inside the house.[108]
[108] T 69.
C said it was not common to kiss her grandfather and that the last time she remembered kissing him was when she was aged ‘three or something’.[109]
[109] T 69.
C said the defendant would tell her that she was his favourite, and that he would buy her extra things and give her extra treats without her siblings knowing.[110] C said he told her to keep this a secret from her siblings.[111] C said the defendant would get her lollipops and special desserts at Christmas time that he knew she liked.[112]
[110] T 71.
[111] T 71-72.
[112] T 72.
C said that once the family moved to Victor Harbor the sleepovers became less frequent and she started refusing to go unless she was with another sibling, usually D.[113]
[113] T 77.
C said she told her parents that she was too scared to go on her own because the house was haunted. C was told she was being dramatic but eventually her parents ‘just stopped fighting with her’ on going and she was no longer interested as she was getting older.[114]
[114] T 77-78.
Complaint evidence
C said when she was aged seven or eight, she disclosed to her best friend, M, what her grandfather was doing.[115]
[115] T 78, 123.
C said she got to the point where she had become so uncomfortable with what was happening that she needed to tell someone because she was not sure if it was normal.[116]
[116] T 79.
C said when their families were out for lunch at a café she and M went for a walk around the café’s garden. C said she told M that whenever she went over to her grandparents’ house by herself that her grandfather would come into the bedroom, touch her and make her uncomfortable.[117]
[117] T 78.
C said she told M that her grandfather would touch her on the vagina.[118]
[118] T 79.
C said that after making this disclosure to M they returned to the café and she did not disclose to her family what the defendant was doing to her. C said she did not really know how to tell them, and it was something that she was scared to share with her family.[119]
[119] T 79.
C said she spoke to M about it on later occasions before writing her mother a letter that led to C reporting the matter to the police.
In cross-examination text communications were put to C, in which C told M that she had told the police that M was the first person to whom she disclosed the touching. When M said that she remembered something but was not 100% sure as her memory was ‘a bit foggy’, C sent M a text detailing how and where she was being touched by the defendant, after which M replied that had ‘helped re-jog [her] memory’.[120]
[120] T 128-133.
M said she and C were friends in primary school and have remained close since.
M said she was in year one when she first met C, who was then in reception.[121]
[121] T 188.
M gave evidence that when she was aged about six or seven years, C told her she was being touched inappropriately by her grandfather.[122] M said she could not recollect the words used by C and does not remember the circumstances of this disclosure, such as where they were or what they were doing.[123]
[122] T 189.
[123] T 189.
M said she had a conversation with C in 2023, either over the phone or through Snapchat messages, when C was venting about personal issues, during which it brought back a memory of C disclosing, when M was aged six or seven years, that C had been touched inappropriately by her grandfather.[124] M agreed that until C raised the topic in 2023, M did not have a memory of the actual words C had used when C was disclosing to her that C had been touched inappropriately by her grandfather.[125]
[124] T 190.
[125] T 194.
M agreed that she and C were texting each other in May 2024 and C disclosed to her that she had reported the matter to the police and told them that M was the first person she had made a disclosure to, and that the police may want to speak with M about that. M agreed that C provided some of the details, however stated that while she remembered the conversation took place when M was aged six or seven years, she could not remember what C told her other than C said she had been touched inappropriately by her grandfather or words to that effect.[126]
[126] T 198-199.
C’s disclosures to M amounts to evidence of complaint pursuant to s 34M(3) of the Evidence Act 1929 (SA).
This evidence is relevant as informing when and how C’s allegations that she was sexually assaulted by the defendant first came to light and as evidence of the degree of consistency of her conduct.[127]
[127] Evidence Act s 34M (4)(a).
C’s disclosure to M is not evidence of the truth of what she told M about the alleged sexual abuse.[128]
[128] Evidence Act s 34M (4)(b).
There may be varied reasons why and when C made her complaint to M.[129] C explained her reasons for telling M when she did.
[129] Evidence Act s 34M (4)(c).
It is a matter for me, as the trier of fact, to determine the significance of the complaint evidence in the circumstances of this case.
Discreditable conduct
C’s evidence that the defendant would ‘glance’ down at her vagina whenever she was in the bath and of the single occasion that he asked her about the colour of her underwear and then pulled the waistband of her pants to see for himself, amounts to discreditable conduct on his part.
This evidence was presented by the prosecution to demonstrate that the defendant had a sexual interest in C and that he acted upon that interest in touching her on the vagina when he believed she was sleeping.
I first have to accept C’s evidence and secondly, find that it demonstrates the defendant had a sexual interest in C that he was prepared to act upon in touching C, in the bedroom as she described, before the evidence can be used in the way contended for by the prosecution.[130]
[130] The permissible use of the evidence pursuant to s 34P(2)(b) of the Evidence Act.
It is an agreed fact that the defendant’s phone and laptop were seized by the police following his arrest on 6 May 2024 and examined. No items revealing a sexual interest in C or children were located.[131]
[131] Exhibit D3.
I found C’s evidence of the single occasion she said the defendant asked her to tell him the colour of and type of underwear she was wearing while the two of them were sitting on the egg chair not convincing. C’s evidence about this was vague and lacked any contextual detail sufficient for me to make a finding that it occurred as she remembered it. Secondly, even if it could demonstrate a sexual interest in C, then it is strange that this was the only instance of it occurring.
Similarly with C’s evidence of the defendant looking at her vagina in the bath, I find that there is a reasonable possibility that C may have misinterpreted this. There is no dispute that the defendant ran the bath for C nor that he may have helped her in and out of the bath and wrapped a towel around her. However, I am not prepared to accept C’s evidence that the defendant was frequently in the bathroom looking at her vagina or her evidence that she had a feeling that he was looking in at her in the bath through the blinds from underneath the verandah. C’s reluctance to countenance the possibility that there were bubbles in the tub when she was having a bath also suggests that she had convinced herself that this allowed the defendant to look at her vagina as otherwise her body would be covered by the bubbles.
I consider it is a reasonable possibility that C may have engaged in retrospective reflection to determine if there was any inappropriate conduct by her grandfather towards her that might possibly explain why he was entering the bedroom while she slept and touched her vagina.
As I am not satisfied about C’s evidence on these two topics, I have not used the evidence for the purpose contended for by the prosecution in my consideration of the charge.
Defendant’s police interview
The defendant was arrested at his home on the afternoon of 6 May 2024. The defendant cooperated with the police investigation.
The defendant was conveyed to the police station where he participated in an interview.[132]
[132] Exhibit P6.
During the interview, the defendant:
·denied the allegation that over a lengthy period of time there were multiple occasions when he sexually abused C, responding by stating that he was in shock at the allegation and that ‘I have never touched any of my grandchildren. Never’;
·said that he enjoyed a really good relationship with C and that ‘this has come out of the blue and it’s blown me away’;
·denied that he would enter C’s room after she fell asleep and lie behind her, place his hand under her clothes and rub her vagina;
·said there were a few occasions when C was aged about four or five years when she was in the same bed as he and his wife;
·generally, they would give the grandchildren an iPad to sleep with and he never sat with them to read a book or ever lie with them;
·said they would generally have only one grandchild stay overnight so that they would be able to spend quality time with that grandchild;
·said ‘I have not molested C. I have not molested C ever … no I have not molested her. I’m telling you now. I looked after these kids. I love these children but to say that every time she came over I physically molested her vagina … ’;
·denied there was ever any occasion when he may have touched C’s breast;
·agreed that he would set up the bath for the grandchildren and take them out and dry them but there was never any time where he was lying in bed next to C while she was sleeping; and
·said ‘I’ve never laid with [C] in her bed and physically molested her. Never. And I’m … quite sick, it’s taken me for six, as it would anyone, I am sure. But Wow’.
Defendant elects not to give evidence
The defendant elected not to give evidence. No adverse inference can be drawn against the defendant for this decision. His decision not to give evidence cannot be used as a makeweight for the prosecution’s evidence.
Defendant’s lack of criminal history
The defendant does not have any criminal history,[133] which is some evidence of his good character.
[133] Exhibit D2.
The fact the defendant is a person of good character is relevant to the likelihood of him having behaved in the way alleged by C.
Further, the defendant’s good character may support his credibility, in the sense that he is less likely to lie or give a false account when answering questions in his police interview.
The weight given to the fact the defendant is a person of good character is a matter for me to decide when considering the case.
Forensic disadvantage
There has been a significant delay between the commencement of the alleged sexual abuse, when C was aged about four years, and trial, a period of 12 years. As a result, the defendant has suffered a significant forensic disadvantage and this is a matter that must also be taken into account when scrutinising C’s evidence.[134]
[134] Evidence Act s 34CB.
The disadvantage in this case involves the difficulty in now ascertaining with any degree of certainty, first, the frequency that C stayed over on her own, and secondly, the rooms C slept in, and the bed C was sleeping in when she was allegedly being sexually abused.
The witnesses each have different recollections of these matters, and so it places the defendant at a significant disadvantage in now being able to properly test C’s evidence, particularly as her evidence was, in many respects, vague and lacking in detail.
It is fair to say that the number of sleepovers both C and J claimed to have occurred might have been overestimated. When one considers J’s evidence, that each child slept over on their own six to eight times a year and would also sleep over together, the number of sleepovers at the defendant’s home each year becomes extremely high. It must also be remembered that C’s father, M, worked on a fly-in-fly-out basis, predominantly three weeks away and one week at home. This means that in the week he was home, it is unlikely any of the children would have slept over at their grandparents’ home.[135]
[135] Exhibit P6 at [5]. See also J’s evidence at T 155, 157.
Consideration
To find the defendant guilty, I must accept that C’s evidence, of having been sexually assaulted by the defendant on at least two separate occasions, satisfies the high standard of proof required in a criminal trial.
C’s reliability and credibility are essential in determining whether the prosecution has proved the charge beyond a reasonable doubt.
As the defendant participated in a police interview, I would necessarily have to reject what he said as being a reasonable possibility before I could be satisfied beyond a reasonable doubt of C’s evidence that she was sexually assaulted as she described. I am also required to take into account the defendant’s good character in the manner outlined earlier when considering whether the prosecution has proved the charge beyond a reasonable doubt. I have already noted the significant disadvantage the defendant faces in defending himself as a result of the lengthy passage of time since the alleged abuse began and have taken this into consideration in considering the evidence presented to the court.
It must be understood that in assessing the evidence in a criminal trial, it is not simply a matter of preferring C’s evidence over what the defendant has said in his police interview. The court must be satisfied beyond a reasonable doubt that the prosecution has proved the charge against the defendant upon a consideration of the whole of the evidence.[136]
[136] R v Schulz (2016) 126 SASR 476, per Vanstone J.
As was discussed during the addresses, this is a case in which the court is obliged to approach a consideration of the evidence and whether it is capable of proving the charge beyond a reasonable doubt in the manner referred to in Liberato v R. [137] This approach was reaffirmed by the High Court in De Silva v R[138] and has been recently applied in R v Rezaei,[139] where the Court of Appeal made it clear there should be no departure from what has been approved by the High Court as the direction that must be given in such a case.
[137] (1985) 159 CLR 507.
[138] (2019) 268 CLR 57 at [12].
[139] [2024] SASCA 150 at [88].
There is no independent support for the evidence of the sexual abuse alleged by C.
C presented her evidence in a simple manner. When she was unable to remember something, she would say so, although, at times, it was apparent she was recalling periods through what others may have told her. For example, her mother telling her that she first started sleeping over at her grandparents’ house from the age of four years and linking this to her memory of when she was first touched by the defendant. I have also already observed that C has likely engaged in some retrospective reflection on what she may have misinterpreted as inappropriate behaviour by the defendant.[140]
[140] See [100-101].
There was no dispute that there were opportunities for the defendant to have engaged in the conduct alleged by C, although on the evidence of V it would appear that once C’s family moved to the Fleurieu Peninsula, in June 2018, C may have only slept over on her own once or twice between the ages of 10 and 12 years.
There were some aspects of C’s evidence that were criticised by the defence, namely, that her evidence of the abuse she could recollect lacked any detail of the surrounding circumstances preceding or following the memory she said she had of the two specific occasions she was able to recollect. C generally had a poor memory of key events and was uncertain when answering questions, often responding with ‘I’m not too sure’, ‘I’m unsure’, ‘that’s possible’ or ‘I believe so’.
Further, it was submitted that it is surprising C was only able to recollect two occasions of being touched on the vagina while in bed when she was first aged four years and next when she was aged six or seven years, and despite claiming that she was touched in this way each time she slept over her grandparents’ house she could not recollect an occasion that was more recent than that, not even the last occasion she was allegedly touched, which was only three years before she was interviewed by the police. C’s failure to recollect more occasions, particularly more recent ones, and any of the surrounding circumstances, is surprising given the evidence that C was likely sleeping over alone on special occasions, such as her birthday, which one would expect to have been memorable for her. It was submitted that the reliability of C’s memory of being sexually abused when she was aged four years must be questioned, as C is unable to remember the more recent abuse, especially as the frequency of the sleepovers reduced significantly once the family moved to the Fleurieu Peninsula and those are the occasions that one would expect would be more readily remembered.
There was also a valid criticism of C’s evidence of when she was touched while sleeping as she was unable to state whether the defendant was under or over the bed covers when he was in bed with her. C told the police that the defendant was lying on top of the bed covers, which would make it difficult for him to have touched her in the way she described without moving the bed covers. C was simply unable to explain this in her evidence. The position of the defendant on or under the bed covers is an important detail as it affects the plausibility of the touching occurring as C described it.
There was a conflict between C’s evidence that she always slept in a double or queen-sized bed and the affidavit of V, who stated that from 2015 or 2016 there was no longer a double bed in the spare room, which then only had either the bunk bed or two single beds in it. C’s evidence was also inconsistent with H’s affidavit in which he stated that he remembered there only being single beds in his grandparents’ house for the children to sleep in. There is the further difficulty that C said she was being touched while she slept in ‘bedroom 2’ and in V’s affidavit she said that ‘bedroom 2’ was never used as a bedroom. These matters, which arise on the prosecution’s own case, affect C’s reliability in relation to the alleged abuse.
C also had difficulty remembering or explaining how the defendant got into bed on the occasion she was on the iPad, and how he got off the bed on all of the occasions after the abuse ended. Of course, if C was sleeping in a single bed, then it would have been much harder for the defendant to have got on and off the bed without C knowing how he did that.
In relation to C’s evidence that the defendant asked her to kiss him on the lips while she was on his lap, I find it is a reasonable possibility that, if this occurred, C has misinterpreted the request as being sexual in nature when it could have simply been as innocent as a grandparent asking for a kiss from their grandchild. Moreover, the nature of the kiss C described as ‘just a quick peck on the lips’,[141] is more in keeping with the sort of kiss a grandchild would give their grandparent if asked and far from it being indecent in nature. What I also found surprising about this evidence was that if it was a sexual act, as alleged by the prosecution, then it is remarkable that C did not say the defendant ever asked her to kiss him on the lips again, despite there being countless opportunities for him to have done so. This reinforces my view that if this kiss did happen, then C has possibly misinterpreted it, as she has with the bath incidents and the egg chair incident.
[141] T 69.
I have previously found that I was not satisfied about the discreditable evidence led by the prosecution and there was no evidence located on the defendant’s phone or laptop demonstrating a sexual interest in C or children.
I acknowledge that the court is not required to determine whether to accept beyond reasonable doubt that all aspects of C’s evidence is credible and reliable nor the precise number of occasions of the alleged unlawful sexual acts. I need only be satisfied that at least two of the unlawful sexual acts alleged have been proved beyond a reasonable doubt.
I have carefully assessed C’s evidence, and it has not satisfied me that two or more unlawful sexual acts have been proved beyond a reasonable doubt. There are simply too many deficits in the evidence to safely rely on C’s evidence to prove the charge to the requisite standard in a criminal trial.
I have also carefully considered the defendant’s police interview. There was nothing in his presentation that suggested he was being untruthful.
He appeared to be genuinely shocked at the allegations he sexually abused C.
I cannot accept the prosecution’s submission that the defendant’s expressed shock is attributable to him being informed that C was actually awake when he was in bed with her and touching her vagina when he believed at the time that she was asleep. In other words, it was contended he was in shock because he had believed what he had done to C had gone undetected by her. That is not how I interpreted his shock during questioning.
I also do not accept the prosecution’s submission that the defendant’s account to the police can be rejected because he was adamant that he had never laid down in bed with C. Indeed, the defendant said he had never laid down with any of his grandchildren. The prosecution submitted such a claim is implausible. However, the prosecution did not lead any evidence from V, J, or any of the other grandchildren, that the defendant had ever laid down in bed with his grandchildren to contradict the defendant’s claim in his police interview. Indeed, H stated in his affidavit that aside from when he was very young and got into bed with his grandparents when he was scared, there was never a time when anyone got into the same bed as him,[142] which supports the defendant’s account to police. I cannot reject the defendant’s claim that he never laid down with C as being reasonably possibly true.
[142] Exhibit P7 at [6].
I am not in a position where I can reject, as a reasonable possibility, what the defendant said during his interview.
This alone must lead the court to return a verdict of not guilty to the charge.[143]
[143] See De Silva v R op cit.
Conclusion
Having assessed and considered all of the evidence presented to the court, I am not satisfied beyond a reasonable doubt that two or more unlawful sexual acts alleged by C have been proved.
My verdict should not be interpreted as a finding that C has deliberately lied about being sexually assaulted by the defendant. I do not make that finding in this case. The verdicts are simply a product of the exacting standard of proof in a criminal trial. It is not enough for the prosecution to have proved that what C said, possibly, or even probably, happened as she described. Proof beyond a reasonable doubt is much more onerous than that. In a case where the allegations have been strenuously denied by the defendant, who is of good character, in the absence of any supporting evidence for C’s allegations, having scrutinised with care what C stated and considering all of the other evidence presented to the court, such a demanding standard of proof has not been reached in this case.
Verdict
It is for these reasons that I am not satisfied beyond a reasonable doubt that the prosecution has proved the charge against the defendant.
I find the defendant not guilty.
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