R v Van Heerde (No 2)

[2021] SADC 65

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v VAN HEERDE (No 2)

[2021] SADC 65

Criminal Trial by Judge Alone

Reasons for the Verdict of her Honour Judge Tracey 

4 June 2021

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES

CRIMINAL LAW - EVIDENCE - GENERALLY

CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY

The accused is charged with maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act - offences alleged to have been committed by the accused against his goddaughter between September 2017 and December 2018 - accused had made statements to police which at trial he said were made as a consequence of his fear of the complainant's father who he alleged had a history of aggression - evidence of the accused's character - motive of the complainant - complaint evidence - accused elected for trial by judge alone.

Verdict: Guilty.

Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 13BA, 13BA(5)(c), 18(1)(d)(ii), referred to.
R v Mann [2020] SASCFC 69; R v Chinn (1985) 157 CLR 671; Killick v The Queen (1981) 147 CLR 565; Shaw v The Queen (1952) 85 CLR 365; R v Soma (2003) 196 ALR 421; R v Manunta (1989) 54 SASR 17; R v Thompson (2008) 21 VR 135; Douglass v The Queen [2002] HCA 34, considered.

R v VAN HEERDE (No 2)
[2021] SADC 65

Criminal

1. Glen Steven Van Heerde (‘the accused’) is charged with maintaining an unlawful sexual relationship with a child. He pleaded not guilty to the charge and elected to be tried by judge alone.

2. It is alleged that the accused committed the offence against the complainant, MZ, who is his goddaughter. The charge is as follows:

   Statement of Offence

   Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   Glen Steven Van Heerde between the 2nd day of September 2017 and the 17th day of December 2018 at Seaford and Moonta, maintained an unlawful sexual relationship with MZ, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:

   a)     inserting his finger into her vagina on more than one occasion; and

   b)    touching her vagina on more than one occasion.

   Prosecution case

3. The charged offending relates to acts alleged to have taken place over a period of approximately 15 months from September 2017 through to December 2018, when MZ was aged between nine and 10 years.[1]

   [1]     T5-6.

4. The accused is a long-term family friend and godfather to MZ. It is alleged that the accused touched MZ on the outside of her vagina and penetrated her vagina with his finger on multiple occasions. MZ is the eldest child of MP and KT. She has three younger brothers.[2]

   [2]     T6.

5. On the prosecution case, on at least seven separate occasions, the accused committed sexual acts upon MZ.[3] The final time the accused is alleged to have touched MZ was on 16 December 2018, when MZ made a complaint to her mother, KT, and then spoke to her father, MP. MP telephoned the accused and spoke with him. Shortly thereafter police were contacted.[4]

   [3]     T6.

   [4]     T9.

6. On 17 December 2018 and 17 June 2019, Detective Brevet Sergeant Zoe Gooch (‘DBS Gooch’) conducted interviews with MZ pursuant to s 13BA of the Evidence Act 1929 (SA) (‘the Evidence Act’).[5]

   [5]     T10; 12.

7. DBS Gooch arrested the accused at his home address on 17 December 2018. He participated in a record of interview on that day.

8. On the prosecution case, the accused made admissions during the interview, that on three different occasions he committed the offence of aggravated indecent assault against MZ by touching her on the outside of her vagina with his hand.[6]

   [6]     T10.

9. It is the prosecution case that while the accused took some responsibility for his offending, he sought to minimise and downplay the true extent of what occurred. The prosecution says that certain aspects of the accused’s account closely, if not identically, matched aspects of MZ’s account.[7]

   [7]     T10-11.

10. The accused denies he touched MZ as she has alleged. It was the defence case that the accused had not committed any sexual act against MZ and that the statements he made during the course of the police interview were as a result of his fear of MZ’s father.[8]

    Elements of the offence

    [8]     T174.

    Maintaining an unlawful sexual relationship with a child

11. The offence of maintaining an unlawful sexual relationship with a child is made up of four elements, each of which must be proved by the prosecution beyond reasonable doubt. As discussed by Chief Justice Kourakis in R v Mann,[9] the elements of the offence are:

    [9] [2020] SASCFC 69.

    (1)     The accused knowingly maintained a relationship with MZ.

    That element is made up of three separate parts, namely:

    ·    There must be a relationship between the accused and MZ that comprised of more than the alleged sexual acts.

    ·    The accused must have maintained that relationship, that is, carried on, kept up or continued the relationship.

    ·    The accused must have maintained that relationship knowingly, that is, he had knowledge of the sexual acts he performed and the contextual circumstances in which he performed the acts which comprised the relationship.

    (2)     That the accused was an adult during the relevant period.

    (3)     That MZ was under the prescribed age, being 17 years of age.

    (4)     That in the course of the relationship, the accused engaged in two or more unlawful       sexual acts with or towards MZ.

12. The accused denies having engaged in any unlawful sexual activity with MZ.

13. Particular (a) of the Information relates to the offence of unlawful sexual intercourse, while particular (b) relates to the offence of aggravated indecent assault.

    Unlawful sexual intercourse with a person under 14 years of age

14. There are two ingredients of this offence, each of which the prosecution must prove beyond reasonable doubt.

    1.     The accused had sexual intercourse with MZ.

    Sexual intercourse – sexual intercourse includes penetration of the vagina or labia majora by any part of the body of the accused.

    2.     That at the time the complainant was under the age of 14 years.

    Aggravated indecent assault

15. The prosecution must prove beyond reasonable doubt that:

    1.     The accused intentionally assaulted MZ.

    2.The assault was accompanied by or occurred in circumstances of indecency; that is, the indecent circumstances must contain a sexual connotation and the application of force was unlawful.

    3.MZ was under the age of 14 years at the relevant time.

    General directions

16. I direct myself as follows:

    ·The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt.

    ·The burden of proving the charge lies wholly on the prosecution and the accused is not obliged to prove anything. Nothing short of proof beyond reasonable doubt will do. It is not sufficient for the prosecution to show a mere suspicion of guilt or even to demonstrate probable guilt. I must be satisfied that the prosecution has proved beyond reasonable doubt each element of the offence.

    ·At all times, it is for the prosecution to satisfy me that MZ is both an honest and a reliable witness beyond reasonable doubt.

    ·The accused gave evidence on oath in court. He was not obliged to do so. He could have remained silent in answer to the charge, leaving the prosecution to satisfy me of all the elements of the charge against him. He is entitled to have his evidence assessed, and evaluated in the same way as all other witnesses in the case. I am not required to be satisfied of the accused’s version of events. The burden of proof lies with the prosecution. Part of the relevance of the version of events put forward by the accused is to consider whether it assists in casting a reasonable doubt on the prosecution case.

    ·The accused answered questions during the police interview. This does not mean that the accused takes on any burden of proof in the trial. He does not at any time have to prove his innocence. It remains a fundamental requirement that the prosecution has the burden of proof and to the standard of beyond reasonable doubt.

    ·If, after full and careful consideration, I am unable to decide where the truth lies or who is telling the truth, the prosecution will have fallen short of proving the case beyond reasonable doubt and my verdict should be one of not guilty.

    ·I must assess each witness as to their truthfulness and reliability, and must determine whether I can rely on the evidence of a witness. I can reject or accept all or part of a witness’s evidence.

    ·MZ, her father and mother gave evidence with special arrangements in place. I must not draw an adverse inference against the accused because of those arrangements, nor allow them to influence the weight that I give their evidence.

    Agreed facts

    1.     MZ was born on 3 September 2008.

    2.     The accused was born on 10 May 1977.

    3.On 4 December 2018 the band ‘Bon Jovi’ played a concert at the Adelaide Botanic Park.

    4.The Bureau of Meteorology maintains a weather station at Kadina, South Australia. This weather station is 12.9 kilometres from the township of Moonta, South Australia.

    4.The following table contains the maximum daily temperatures recorded at the Kadina weather station between 14 and 21 January 2018.

Date	Maximum temperature recorded (degrees Celsius)
14th	26.7
15th	31.6
16th	32.9
17th	39.8
18th	42.6
19th	45.2
20th	38.7
21st	39.7

5.MP did not tell the police when providing a statement that he had pictures of the accused drying out his dope in his parents’ caravan, he did not tell police that he had pictures of the accused growing marijuana at his place and he did not tell police that he had pictures of the accused’s brother and his grow rooms. MP did not tell police when providing a statement that if he needed anything to smoke he would get it through the accused nor that ‘we used to smoke and stuff’.

Evidence of MZ

1. There was no objection to the admissibility of the record of MZ’s interview and I allowed the evidence to be admitted in that form.

2. I was satisfied of MZ’s capacity to give sworn evidence at the times the recordings were made.

3. Pursuant to s 13BA(5)(c) of the Evidence Act, I ruled that it was in the interests of justice to permit MZ to be further examined, cross examined and re‑examined in accordance with applications outlined by counsel. 

   First interview 17 December 2018

4. MZ told DBS Gooch that ‘last night’[10] when the accused came around for dinner and to watch the cricket, she was in her bedroom and asked the accused if he could tickle her a bit. She said he tickled her legs and then her back, on her tummy and her bottom, then he did it down her pants on her ‘privates’,[11] which later in the interview she described as her vagina. She said he had done this more than once. She said, ‘I felt okay with it because it tickled, and the second time I didn’t like it, so … not that long after he did it I went to my mum’s room and told her everything.’[12] At first, they were playing a game where the accused would lay her down on the bed to put her to sleep. He started to tickle her and was laughing a bit. He was making weird noises that were not real words. He tickled her for a short time and then they had dinner. She said she did not like when he did it the second time.

   [10]   MFI P2 p.3.

   [11]   MFI P2.

   [12]   Ibid p.4.

5. MZ said that the very first time the accused tickled her private parts was in the ‘big loungeroom’ where there is a fold out bed. The night before she and her brothers had a sleepover in there. She had been playing on the accused’s phone. He came in and started tickling her. He did it down her pants. Her mother was at work and the accused had picked her up from school. The accused stopped because her father came home.[13]

   [13]   Ibid p.4-5.

6. MZ said ‘…it’s the first time he ever did it because I’ve never felt it before. I was laughing a bit and it felt a bit tickly and weird at the same time’.[14]

   [14]   Ibid p.6.

7. She said she did not remember what she was wearing on that occasion because it was a long time ago. She said she was touched under her underwear and thought the accused used his fingers.[15]

   [15]   Ibid p.8.

8. MZ then described another time when the accused had tickled her on ‘the privates’. She said they were watching Big Bash cricket and her father was putting her little brother to sleep. She said she was just lying there and then he did it for an even longer time. He put his hand in and tickled her privates. Her father came out and the accused quickly stopped and made her sit up quickly like nothing really happened. They were just sitting on the couch watching television.[16]

   [16]   Ibid p.6.

9. She had been wearing her lavender cat pyjamas. She was asked how old she was when he tickled her when the Big Bash was on and she said she thought it was about the start of ‘this year’ and she would have been ‘about 9 ½ or something’.[17]

   [17]   Ibid p.8.

10. MZ was asked whether she could remember another time when the accused had tickled her on her privates. She said ‘Mmm, not really. I know well he’s done it a few times. Not every time because my Dad said um that he knows that I come up to him and ask him to give me like, like tickles and stuff, and then he doesn’t do it every time he tickles me and, and well only on some occasions.’[18] When asked whether she could remember another time that he touched her on her privates she said ‘Mmm, not really, I can’t really’.[19]

    [18]   MFI P2 p.6-7.

    [19]   Ibid p.7.

11. MZ’s attention was then returned to ‘last night’. She said the door was mostly closed when it happened the first time. Her brothers kept opening the door and being annoying. The first time it was open. The first time he did it she was wearing a pair of leggings and a t‑shirt and her underwear. The second time last night she had her pyjamas on. He tickled her under her underwear. She said ‘…he did it on top of my clothes, then under my clothes and my knickers, and then he just, and then he did it on my actual privates’.[20] When asked whether he did it on the inside or the outside of her privates she said, ‘On the outside I think’.[21] She said she thought he used his finger.

    [20]   Ibid.

    [21]   Ibid.

12. She said she told her Mum everything about it and then her Dad came in and she told him as well.

13. She said that she was aware her father had spoken with the accused who agreed that he tickled her on the legs and the bottom and said that it might have been an accident that he put his hands down her pants. She said ‘…I know it wasn’t because he lifted my pants up to put his hand down there.’[22] In the interview, MZ is seen to indicate by lifting her pants out with one hand and then places her hand down her pants.

    [22]   Ibid p.9.

    Record of interview 17 June 2019

14. MZ said she was there to talk about some other times when the accused put his hands down her pants.

15. MZ was asked whether something happened in Moonta. She said that one of the nights she was sleeping on the couch in the loungeroom because there was a cooler in there. The accused was sleeping on the floor next to her. She had woken up and told him she could not get to sleep. That was when he started putting his finger down her pants and touching her privates. She said she told him to stop because she needed to go to the toilet. When she came back from the toilet she asked him to do it again. He kept doing it and then it got a bit annoying because it did not tickle anymore, ‘…it got a bit hurting’.[23] She moved over and he stopped doing it. She said the accused touched on the inside and the outside of her vagina. She said, ‘Well when he did it on the inside, cause I’m not exactly sure how to say it but when, cause when there’s that part where it goes further down, he went, he did it there’.[24] She said it tickled and made her feel good. She said the accused was not exactly lying down. He was sort of lying on a side and sort of sitting up a bit. She had shaken the accused to wake him up. She was asked what she was feeling when the accused touched her. She said, ‘Well I felt a bit weird and, a bit good and ticklish at the same time.’[25] When she came back from the toilet it started getting a bit annoying and hurting so she just rolled over the other side so he could not do it anymore. It stopped tickling and it just felt a bit sore inside her vagina.

    [23]   MFI P4 p.5.

    [24]   Ibid.

    [25]   MFI P4 p.7.

16. MZ was asked to talk about another time that ‘it’ happened at home.[26]

    [26]   Ibid p.8.

17. She described an occasion where she ‘wasn’t exactly sure about it’.[27] It was at night and her parents were both at work. The accused came to look after MZ and her brothers. They were being noisy and silly. When the accused lifted her to take her to bed, she was not sure if the accused put his hands down her pants or not. She said he thought he did, and that he was giggling a bit.

    [27]   Ibid.

18. She was asked again whether she could remember another time it happened at home.  She said, ‘…well there’s all these other times it has happened…’.[28]  She said that most of the time it happened in the little loungeroom. Once when it happened he gave her a massage and he put his fingers down her pants and then stopped doing it for a bit and then she pointed her finger to her privates to tell him to keep doing it. Sometimes she would pinch or push him to keep doing it.

    [28]   Ibid.

19. MZ said the last time it ever happened it was in her bedroom and she was looking on his phone on the internet without asking him, which her parents told her not to. She was looking at arts and crafts. The accused lifted her up on his lap on her bed and started doing it while she was looking at the phone, and then the boys came in and she told them to go away. She then remembered that it was not the last time but it was another time when she was looking at arts and crafts because her door was open and the accused came in and asked her what she was doing. She said she would not show him and then he came in and lifted her up on his lap and started doing it while she was looking on his phone. She said he did it on the outside and on the inside, like pretty much all the times he used to do it. Because her brothers came in she told them to go away and did not want them to see it happening in case they told her mother or father. She thought her parents were there. She could not remember if there was cricket or football on. She thought it was some time last year, perhaps at the end of 2017.[29]

    [29]   Ibid pp.9-10.

20. MZ was asked about the very first time it happened. She said he did it on the foldout mattress in the big loungeroom. The first time the accused did it she said she did not know what it would feel like and she was wiggling and moving around a bit and he was laughing. He had picked them up from school. When she saw her Dad coming to the front door, the accused quickly stopped. She said he first did it on the outside and then he did it on the inside of her privates. It made her feel really ticklish because she had never felt it before and no-one had ever done that to her.[30]

    [30]   MFI P4 p.11.

21. The first time he did it she thought he did it for a pretty long time until he saw her father coming to the front door. None of her brothers saw because they were in the little loungeroom watching TV. She thought she was playing on the accused’s phone and then he came in to see what she was doing and she asked if she could have a massage. Then he did it on her back and arms and legs and shoulders and started doing it down her pants.[31]

    [31]   Ibid p.11-12.

1. MZ was asked about the last time it had happened. She said the very last time it happened the accused did it twice. He did it before dinner when her parents were there. The accused came over to watch cricket or footy and she asked him if he could do it in her bedroom and she was laying on her bed and he was sitting up and putting his hands down her pants. She had a pillow on her face because she was laughing. He touched both inside and outside her vagina. She said she had to get out because dinner was ready and she was sitting at the dinner table and it was still hurting a bit. She was asked what made it hurt and she said ‘Well I think cause he put, he put his finger in like that bit um, on your privates on the inside. He did it there and then it made it hurt after a while.’[32] She was asked how she knew whether he put his finger on the inside. She said:[33]

   Well, cause I could feel it on the outside because it could touch my underwear a bit and then when he did it on the inside it made it feel different to the outside… When he did it on the outside it, it didn’t feel, cause when he did it on the inside he, it felt a bit colder and then it got a bit warmer... When he first did it, he didn’t have his finger anywhere. When he first did it on my privates when he would start doing it, it started feeling a bit cold and then after he did it after a while it feels a bit warmer.

   [32]   Ibid p.13.

   [33]   Ibid p.13-14.

2. She was asked what she could feel when it was on the inside. She said, ‘It felt different because I could feel it moving a bit … on the inside of the vagina.’[34]

   [34]   Ibid p.14.

3. When asked if she could remember any other times, she said, ‘It happened at Moonta and in the big loungeroom. And that was one time. And then he did it in here [her bedroom] I think twice, and then the rest of the times were in the other loungeroom.’[35]

   [35]   Ibid p.14.

   Further examination and cross-examination

4. Pursuant to s 13BA(5)(c), I granted permission for MZ to be asked further questions by both counsel.

5. MZ was aged 12 when she gave evidence in court. She said in evidence that the first time the accused touched her privates, she was wearing the dress that she had on in her first interview.[36] At Moonta the accused was sleeping on a mattress. The mattress was about a foot away from the couch. When she was sleeping on the couch at Moonta, she was wearing a pair of shorts and a t‑shirt pyjamas.[37] She had knickers on. She was facing the end of the couch and he was facing her while he was on the mattress. His head was near her head and his feet were near her feet. When she came back from the toilet, she was in the same body position and he was in the same position, just like on his side but sitting up a little bit. She rolled towards the couch backrest and pushed his hand away.[38]

   [36]   T31.

   [37]   T35.

   [38]   T36.

6. The time when her mother and father were both at work at night and the accused came over to look after them where he lifted her up to take her to bed, she said he was holding onto her legs and her back. She thought she was wearing a nightdress with knickers.[39]

   [39]   T37-38.

7. The time the accused was at her house watching the Big Bash, it happened in the little loungeroom on the couch. Two of her brothers were there watching television on the floor. The accused touched her vagina on the inside. She said it felt weird and a bit ticklish. He did not say anything, he was just giggling a bit. She was giggling a bit and pinching him. Pushing him to make him keep doing it. On 16 December 2018, she had changed out of her clothes into her pyjama pants and t-shirt after dinner.[40]

   [40]   T40-41.

8. She agreed she spoke to her father again about what had happened after she had spoken with him on 16 December 2018, but all she said she could remember was when she told her parents that night in their bedroom. She said she thought she told her Mum first about Moonta and then her Dad in their bedroom. She could not remember what words she used when she talked about what happened at Moonta. She said she told her father what had happened and where, but could not remember what she said.[41]

   [41]   T43.

9. In cross-examination, MZ said the first time the accused had touched her privates, she had put shorts and t-shirt on after school.[42] The sofa was pulled out from the night before after a sleepover and she was pretty sure her brothers were in their room doing something.[43] She thought she asked the accused for a massage, but did not remember asking for cuddles at any time. She denied telling the accused words to the effect that she wanted cuddles like her Mum and Dad have in their bedroom sometimes. She said that conversation never took place and she did not tell the accused that she often heard loud noises from her parents’ room or that she had opened the door and seen her parents in bed together.[44]

   [42]   T56.

   [43]   T57.

   [44]   T58-59.

10. She denied that there was any time when she told the accused that she knew how babies were made, nor did he talk to her about that.[45] She denied jumping on a trampoline grabbing at the accused’s crotch on a number of occasions, or grabbing the accused’s brother David’s crotch at any time. She did not get told it was inappropriate. She did not do it. She agreed the accused would play a game with her and her brothers by drawing on her back and having to guess what it was.[46] When asked whether she had asked the accused to touch and tickle her between the legs she said, ‘Sometimes I would and sometimes I wouldn’t.’ ‘Sometimes he would just do it without me asking’. ‘It happened most of the time’.[47]

    [45]   T59.

    [46]   T62-64.

    [47]   T65.

11. When asked how many times she had asked the accused to touch her at Moonta, she said she could not really remember. She remembered the accused touching her twice at her home. He touched her twice at Moonta. She denied the accused ever got mad at her when he was looking after her. She did not think he had raised his voice to her at any time and did not ever swear at her.[48]

    [48]   T69-70.

12. At the time the accused was at the house watching the Big Bash, her mother was not home. It happened in the smaller loungeroom while two of her brothers were on the carpet. Her father was putting her youngest brother down. She said she could not really remember asking the accused to tickle her between the legs. She was asked whether when she asked the accused to tickle her between the legs, she meant having his finger on her vagina. She said ‘Yeah and I can’t remember if I really asked him to do it or not’.[49] The accused did not tell her to not ask him. She said she could not remember the accused walking in after he had got up from watching the cricket and saw her touching her own vagina. She said she did not remember any of that happening. She did not tell him not to ‘tell’ her father.[50]

    [49]   T73.

    [50]   T74.

13. MZ denied that before she went and spoke to her parents on 16 December 2018, she had asked the accused to touch her. She denied asking the accused why he was not married and did not talk about why he did not have a girlfriend. She did not talk to him about where children came from.[51]

    [51]   T76.

14. MZ said she was aware her mother went to a Bon Jovi concert. She was asked whether the accused came over before her mother went to the concert and said she could not remember. She could not really remember anything from that night. She could not remember if her mother had asked her if anything happened when she had gone to the Bon Jovi concert when she was speaking with her on 16 December 2018.[52] A number of questions were put to MZ regarding asking the accused to touch her and him explaining that it was inappropriate.

    [52]   T76-77.

15. On 16 December 2018 the door stayed open before dinner. She said her two younger brothers were not in the room when the accused touched her, but they kept coming in and being annoying, so she told them to get out. She had not been upset that the accused had touched her before dinner. It was at dinner that she was in some pain. She thought she had her pyjamas on after dinner when the accused came into her room. She said that she could not remember aspects, for example, saying to the accused ‘Please tickle me between my legs’.[53] She did not remember whether she told the accused ‘Touch the other spot’.[54] She did not know how long he was in her room after dinner.  She denied the accused got angry and raised his voice towards her in her bedroom after dinner, or that he told her not to ever ask again. Specifically, she denied he said, ‘Don’t you ever ask me to do that. You got it.’ He did not say with a raised voice ‘Have you fucking got it?’.[55] She did not start to cry when the accused was in her bedroom after dinner. She could only remember being upset when she was talking to her mother. She said she told her mother that the accused had put his hands down her pants on her vagina, but could not really remember what else she said. The accused was saying goodbye to her father out the front at the time. Her mother asked her where the accused had touched her and she had showed her where it was.[56]

    [53]   T83.

    [54]   T82.

    [55]   T83.

    [56]   T85-86.

16. She thought she told her father the same thing she told her mother. She could not remember telling him anything that happened on the night her mother went to the Bon Jovi concert and did not think the concert come up in conversation with him.[57]

    [57]   T88.

17. MZ did not think the accused stayed more than one night at Moonta. He slept on a normal mattress and she did not see him sleep on the sofa at any time. She did not think she asked the accused to touch her at any time then. She said that when she got back from the toilet she said, ‘I went back on the couch and he – I’m not sure if I asked him or not to do it but he then started putting his hands down my pants again’.[58]

    [58]   T92.

18. She agreed that when the accused was sleeping at Moonta, her brothers also slept in the loungeroom area. That was on the same night. The accused did not touch her at any time they were holidaying in Port Hughes.[59]

    [59]   T95.

19. MZ said she could not remember when the occasion where she had been uncertain if the accused touched her, had happened. She said she was ‘pretty sure’ he touched her when he lifted her up and had been wearing a nightdress with knickers. She said she was 100% sure that he touched her underneath her knickers. Only her brothers were home and it was a time when the accused walked her home from school.[60]

    [60]   T97.

20. She denied ever telling the accused she was afraid of her father and said she was not afraid of him. She denied her father had ever made her stand with her arms and legs out under an outdoor shower when he covered her with soap and touched her private parts, or that her father had touched her in an inappropriate way.[61]

    [61]   T98.

21. In re-examination, MZ said that when she woke in the morning after the accused had touched her vagina, the accused was sleeping on the floor on the mattress.[62]

    [62]   T104-105.

    MP

22. The prosecution made application for MP, MZ’s father, to give his evidence via CCTV, pursuant to s 13(1) of the Evidence Act. The application was opposed by defence counsel on the basis that it was important for the court to closely see the demeanour that would be exhibited by MP during the course of cross‑examination, given what defence counsel said was his ‘intimidatory and violent’[63] nature towards the accused. I allowed the application having considered that it was desirable to protect the witness from embarrassment or distress and that in any event, an assessment of MP’s demeanour would not be impinged in any way by such an arrangement.

    [63]   T4.

23. MP said he worked as a hospital orderly. At times he worked night shift. He met the accused when he was around seven years of age and attended primary school together. He described him as his best friend. The accused was the best man at his wedding and godfather to two of his children. They both loved sport and would watch football and cricket together. The accused celebrated special occasions with MP’s family and had attended family holidays.[64] There were occasions when MP and his wife had asked the accused to babysit their children. He had observed interaction between his children and the accused. They would ask the accused for tickles and play fight. MZ would ask the accused for massages and tickles which MP said he had not thought anything of.  He saw the accused tickle MZ or give her a back rub on many occasions.[65]

    [64]   T112-115.

    [65]   T123.

24. MP described a family holiday to Moonta mid-January 2018. The accused stayed with them for the last three nights. MZ slept next to the couch in the main living area where there was a split system air conditioning unit.  Mattresses were dragged out from the bedrooms. When he got up early to go out crabbing or fishing, he would see MZ asleep on the mattress. The accused was sleeping on the couch but sometimes was on the floor on a mattress. He said he was pretty sure he had seen MZ next to the accused on the mattress, but did not think anything of it. On quite a few nights MP’s sons slept in the loungeroom too.[66]

    [66]   T123-128.

25. On 16 December 2018, the family had celebrated one of his son’s birthdays. The accused had been there and later joined them to watch the cricket at their home. Every now and then the accused would leave the loungeroom to play with the boys. During that evening, he saw the accused come from inside MZ’s room.  The boys were making a lot of noise and he had gone down the hallway to tell them to be quiet. He saw MZ’s bedroom door swing open and the accused tell the boys to settle down and be quiet as well. After that, the accused left MZ’s bedroom and he and the accused walked back to the small loungeroom and continued watching the cricket.[67]

    [67]   T131-132.

26. Not too long after the cricket finished, the accused left. MP said his wife came in and he went with her into their bedroom. MZ was there crying. She told him that Uncle Glen had been touching her and had been massaging her and putting his hands down her knickers and up her top. She kept saying it had definitely happened, and on more than one occasion. He said he was dumbfounded and angry and did not know what to think. MZ told him it had happened a few times after the accused had picked her up from school. She had been sitting on his lap and he had been tickling her down her knickers. It took place in her bedroom and in the front loungeroom.[68]

    [68]   T136-137.

27. MP said he could not be sure MZ said anything about an occasion when his wife was at a concert, and thought that came afterwards. What MZ spoke about was mainly to do with that night and she did not want to talk about it anymore. She kept crying and wanted to be with her mother. He was pretty sure that information about when his wife was at a concert occurred the next day because:[69]

    We ended up asking – getting a bit more information from her after I had been at KT’s parents’ place for them to calm me down because I was about to go to his place and kick the shit out of him and they restrained me and told me not to go around there.

    [69]   T137.

28. MZ had said that the accused laid down next to her on the bed and had his hands down her pants and up her top and was fondling and tickling her when her mother was at the concert.

29. After speaking with MZ on 16 December 2018, he called the accused on his mobile, asking whether he had something to tell him. The call was made at 8.29 pm for five minutes and 16 seconds.[70] The accused said, ‘What do you mean?’ He told the accused ‘My daughter has told me what you have done to her.’[71] MP described the accused stuttering and asking what he meant, and saying he had done nothing to her. MP told the accused not to ‘bullshit’ him and for the accused to tell him what he had done to his daughter.[72] MP told the accused that MZ said he was touching her and massaging her down her pants and up her top. The accused told him he would not do that. The accused said he was very careful and made sure he did not go too far. MP said he was swearing and asked whether the accused was calling his daughter a liar. The accused said he was not calling her a liar, but that he did not do anything. After swearing some more, MP told the accused he was ‘coming around’ and then hung up the phone.[73] The accused sent a text message to MP at 8.36 pm saying ‘I’m not at home’ and a further message of ‘My relatives are at home at moment.’[74]

    [70]   Ex P10 p.91.

    [71]   T138.

    [72]   T139.

    [73]   Ibid.

    [74]   Ex P10 p.94-95; T141.

30. At 8.38 pm the accused called MP, with the call lasting two minutes and 54 seconds.[75] The accused asked him what was going to happen if he told the truth.  MP said he told the accused that if he told the truth of exactly what happened, he was not going to kick the shit out of him. He told the accused he was going to give him 24 hours to think about it and that he could get back to him the next day and let him know what he had done to his daughter. The accused asked, ‘What will happen if I tell the truth?’ and MP said he reiterated the fact that he was not going to kick the shit out of him.[76]

    [75]   Ibid p.92.

    [76]   T141.

31. At 9.13 pm the accused made a one minute phone call to MP when the accused told him he wanted to meet MP somewhere other than his parents’ house and wanted to tell his side of the story.[77]

    [77]   Ex P10 p.92; T141-142.

32. MP said his wife calmed him down and told him to go and speak to someone. He said he still had every intention when he left his house to go around to the accused’s house and ‘kick the shit out of him’, but his parents-in-law stopped him.[78]

    [78]   T142.

33. On Monday 17 December 2018, he was working. He received two missed calls from the accused.[79] There was an outgoing text message to him at 12.39 pm, just after the call. It read ‘I didn’t tell the truth yesterday and I am 100% to blame. I knew you knew that anyway cause I’m not good at lying. I will speak the truth now’.[80]

    [79]   Ex P10 p.92.

    [80]   Ex P10 p.94; T143.

34. After he finished work at about 3.00 pm he attempted to contact the accused by phone. When he did not reach him, he sent a message saying ‘I’M HOME FROM WORK NOW!!! CALL ME!!!.’[81] He had no further contact from the accused.

    [81]   Ibid.

35. When he was putting MZ to sleep in her bedroom, in around March-May the following year, MZ brought up the topic of being touched during a trip to Moonta. She was crying and told him it happened in Moonta when they were away on holidays and the accused was there. She said it was not just the fondling and the tickling, he also used his fingers in her private parts, on more than one occasion.[82]

    [82]   T144.

36. In cross-examination, MP agreed that in his telephone discussion with the accused, he was swearing. He agreed he had not told police the accused told him he had been very careful that he did not go too far.[83]

    [83]   T145-146.

37. MP agreed he asked the accused whether he was calling his daughter a liar, and had said he was going to come around and kick the shit out of him. He called the accused a paedophile and agreed he would have been going off his head.[84] He agreed that in the first conversation, the accused had denied that he had touched MZ. MP said he told the accused he was coming around and then hung up. He agreed that in the second conversation, he probably told the accused he was ‘fucking lucky because KT talked me out of coming around to his house.’[85]

    [84]   T146-147.

    [85]   T150.

38. MP said the third call at 9.13 pm was all to do with still wanting more information from the accused. The accused said he wanted to speak to him but not at his parents’ place. MP denied he told the accused to come to his house the next day because he was going to kick the shit out of him, given his daughter would have been there at the time.[86]

    [86]   T150-151.

39. MP agreed that his sons were sleeping on the sofa at Moonta. He was pretty sure the accused did not bring a mattress with him. The accused was on the couch. One time he saw the accused on one of the mattresses, sleeping on the ground. There might have been a night here or there when MZ ended up on the couch, but to the best of his knowledge, she was on a mattress on the floor.[87]

    [87]   T155-156.

1. MP denied he had ever heard MZ ask the accused to tickle her between the legs. She did not say anything like that when he spoke with her on 16 December 2018.[88]

   [88]   T160-161.

2. MP said he did not physically see him go into MZ’s room on 16 December 2018, but saw him coming out. He did not remember whether that was before or after dinner. He was watching cricket after dinner and the accused went down ‘there’ and was gone for about 10 minutes. That is when the boys started kicking up a fuss. He agreed the toilet is down that end of the house as well.[89]

   [89]   T162-163.

3. He said he could not be sure whether MZ said anything about her mother being at a concert that night or the next day. MZ did not say it was the Bon Jovi concert, but that it was when her mother was away and he was away at work. MP said that had only ever happened once or twice so ‘we put it that it was the Bon Jovi concert.’[90]

   [90]   T166.

4. MZ had told him there was a time when the accused picked them up from school during the day and he had her sitting on his lap in the front loungeroom and his hands were down her pants. There would have been about 10 times between 2017 and 2018 when the accused was asked to go and collect the children from school. He said MZ had not told him of an occasion when she came home with the accused after school, when she and the accused had laid down on the sofa and he had touched her before MP had come home.[91]

   [91]   T168.

5. When MZ told him about the incident at Moonta, she had started crying and he asked her what was the matter. She told him what had happened. She also told him about the further extent of the events regarding the night of the Bon Jovi concert when he did not just tickle her, but inserted his fingers into her body parts. She had said that at Moonta the accused had done this on the mattress with her.[92]

   [92]   T169.

6. The accused never raised any concerns he had about being grabbed in the crotch by any of his children while they were jumping on the trampoline. At no time had he had a shower with MZ in the back of the house while the accused was there. He did not tell his daughter to stand in a starfish position and wash her down while the accused was there.[93] He denied ever having threatened the accused and denied there was an argument between himself and the accused at Elliston. He denied ever threatening to push him off a cliff.[94]

   [93]   T171-172.

   [94]   T172.

7. MP denied ever having threatened his wife in front of the accused or having been kicked out of his house by his wife after 16 December 2018. When asked whether he had criminal convictions, he said when he was 18 or 19 he had convictions for possessing a controlled substance and possessing equipment to administer with a controlled drug.[95]

   [95]   T175.

8. He was asked whether more recently he had at any time shown the accused that he had drugs at the home. He said ‘We would smoke. If I needed anything, I would get off of Glen.’[96] ‘If I needed anything to smoke I would get through Glen.’[97] In response to the suggestion by counsel that was a lie, MP said:[98]

   I have got all my phones at home and I’ve got pictures of Glen drying out his dope in his parents’ caravan. I’ve got pictures of him growing marijuana at his place. I’ve got pictures of his brother and his grow room.

   [96]   T176.

   [97]   Ibid.

   [98]   Ibid.

9. MP denied that he was dealing methamphetamine out of his home. He said that he told the prosecutor on Friday that ‘We used to smoke and stuff’.[99]

   [99]   Ibid.

   KT

10. MZ’s mother, KT, said the accused would frequently be at her home to watch football or cricket, and to attend birthday parties and family events. He ate meals with the family and came on family holidays. All her children would play on the accused’s mobile phone. Her children called him ‘Uncle’. She had seen her children sitting on the accused’s lap and he would tickle them over the top of their clothes.[100]

    [100] T182-184.

11. There would have been between four and six times in the 2017/18 period when the accused babysat the children.[101] She would arrange him to babysit via text message. She had messaged the accused on 28 November 2018 asking whether he could watch the children on the night of the Bon Jovi concert.[102]

    [101] T189.

    [102] Ex P10 p.103; T192-193.

12. The family holidayed in Moonta from Sunday 14 January 2018 through to the following Sunday 21 January 2018. She described the weather then as quite hot. There were nights when MZ would sleep in the lounge area. She did not recall what she slept on. She thought the accused was with the family for at least six nights. There were nights when he slept in the lounge area.[103]

    [103] T196-199.

13. On 16 December 2018, the accused was watching cricket in the small loungeroom. A friend visited her that afternoon, leaving at around 6.00 pm. The accused was there at dinner. After dinner, she was checking her emails in her room. The accused, her children and husband were watching cricket. She could hear the boys trying to get into MZ’s room, banging on it.[104]

    [104] T202-205.

14. That night, MZ came into her room. She was quiet and sat on her bed. She could see something was bothering her. MZ told her that ‘When Uncle Glen tickles me, he’s touched my private parts.’[105] She sounded scared. MZ said he had tickled her back and her bottom and that his hands had touched her private parts. KT said she was trying to clarify with her what she meant by private parts. She touched her pubic bone and asked whether that was what MZ meant. MZ said ‘No lower, it was lower than that.’[106] KT asked if it was on the inside or the outside of her clothing and MZ said it was on the inside. MZ said ‘It has happened before dinner and after dinner.’[107] She asked her if it had happened any other time. MZ said that she could remember only one other time in the loungeroom on the pull-out sofa. KT said she did not press her daughter further as she was too upset. She thought she had asked MZ if anything had happened at the Bon Jovi concert, and she had said no. MZ said the pull-out sofa event happened at the end of last year. She offered MZ a shower in her bathroom. The accused was still in the house, leaving approximately an hour later. She thought he said goodbye, which was directed at both she and MZ. She spoke to MP and he came back into the bedroom with her and spoke to MZ. MP asked questions of MZ in her presence about what the accused had done to her. She said she did not remember what MP asked. MZ confirmed the same things that she had told her and MP became quite upset. She spoke to him about going somewhere else because he was upsetting MZ and suggested that he go to her parents’ house.[108]

    [105] T207.

    [106] Ibid.

    [107] Ibid.

    [108] T208-210.

15. In cross-examination, KT said she did not think that MP was intoxicated on 16 December 2018. He was upset. He did not get angry to her observation or swear at any time. She denied the accused had been ‘kicked out’ after 16 December 2018 for a couple of weeks.[109]

    [109] T210-211.

16. In that first conversation, MZ did not say the accused had put his finger or fingers inside her private parts and did not refer to the accused touching the top of her body.[110] She said she did not recall the conversation exactly when MP came and spoke with MZ. The questions were along the same lines that she had asked. She had not seen the accused go down the hallway towards MZ’s room before going to her room to work on her phone. She said she could not hear the accused, but could hear that the kids were referring to MZ and the accused in MZ’s room after dinner.[111]

    [110] T213.

    [111] T214-216.

17. MZ did not tell her that anything had happened after she had come home from school.

18. She never saw or heard the accused raise his voice towards MZ and agreed he was not an aggressive person.[112]

    [112] T222.

19. She denied there were occasions when the accused was at her home when MP would become quite angry and violent. She said she had possibly observed him getting angry towards the children.[113]

    [113] T223.

20. As to the holiday in Moonta, KT said she could not recall where the accused slept. She said she could not be mistaken about the accused being there for about six days. MZ slept in the loungeroom but she did not recall what she slept on.[114]

    [114] T223-224.

21. KT said no one told her about an incident involving MZ and David Van Heerde. She did not observe MZ doing anything inappropriate.[115]

    [115] T227-228.

22. She said MP was angry when he found out from MZ what had happened. He was more upset and teary than angry. She did not recall whether she had to restrain him or tell him not to go around to the accused’s house that night. There had been no time when she had any cause for concern about the accused acting in an inappropriate way with MZ.[116]

    [116] T228-229.

    DBS Gooch

23. DBS Gooch attended at MZ’s home address on 17 December 2018 and conducted the interview of MZ in her bedroom.[117]

    [117] T232.

24. At 1.38 pm the same day, she attended the accused’s home address and placed him under arrest. A search was conducted pursuant to a general search warrant.[118]

    [118] T234.

25. The accused was interviewed later that day at the Christies Beach police station, commencing at 2.25 pm.

26. At the beginning of the interview, DBS Gooch told the accused he had been arrested for an indecent assault. He was given his arrest rights and told there had been an allegation in relation to an incident assault on a 10 year old person named MZ. DBS Gooch asked the accused to tell her what he knew about that. The accused said:[119]

    Um, yeah I, I’ve known her for 10 years and um, I have to say I did something quite stupid maybe three quarters of a year ago maybe. Um, a couple of other ones (inaudible). I think there might have been three instances um, I know the last one was um, Sunday, yesterday.

    [119] MFI P16 p.2.

27. In relation to the ‘incident yesterday’ he said:[120]

    Um, I was watching cricket with a friend. Um, while I was watching cricket I suppose she wanted me to go there and play with her, and was I don’t know. Um, I’m always a bit hesitant around her. …Um, in no way shape or form is she to blame. She’s only 10.

    [120] Ibid p.3.

28. He was asked what happened after MZ wanted him to go and play with her. The accused said:[121]

    Um, ah, basically she said she wanted like a um, a massage type thing so she could go to sleep um... This started, I mean that was that incident yesterday. But um, and before that it was the first one. Actually I picked her up from school and as long, with his other two kids and um, sorry it was just a few months ago.

    [121] Ibid.

29. He told DBS Gooch that MZ was innocent, was not at fault and did not know what she was doing.

30. When asked what happened, the accused said:[122]

    Ah she just got too close to me and… I know it’s wrong and I resisted for a while. This is the same day um.

    [122] Ibid p.3-4.

31. He said that when he said ‘resisted’, he meant resisted from going too far. He said:[123]

    Cause I have a feeling that obviously when you’re a kid you sometimes will have a crush on someone and this and that. I mean I, I’m guilty when I was a kid…She always seemed happy when I was there, always wanted to be around me um, probably wanted to hug me too much…

    [123] Ibid p.4.

32. DBS Gooch asked what happened when he picked MZ up from school. The accused said they walked from MZ’s school and:[124]

    …I think maybe I liked, maybe not liked but I was um, maybe, seeking a bit of um, I was gonna say body contact but that’s not the right word it’s um, um. Unless I say something else you might not understand what I’m trying to say… Um, so I’ve sort of like never really had a girlfriend. … anyway when you get lonely and you just like a bit of um, you know, skin, skin contact I suppose.… I was never attracted to her or anything like that... I never forced anything on her... I never threatened her. I never held her against her own will.

    [124] Ibid p.3-5.

33. He was asked what happened when he got to the house. He said:[125]

    Ah, just on the couch…Um we were playing pretend hobby. I don’t know what you call it. Um, well she was trying to pretend that she had a b, I don’t know… It was games which just got out of control… It really wasn’t any game, it was just um, I, just sat down and um, basic she’s all over me and I can’t… just on, you know, sitting up here.

    [125] MFI P16 p.4-6.

34. The accused said MZ was sitting across him and her hands started going around his body. He said he did not mean ‘my area or anything like that’.[126] She laid on top of him and he touched her ‘bum’. He said he purposefully touched her in the wrong spot, in her ‘downstairs department’, her vagina. It was a touch and nothing else. It was ‘sort of just underneath’ her underwear.[127] The accused said nothing else happened for the rest of the day ‘until pretty sure it was her father MP at the time.’[128]

    [126] Ibid p.6.

    [127] Ibid p.7.

    [128] Ibid p.8.

35. When asked when it was that something next happened. The accused said:[129]

    Possibly half way through that, I should know it was not long ago, um, only 3,4 weeks ago… I was asked to babysit and I was umming and ahhing. Cause I had other things to do… And yeah, she wanted to go and see the Bon Jovi concert and her father was working.

    [129] Ibid.

36. The accused said:[130]

    ... but like once again she lay down on me. And this has happened many, many times. I’d have to say a hundred times she’s laid down on me that there’s been no sexual anything… She was laying in my arms just on the couch…and she wanted to be tickled between the legs. And I said you know, you shouldn’t really. I didn’t say, I just didn’t do it…once again she’s 10 years old, she doesn’t know what she’s doing. It’s not her fault.…Um she kept persisting. I probably should’ve just got up and left…she just kept pointing down there and go massage me or tickle me down there and I did it. …I probably touched her for 10 seconds maybe.

    [130] Ibid p.9.

37. When asked how he had touched her, the accused said:[131]

    …um yeah just up the top of it, the vagina but I’ve never ever done fingers or anything like that. I’ve never exposed myself to her or anything like that…. Just the very upper part of the vagina.

    [131] MFI P16 p.10.

38. The accused said that the next time it happened was the day before the interview, that is, yesterday. They were watching cricket. He said MZ just kept calling him into her bedroom to come and play. He went in there and gave her a bit of a back massage.

39. He said that MZ told him ‘don’t touch there, touch the other spot.’[132] He said the other spot was the ‘sexual spot.’ He was tickling her stomach and:[133]

    …I must have put my hands in her pants for five seconds maybe… I did it between maybe 10, 20 seconds just to, I don’t know. I should’ve just said no but that’s what she wanted and I did it.

    [132] MFI P16 p.11.

    [133] Ibid p.12.

40. He touched her in her pants on top of the vagina. He said that would have been about 5.00 pm and he went back to the cricket and then he went home. He had dinner there. They have dinner around six and he thought that this happened after dinner. Nothing happened before dinner. When he left, MZ was in her parents’ bedroom.[134]

    [134] Ibid p.12-13.

41. The accused denied he had a sexual interest in children then went into some detail about the reason for his behaviour. He said:[135]

    Um, I don’t know how much you sort of want to know as far as um, why I maybe did it, I don’t know…Um, once again I think it’s an intimacy thing. …Just with a human being, full stop... Not necessarily sexual but um, like a family love I suppose you’d call it…. So that’s all I was after was just a bit of intimacy and.. I didn’t think I was a bad person

    [135] Ibid p.15.

42. He said he did not think he had ever made MZ cry apart from this stupid thing that he did. He had never hurt her or said bad things about her. He said he did not tell her off.

43. He said MP phoned and said that MZ was in tears. When asked if he had asked her not to tell anyone, he said he had said to her:[136]

    ...Once I said um, you know I’m not supposed to be, you know we’re not supposed to be doing this right.

    [136] Ibid p.18.

44. He said he had no intention of anything like sex. He never took away her first kiss and she still had all that to look forward to. He knew it was wrong. He said that all up it was 30 seconds all together. He asked DBS Gooch whether she had written down that ‘everything she did is not her fault.’[137] He emphasised that he was not blaming MZ.

    [137] Ibid p.19.

45. Mr Moen objected to prosecution questions of DBS Gooch about the accused’s bail agreement based on relevance and having received no notice of the matter. Mr Dawes argued that the relevance lay in the defence case regarding the veracity of what the accused had said to police in his record of interview, that is, in direct response to cross-examination of MP, as regards MP attending at the Christies Beach Magistrates Court.[138]

    [138] T239-240.

46. I allowed questions relating to the bail agreement. Bail was granted to the accused at 19.45 hours that day. The bail agreement (Exhibit P17) stipulated that the accused had been charged with the offence of 'Indecent assault' to appear at the Christies Beach Magistrates Court on 4 February 2019.

47. The accused’s phone was seized by police and submitted to the Digital Evidence Section for an extraction of its contents. Exhibit P10, tendered by agreement, contained the downloaded calls, messages and MMS messages contained on the phone.

48. DBS Gooch said the accused had never said he felt pressured by MP or that MP would be violent toward him.[139]

    [139] T257-258.

49. In cross-examination, DBS Gooch said she had not told the accused that she had spoken with either of MZ’s parents with respect to the charges. He was informed that MZ was pressing the charges.[140]

    [140] T259.

50. No comparative analysis of DNA was undertaken given the accused and MZ had been in contact with each other quite regularly and the accused had spent a considerable time at the home.[141]

    [141] T261-262.

51. There was no physical examination of MZ given it would not prove or disprove any allegation and because of MZ’s age and vulnerability. Furthermore, MZ had showered the night before.[142]

    [142] T262-263.

    David Van Heerde

52. The accused’s brother, David Van Heerde, gave evidence on his brother’s behalf. Mr Van Heerde said he had never seen his brother grow cannabis or ingest drugs or cannabis.[143] He described a birthday party that took place for his father where Mr Van Heerde had been playing eight-ball and was leaning over the table. He was grabbed on the backside and testicle area by MZ, at least three, maybe four times. He told her that ‘this is not okay.’ He did not mention it to MZ’s father because he was heavily inebriated, but he did mention it to MZ’s mother at one stage. It would have been 2017.[144] He described his brother as a great, great guy. He had no cause to have concern about his honesty. He described his brother as fairly quiet and reserved.[145]

    [143] T269.

    [144] T270.

    [145] T271.

    The accused

53. The accused gave evidence. He said he was now aged 43 and lived with his parents. Since 2018, he has been prescribed medication for major depression and major anxiety.[146]

    [146] T301.

54. He said he had never consumed cannabis. He denied ever taking any illicit drugs. He said MP’s evidence regarding growing cannabis was a complete fabrication.[147]

    [147] T302.

55. He and MZ enjoyed watching sport on television. He was asked to babysit MP’s children around eight or 10 times. It would sometimes entail him going to collect the children after school.[148]

    [148] T305.

56. There were several occasions when MZ would be on the trampoline with him and had grabbed his crotch. He told her ‘Please don’t do that, that is not nice to do.’[149] He did not tell her parents about it.

    [149] T306.

57. In late January 2018, he took a trip to Elliston with MP. When asked whether there was anything that happened at Elliston that caused him some concern. He said:[150]

    I was threatened a bit more than normal on one occasion …it was about bringing equipment up a cliff… I carried all the heavy stuff. I have arthritis in my ankle and I sort of mentioned to MP “You can take the heavy stuff up next time.”… He did not take it at all well… I would step back as he would step forward... I would be 10 metres away from the cliff face. I would not have gotten any closer than probably eight or nine metres, so it wasn’t very close.

    [150] T307.

1. He said MP’s demeanour was quite aggressive and overpowering, to the point where he could not question him any more about the situation.

2. He was asked whether that had happened before at any time and he said ‘Yes it has, different circumstances. But very similar - similar expressions were displayed by MP.’[151]

   [151] T307.

3. The accused said that when he attended at the Christies Beach Magistrates Court, MP walked past and threatened him. MP had said that he was a piece of shit and did not deserve to live. He said that that made him feel very fearful. He said MP had an altercation and was being addressed by ‘marshalls’ in the court.[152]

   [152] T308.

4. The accused said he had never taken drugs with MP but that MP uses ‘a lot of drugs’, namely cannabis, alcohol and methamphetamine.[153]

   [153] T308-309.

5. The accused said that during 2017 and 2018 there were times when MZ said things about which he was concerned. She would ask him to touch her private areas. The specific words she used were ‘Can you please tickle me between the legs?’.[154] He said he would tell her to please not ask that again, and that was not what young girls do. He did not raise the issue with MZ’s parents because he feared her father’s retribution. The accused said:[155]

   I feared the false claims he may make, as he has made on many previous occasions, and I also feared his aggression.

   [154] T310.

   [155] T311.

6. He could not tell MZ’s mother, because she would have to tell her husband. MZ had said these things to him between 20 and 30 times minimum. Up until the last six months it was always when her parents were not there. He avoided MZ and told MP that he did not want to look after the kids as much as this was the closest he could get to making up an excuse not to look after the children.[156]

   [156] T312.

7. He denied that at any time after school he laid down on a sofa bed with MZ. He denied touching her in her private parts as she was laying down on a bed in the front loungeroom. He was always very gentle with the children and played many different games with them. There were times when MZ would come up to him and lay across his lap. They would play a game where she had to guess what he was drawing on her back.[157]

   [157] T312-313.

8. He denied ever touching MZ in an inappropriate way between her legs. He said:[158]

   She would bring up sexual conversations claiming she knew how babies were made. Saying she would hear her parents make loud weird noises in their bedroom. They would open the door ajar and have a look. She would continue to explain but I would block my ears and just say “I don’t want to know.”

   [158] T314.

9. On the evening of the Bon Jovi concert he and MZ were sitting in the small loungeroom. MZ was sitting on the chair opposite him. She put her legs over his legs, slightly apart and asked him to tickle her between the legs. He told her off and raised his voice. He said, ‘I’m not doing it, and you know don’t try again.’[159]

   [159] T316.

10. He said he tried his best to avoid MZ. He agreed he would have carried her to her room to go to bed, but during the course of picking her up he did not touch her vagina in any way.[160]

    [160] T317.

11. He thought he had spent four to five nights at Moonta and that it was very warm. There was a bedroom set aside for him but it was too hot and he slept in the loungeroom. He could only recall MZ sleeping on the sofa, but had a vague recollection of her sleeping on a mattress on the floor. He was never on a mattress with MZ and would have slept on the sofa for just two nights. He was taking sleeping tablets. He had no recollection of MZ waking him up at any stage. At no time did he sit up and touch MZ on the vagina.[161]

    [161] T317-321.

12. On 16 December 2018, he had dinner with MZ’s family. He recalled playing with the children before dinner and sitting down and watching the cricket in the smaller loungeroom near the kitchen. MZ wanted him to go into her bedroom. She was very insistent. He went into her room and she wanted him to play ‘putting her to sleep’. They only played for about five minutes and he did not touch her inappropriately. He did not recall her saying anything inappropriate before dinner. After dinner, they watched the cricket. MZ still wanted to play in her room and she was very insistent. He hesitantly went down to her room as her escalating behaviour was making him very uncomfortable when she was not in the presence of her parents. When asked what happened in her room after dinner he said:[162]

    She was lying on her back, sideways on the bed with her knees bent over the bed. She had her leggings and a T-shirt of some description. I don't believe it was her sleeping attire or arrangement. She hadn't changed into that yet. She had her shirt up and her leggings maybe down an inch. She didn't actually expose herself or anything like that.

    [162] T326.

13. They played the game of trying to make her go to sleep. Her brothers were becoming quite loud and boisterous. The bedroom door was open and he had never shut it. MZ would shut it to lock out her brothers. He said that he had picked MZ up. She was in her quilt all wrapped up and he was going to place her over his shoulder and take her out to the loungeroom when she whispered to him ‘Can you tickle me between the legs?’ She said it two or three times. He said:[163]

    It got to the stage where this has escalated to a new level of MZ's requests and that was the end of my fears. I put her back down on the bed or dropped her on the bed. I have never threatened MZ before in my life.

    [163] T327.

14. The accused told her not to ask him to touch her there. He said ‘'Have you got it?'.[164] He said that she had a scared look in her eyes. She had never seen him talk to her like that before and there was no answer. He said he knew he had scared her already and then he said, ‘Have you fucking got it?’.[165] That was the first time he had sworn at her. He said that MZ looked close to petrified. He could see her eyes beginning to tear. He went to the bathroom, splashed his face with water and stayed in there for at least five minutes. He grabbed his gear and may have hovered behind MP watching cricket for a few minutes, trying to get the courage to talk without feeling like something had happened. When asked why he did not tell MP what had happened, he said: ‘Number 1, you don't threaten his kids, first-hand I've seen what can happen.’[166]

    [164] T328.

    [165] T329.

    [166] Ibid.

15. He did not tell KT because she would have to tell MP. He was scared of MP’s aggression and threatening behaviour which had escalated ‘majorly’ over the last six months. The accused said that a lot of people had fallen out with MP. The accused said:[167]

    I’m aware of how MP treats other people and I didn’t want to become his victim so I had a general fear of MP and he does jump to his own conclusions.

    [167] Ibid.

16. The accused could not remember the exact words that MP used when he phoned him that night but it was something to the effect that they had to talk about something. He said that he had a feeling MZ could have said something about him having upset her earlier. MP told him MZ said he had touched her down the pants, which the accused said he ‘respectfully denied.’[168] MP’s tone of voice was very raised and very serious with his usual aggressive verbal stance. MP said he was going to kick the accused’s head in. MP said, ‘You’re dead, you’re dead.’[169] The accused tried to get a word in but MP just kept telling him to ‘shut the fuck up and listen.’[170] He said it was a long call and a lot of it was MP forcing him to take the blame. MP told the accused to make sure he did not leave his house and that he wanted him out the front when he got there. He kept saying he was going to kick the shit out of him and kick his head in. The accused told MP that he had a lot of relatives over at the time.

    [168] T332.

    [169] T333.

    [170] Ibid.

17. The accused telephoned MP at 8.38 pm because MP had told him to phone back. The accused said he could not get many words in. MP was doing all the talking, starting to claim that there were other times. MP arranged for them to meet the next day. He remembered MP mentioning the Bon Jovi night. He mentioned a ‘whole lot of details’.[171] The accused said he thought there might have been two other times MP had mentioned something had happened and vaguely remembered MP saying three-quarters of a year ago something happened which was not really elaborated on.[172]

    [171] T336.

    [172] T336.

18. The accused said he felt ‘vague’ about the call at 9.13 pm. He was in a state of fear. As to the text he had sent concerning not telling the truth and being 100% to blame, he said:[173]

    I did fear MP, and if I didn’t agree with his claims he was going to kick the shit out of me, but he also mentioned if I called any of them a liar, you know, he threatens me as well, so that would have made things even worse. So I was trying to minimise a physical altercation he might have with me.

    [173] T337.

19. The accused did not turn his mind to speaking to police about any of that at that stage. When he received the message on 17 December 2018 from MP that he was at home and wanted him to call, he was at the Christies Beach police station.

20. He said that prior to speaking to police, his state of mind in relation to MP was ‘very poor.’[174] He had more fear of MP built up in him than anything else and all he had in his mind when he spoke to police was the fear of MP and his wrath if he did not agree with what he had mentioned on the phone. He said ‘I couldn’t remember everything he mentioned on the phone … I actually just made all that up.’[175]

    [174] T339.

    [175] T339-340.

21. He said that he had told police that in no way shape or form was MZ to blame because ‘I would never blame MZ for anything because MP would not like that one bit. I had a fear of MP there.’[176] He knew that MP did not like his kids being told that they were liars or threatening them. He did not tell police about the fact he had raised his voice to MZ, because he did not want to blame her for anything. The accused said ‘I knew that if I had said the alternative, it would have been a lot worse for me. So, I had no - fear of him was above the police at the time.’[177]

    [176] T340.

    [177] T342.

22. When he was asked as to what he said as regards having body contact, he said ‘Obviously I was quite anxious at the time as well. I couldn't get it to come out right.’[178]

    [178] Ibid.

23. He denied ever being attracted to MZ in any way. The accused said he was trying to create a situation which would suit MP’s ears. He had described touching her vagina for fear of not matching MP’s story and made it sound like there was minimal contact. He said he tried to make it like it was just the lowest case of touching you could get and to prove to him that he had said it.[179]

    [179] T344.

24. With respect to what he said about the Bon Jovi concert where MZ asked him to tickle her down there and he did, he said that MZ had kept pointing down there to her vagina and did ask him to massage or tickle her down there.[180] The accused said he could not tell anyone that he had scared MZ, as if that got back to MP, that would not have been good.[181]

    [180] T345.

    [181] T351.

25. In cross-examination, the accused said he had lied to police. He agreed the message he sent to MP saying that he did not tell the truth, and was no good at lying, was sent just hours before he spoke to police.[182]

    [182] T355.

26. The accused was questioned regarding details of his evidence that had not been put to MP in cross-examination.[183] He agreed that because he denied ever touching MZ inappropriately, he could not know where, when, or how it was alleged he had done so unless someone had told him. He said he recalled what MZ had been wearing on the day before the interview, but would have had no idea if she was making an allegation about wearing particular clothing on other occasions.[184]

    [183] T356-357.

    [184] T358-360.

27. The accused said that in the first phone call from MP, he had only been told about the occasion that evening, that is, MZ had said the accused had touched her in her bedroom after dinner. The accused agreed he was in shock at the time of the calls with MP, but remembered the important things that were said. MP mentioned MZ had been touched ‘possibly four times’.[185]

    [185] T360-361.

28. When reminded that he had not said that in examination-in-chief, the accused said:[186]

    Well it could have been three or four times, because when I was being questioned by police I couldn't remember what MP had told me on the phone. I distinctly remember the cricket from that day - yeah, that day - I remember him saying the Bon Jovi night … And then he said something happened, like, three quarters of a year ago… And I vaguely remember that he reeled out a fourth one.

    [186] T362.

29. The accused maintained that police mentioned about something ‘sexual’ when they spoke to him. He said that he was extremely tired that day in that he had not had certain medication, and his brain did not work as well as it should have if he had taken his tablets. Ultimately, he agreed he could not be 100% sure something ‘sexual’ had been mentioned and agreed that police had not told him how many times, when or how it was alleged he had touched MZ. They did not tell him what she said she had been wearing. MP had told him that the first time he touched MZ, it happened after school. As to his statement to police that he had touched MZ’s vagina on an occasion after he walked her home from school, he said ‘I associated this event with MZ asking me on an occasion.’[187]

    [187] T367.

30. When it was suggested to the accused that he told police that the first time he touched MZ’s vagina was on the couch and that no-one had told him that the allegation had included him touching her on the couch, the accused said ‘I knew that MZ had asked me some time. I said “couch”. I would have to say that I wasn’t speaking 100% truthfully about whether it was on the couch or not.’[188]

    [188] T368.

31. He agreed that he pretty much chose randomly to say to police that it was on the couch. He had described MZ wearing a dress on the first occasion that he had touched her. When it was suggested to him in cross-examination that that was a feature of the allegation that nobody had told him previously. He said:[189]

    I don’t know what MZ said she was wearing. I remember she was wearing a dress that day because I was giving her piggybacks and she has got buttons on the front of her dress and she would often undo the bottom one so I could give her a piggyback. That is how I remember she was wearing a dress that day. That had happened numerous times.

    [189] T370.

32. When the accused’s attention was drawn to his statement to police that the incident came to an end because MP came home, the accused said ‘I’m just going to read this again. I’m pretty sure her father came home around that time. It would be pretty close.’[190]

    [190] Ibid.

33. With respect to speaking about the first occasion, the accused said he had chosen that particular occasion, because MZ had asked him to touch her. He agreed in cross-examination that MZ had asked him to touch her at least 20 times. When asked why he chose this particular time that MZ asked him to touch her in the loungeroom as the occasion he would tell police about, as opposed to any other time, he said:[191]

    This one was a stand out. I remember this one where she had escalated quite a lot and I noticed her personality had changed, her sexual body language was at an all time high at that time and I remember that day as being a very difficult day.

    [191] T372.

34. He said he picked that day to coincide because of the fear of MP. He said this occasion was the one where MZ would ask repeatedly and so he remembered it well.

35. The accused said that on the night of the Bon Jovi concert, he tried to educate MZ not to ask to be tickled between her legs. He agreed he told police that MZ said she wanted to be tickled between the legs. When asked about his evidence‑in‑chief which had been that this had never happened, he said ‘I do vaguely remember her asking but it might not have been completely verbal. It was also a body language thing and she uses her arms as well and hands to point.’[192]

    [192] T375.

36. The accused agreed he told police that he had never ‘done fingers’ or anything like that.[193] He agreed no-one had told him MZ had alleged he had put his fingers into her vagina. When asked why he added that detail when he was telling police lies about touching her for 10 seconds, he said he was trying to let police know that there was definitely nothing more serious than what they had accused him of doing, and that was ‘touching the top.’[194]

    [193] T376.

    [194] T377.

37. He agreed that MP had never used the word ‘finger’. He said that the only thing he clearly remembered was him saying ‘MZ said you put your hands down her pants.’[195] The accused said that in his interview to police he had been trying to minimise the untrue impact. He lied and told them the lowest form of touching a vagina possible.

    [195] T378.

38. The accused denied the suggestion that what he said to police at the end of the interview was him coming to terms in his own mind with what it was that led him to touch MZ on her vagina.[196]

    [196] T382.

39. The accused was asked whether he thought he would be bashed in any event because he had told police that he touched MZ’s vagina on three occasions. He said ‘No, this comes down to his “Are you calling me a liar?”.’ That’s the first threat he’ll use. After that, it will be chest-on “Do you want to go?”. So, I knew the steps that MP takes when he threatens people.’[197]

    [197] T383.

40. As to why he lied he said, ‘I was very short-term sighted at the time. All I was thinking about was how [MP] was going to kick my head in in just a few hours time.’[198]

    [198] T384.

41. The accused denied he had been sleeping close enough at Moonta for him to lay on his mattress and touch MZ on the couch with his hand. He said that he was taking a sleeping tablet and went to sleep and did not wake up.[199]

    [199] T388-389.

42. The accused agreed that by 16 December 2018 he was becoming more wary of being alone with MZ. He went into her room twice on 16 December 2018, both before and after dinner because her parents were home. The door was shut for about 10 seconds. After dinner, MZ was wearing leggings and a t-shirt and had her shirt up and her leggings down an inch. The door was open. She was already in the room and he followed her probably 30 seconds later. He said:[200]

    I walked in there and I was shocked, and so that’s when I pretty much pulled the doona out from underneath her and tried to pretend I didn’t see it. I didn’t want her to have a reaction off me, so I pretended that what she was doing there was not going to work on me.

    [200] T394.

43. He said that he could have been in the room for 10 minutes. MZ was after a reaction and he gave her none. At the time, she still had never asked him to touch her when her parents were there, so he was still under the impression that it was comfortable and okay for him to be in her room. As to whether he was worried at that point about MZ’s parents finding out she had asked to be touched, he said that in the last six months that had started to grow on him. He agreed he was worried about MZ being upset and telling her parents she had been asking him to touch her, but would not have had the guts to go back out and sit down on that couch to watch the end of the cricket.[201]

    [201] T395.

44. Over objection from defence counsel I allowed the prosecutor to ask questions in relation to the accused ever having used the drug cannabis. He maintained his denial ‘100%’.[202] The accused agreed that on 2 July 2015 he was pulled over by police and submitted to a saliva analysis. The accused said he had found a tin and a pipe under the passenger seat from the night before, which had belonged to others who had been in his vehicle. When the officer gave him the test, he touched a bit with his hand and it came up as positive. He sought legal advice but decided not to pursue it as he did not lose his licence for such a thing at that time. He said the officer didn’t scrape the inside of his mouth and that he had done it himself. Police told the accused to make sure he rolled it all around his mouth. He said there were three tests administered. The first two tests would not come up positive. The police officer kept returning to the police van and he would come out with another test and would be tested again. The last one was positive and he remembered he had touched the wick at the end. He told police that the pipe and tin were not his. He said he does not tolerate drugs and does not have drugs in his house. His parents do not tolerate drugs. He said he paid the fine and was reimbursed by the person who owned the cannabis.[203]

    [202] T409.

    [203] T410-411.

    Exhibit P8 - Prosecution case in rebuttal

1. With respect to MZ’s complaint to her mother, KT said she asked MZ if anything happened on the night she went to Bon Jovi and, MZ said 'No'. This does not mean the allegation of touching described by MZ being lifted up and taken to bed did not happen and, therefore, this is why she said no to her mother's question. MZ did not link it to the Bon Jovi occasion.[243]

   [243] T507-508.

2. With respect to the events on 16 December 2018, MP said during the evening he observed the accused open MZ's bedroom door which was closed from the inside. The accused told MZ’s older two brothers, who were playing in the nearby bedroom, to be quiet. This evidence places the accused in MZ’s bedroom at the relevant time after dinner. MP said the accused had been gone from the couch for about 10 minutes prior to seeing him in MZ's room.[244] There was a consistency between MP and MZ about a door being closed on this occasion after dinner. MP also said that during the evening the accused went down to that end of the house towards MZ's bedroom several times. There is, of course, a toilet in that vicinity as MP properly conceded. MP then observed the accused leave MZ's bedroom and walk back out with him to the little loungeroom. He denied MZ was crying.[245] KT’s evidence was that when MZ came into her room very shortly after this, she was not crying. Both MP and KT said the accused remained at the house after the time that MZ made the complaint to her mother. The description KT gave of her daughter’s complaint was entirely consistent with the description of this conversation given by MZ and, of her saying she had shown her mother which part of her body the accused had touched when she spoke to DBS Gooch in the first interview.[246]

   [244] T509.

   [245] T510.

   [246] T510-511.

3. On the prosecution case, MZ made an almost immediate complaint referable to the incident where the accused touched her in her room after dinner that evening. Importantly, MP's evidence was that MZ also complained that it had happened on more than one occasion. MZ said it happened a few times after the accused picked her up from school referable, Mr Dawes suggested, to the first occasion that MZ described, and also the occasion where MZ referred to being lifted up and her vagina touched. On both of these occasions, MZ's evidence was that the accused collected her from school.[247]

   [247] T512.

4. MP also said that MZ told him MZ was sitting on the accused’s lap and he had been tickling down her knickers, a complaint referrable to the occasion where MZ was looking at arts and crafts on the accused’s phone. This is the only occasion when MZ described sitting on the accused's lap as opposed to laying or otherwise being across it. MP said there was a further conversation, possibly the next day, regarding when KT was at the concert when MZ told him the accused had laid down next to her on the bed that was laid out in the front loungeroom and had his hands down her pants and up her top and was fondling and tickling her. Mr Dawes submitted that while MP remembered this complaint being referable to the Bon Jovi concert, it is more likely to be referable in MZ's mind to the very first occasion she had described, that is, the occasion on the fold out bed in the large front loungeroom.[248]

   [248] T512-513.

5. In MZ’s conversation with MP, she described what had happened at Moonta. MZ elaborated by saying it was not just fondling and tickling on other occasions, it had been insertion into her private parts with the accused's fingers. This complaint, in Mr Dawes’ submission, is referrable to the first occasion MZ said she was touched; at Moonta before the toilet; at Moonta after the toilet; at the Big Bash occasion; the arts and crafts occasion, and both occasions on 16 December 2018. The only occasion where MZ’s evidence does not include touching inside the vagina is the occasion MZ described as the accused picking her up when she was unsure as to what had occurred.[249]

   [249] T514.

6. In Mr Dawes’ submission, the accused unwittingly, during the record of interview, showed that he had esoteric knowledge of the allegations made by MZ. The accused nominated three separate occasions where he touched MZ's vagina, two of which have striking similarity to detailed occasions about which the complainant had told police in her first interview. Mr Dawes submitted that the only way the accused could know the detail of these incidents, absent any information from the police or from MP, is because he had indeed touched MZ on these occasions as she and as he described.[250]

   [250] T515.

7. Mr Dawes asked me to accept that the text message sent by the accused to MP that he had not told the truth, when he denied what was alleged, was the truth.[251]

   [251] T517.

8. Police did not tell the accused any detail apart from mentioning the words 'indecent assault'. If satisfied that the accused did not know the details when he spoke to the police, pressure from MP, Mr Dawes suggested, is irrelevant because it is simply not a reasonable possibility that the accused was lying to the police and that MZ was lying to the police about those same incidents.[252]

   [252] T517-518.

9. With respect to the first occasion the accused described, he picked not only the same occasion that MZ described as being the first occasion, they both said it occurred on the couch, that she was wearing a dress and knickers, and it ended when MP got home.[253]

   [253] T518.

10. If this argument were accepted, then it is not only relevant to show the admissions to police were true, but also that the accused's sworn evidence denying the admissions are true, is a falsity.[254]

    [254] Ibid.

11. Mr Dawes asked me to accept that MP was a witness of truth who was prepared to make concessions where appropriate and prepared to admit where he was of a mistaken belief. He was not argumentative when cross-examined and there was no reason not to accept his evidence.[255]

    [255] T519.

12. As to the roadside drug test on 2 July 2015, Mr Dawes asked me to accept SC Turner as a witness of truth and the accused submitted to the tests and the swabs did not touch his hands, otherwise, a note to that effect would have been made. Furthermore, that the accused did not say the drugs and the pipe were not his. He was not subjected to three different oral fluid tests as was claimed and it can be accepted that he was subjected to one test which was found to contain THC.[256]

    [256] T519-520.

13. Regarding the messages on the accused's phone, Mr Dawes submitted I should accept the evidence from DBS Watt about the pricing of dried cannabis in late 2018 and the pricing of clones in 2015; that Samango Fem is a hybrid strain of cannabis; that the user of the phone who had received a request regarding Samango Fem and responded 'Okay' to that request had a knowledge of cannabis and cannabis strains greater than the average user on the street, and that this evidence in conjunction with the messages using the terms '50', '55 dry', 'quarter' and 'half', is suggestive that the user of the phone is involved in the buying and selling of cannabis.[257]

    [257] T520-521.

    Defence submissions

14. Mr Moen submitted that there was no independent evidence available as to the accuracy or credibility of MZ's account. The passage of time, albeit not considerable, led MZ being unable to remember a number of matters of specific detail which defence say is important in assessing her evidence. There was no forensic evidence to assist.[258]

    [258] T523-524.

15. The accused was clear that he was requested to tickle MZ between the legs and touch her between the legs on a number of occasions.[259]

    [259] T525.

16. The accused knew the type of person that MP was, and the violent, at least aggressive tone that MP had exhibited towards him previously, consistent Mr Moen said, with the telephone call that took place the night before, and indeed consistent with MP’s acknowledgement that he made threats to the accused over the phone.[260]

    [260] Ibid.

17. Mr Moen said as to MZ’s motive on 16 December 2018, there was an incident that occurred in MZ’s bedroom. As a result of that, the accused raised his voice for the first time and in effect reprimanded MZ for her request and then went to her parents. She did not tell her parents that she had asked the accused to touch her or tickle her.[261]

    [261] T526.

18. Mr Moen said that defence were not suggesting that the interview itself was inadmissible or that police did anything inappropriate or improper for the purpose of asking questions of the accused. Operating on the accused’s mind was the fear that he had of MP and the lies that he had to tell.[262]

    [262] Ibid.

19. The accused made very plain in the interview that he was not blaming MZ in any way and that he was to blame because he probably should have told MP about what MZ was asking. He had not done that and his thinking at the time was that he was fearful of MP and instead, embarked on telling the police a number of lies during the course of the interview.[263]

    [263] T527.

20. Mr Moen accepted the accused said a number of things which were new and things said were not put to MP, but the accused had given evidence of what he was told. What the accused said to police occurred on the Bon Jovi night was a lie, as nothing occurred at all on the Bon Jovi night.[264]

    [264] Ibid.

21. Mr Moen urged me to accept the accused’s explanation for what he had said in the record of interview.

22. With respect to Moonta, Mr Moen directed my attention to what he said were clear inconsistencies in relation to the locations of particular people. MZ said the accused was on a mattress close to the sofa. That was not consistent with MP’s evidence that the accused was on his mattress but not close to where MZ said the accused was sleeping on that occasion. While MZ said he did not take particular notice of where people were sleeping, in cross-examination it was clear he did have some idea as to the location of persons on or near the sofa. He did not see the accused on the sofa at any time but the accused said that was where he slept on occasion to keep cool.[265]

    [265] T529.

23. Mr Moen suggested the evidence MZ gave ‘out of the blue’, asking for the accused to touch and tickle her after he was woken up by her, did not have a ring of truth about it. Would she do that when her parents were in the next bedroom and other brothers are located close by. The description given as to how the accused was positioned and how he was said to have leant up or what hand he used was unclear. It was not clear as to what was meant by MZ’s description of pushing the accused away.[266]

    [266] T530.

24. Mr Moen asked me to have close regard to the evidence of MP, the accused, and MZ with respect to the location of people, given the prosecution must prove beyond reasonable doubt that the alleged offending did take place at Moonta.[267]

    [267] T530.

25. The fold-out bed incident after school, Mr Moen submitted, did not have the ring of truth. It was a busy, noisy household and the chance or opportunity for something like that to occur after school was very limited in a context where the accused is said to be lying down next to MZ on a bed, reaching over and touching her on the vagina with children running around and coming in and out.[268]

    [268] T530-531.

26. There was no complaint to KT in respect of that incident occurring in the front loungeroom and similarly with MP, in cross-examination, there was no incident like that described to him. Mr Moen submitted that I should make a positive finding that nothing occurred on the Bon Jovi night at all.[269]

    [269] T531.

27. What happened on 16 December 2018 was the catalyst for what occurred in the interview. The defence case was that on the 16 December 2018, the accused got angry with MZ and that was when she decided she had to get in first to tell her parents that the accused was doing ‘stuff’ for fear of reprisals.[270]

    [270] Ibid.

28. It was not disputed that MP was violent in his tone towards the accused. There was, in Mr Moen’s submission, evidence of a build-up of continual threats of a violent nature towards the accused.[271]

    [271] T532.

29. Even though the threats initially on 16 and 17 December 2018 were important in setting in context why the accused said what he did to police in the interview, that was still operating on his mind up to and including the time that he appeared at the Christies Beach Magistrates Court and was threatened.[272]

    [272] Ibid.

30. Mr Moen said it must be accepted that as a father you could react in some way. The accused had known MP for a relatively long period of time. The accused is a quiet, unassuming individual and is compliant at best with things that are going on around him with MP, KT and their children.[273]

    [273] Ibid.

31. Mr Moen accepted that some criticism might be made of the way the defence case was run, for example, as to what was alleged to have occurred with MP washing MZ in the shower outside. He said the questions were put because, on instructions, these things had been observed on occasion. That matter and what occurred on the trampoline were to show that this young girl had been sexualised in some way. How else would she have begun to ask for these things to be done to her by the accused – to be touched and tickled in that area?[274]

    [274] T532.

32. With respect to the good character evidence from the accused’s brother, Mr Moen said that it is not to the point that members of the general public need to give an ongoing reference in respect of the accused as to his good character.[275]

    [275] T533.

33. Mr Moen reminded me that I cannot use the evidence in relation to P10 and the evidence given by the expert DBS Watt to reason, that if I were to find there is some evidence in relation to knowledge of drugs, that the accused is more likely to have been a person who committed this offence. It goes solely to the assessment of the accused’s character and reliability. Whether it was the accused using the phone or not at that time is unknown, and no explanation has been provided by the accused in respect of that.[276]

    [276] T534.

34. I am being asked to draw an inference that it is the accused texting at that time and that there is no innocent explanation before me in relation to the conversation that took place. Mr Moen suggested that the content of the text messages cannot be used to show any knowledge or interest in drugs.[277]

    [277] T534-535.

35. With respect to the text message sent by the accused to MP on 17 December 2018, this, Mr Moen submitted, is in the same category as what was going through the accused’s head at the interview with police. The accused did not tell the truth and was placating MP to ensure he did not do anything of a violent nature because he was concerned for his safety and his security.[278]

    [278] T535.

36. Mr Moen submitted that the lie does not show that he is now being honest in telling the authorities. It is still an ongoing threat in his mind and that is why he has told the police what he has told them.

37. Finally, Mr Moen submitted that the accused’s evidence had the ring of truth in relation to the concerns that he had at the time, and that the accused has given an explanation as to why he said what he did on 16 December 2018 when he spoke to MZ in her bedroom, which he said, was the ‘catapult’ for what came thereafter.[279]

    [279] T536.

    Discussion

38. MZ was an impressive witness. She gave a detailed and consistent account to DBS Gooch in a way that plainly demonstrated she was speaking from having experienced the events she described. Her descriptions about how the accused’s behaviour had made her feel, were totally guileless and compelling. In her recorded interviews, she spoke in a composed and spontaneous manner about matters and topics that might be thought to be embarrassing or difficult to express. Her description of having asked the accused to tickle her and directing him to continue, were said without hesitation, inconsistent with any anxiety that her parents would find out she had behaved in such a way.

39. While the evidence she gave in court was largely consistent with what she had said in her interviews, she did appear to be more self-conscious and less spontaneous. There may be many reasons which accounted for that. She was now older, more mature and had, in all likelihood, a better understanding of all the circumstances of her own and the accused’s behaviour. Her insight would no doubt had led to feelings of embarrassment. It was clear however, that MZ was not prepared to ‘fill in’ details. In my view, she would be more likely to have professed a better recollection and provided more detail in answer to questions in cross‑examination, had she fabricated her earlier accounts to DBS Gooch, or had events on 16 December 2018 occurred in the way described by the accused with him having become angry with her, raised his voice and sworn. Furthermore, MZ’s manner in responding to questions in cross-examination that were directed towards demonstrating some sort of sexualisation by her father, or the accused having admonished her for her behaviour, left me with no doubt that the events described to her did not occur. I reject the defence attribution of MZ’s complaint to her mother as an attempt by her ‘to get in first’[280] and counter any report of her behaviour to her parents by the accused.

    [280] T531.

40. While in-court demeanour is not always a good indicator, there was nothing in MP’s presentation while giving evidence or in cross-examination, that gave any hint he was a man prone to aggression or violence. Certainly MP made no effort to present a complimentary picture of the accused, but in the circumstances here, that would not be expected. His responses to questions in cross-examination that at least on their face, were either designed for him to exhibit behaviour or responses consistent with the picture the accused wished to paint of him, or to attribute some sort of blame for MZ’s sexualised behaviour, were not unreasonable. I found the evidence of MP credible and reliable overall. He would appear to be mistaken about any complaint of touching to MZ’s upper body, but in my view, nothing turns on that mistake. Understandably, from 16 and 17 December 2018, he would have been devastated by what he understood was a betrayal by his longest and closest friend. By his own admission, MP accepted that when speaking to the accused thereafter, he was angry and made threats of violence. Given the accused’s description of MP as a man whose aggression and threatening behaviour had escalated over the previous six months, it is noteworthy that MP did not go straight over to confront the accused as he had threatened, albeit having been counselled not to do so, and later told him that he was ‘giving him’[281] 24 hours.

    [281] T141.

41. KT impressed me as a balanced and thoughtful witness whose evidence could be relied on. She rejected the suggestion that MP was a violent or angry person, other than to agree she had possibly seen him become angry with his children. She denied MP had been ‘kicked out’ of the house after 16 December 2018.[282] KT accepted the accused could be described as a compliant person and had never seen anything inappropriate between him and any of her children.[283]

    [282] T211.

    [283] T222.

42. Her recollection of the complaint MZ made to her was that MZ had not been crying, rather she was quiet and subdued.[284] In a scared voice, MZ said when the accused tickled her, he touched her private parts. It had been inside MZ’s clothing and had happened before, both before and after dinner. KT said she asked whether anything had happened on the night of the Bon Jovi concert and MZ said ‘no’.[285] MZ described another occasion when it was in the loungeroom on the pull-out sofa at the end of last year, meaning 2017.[286]

    [284] T206.

    [285] T208.

    [286] T208.

43. KT said the accused was still in the house when this discussion with MZ was occurring. After he left the house she spoke with MP, who then also spoke to MZ in KT’s presence. KT said she could not remember what MP had asked, just that MZ confirmed what she had said to KT. MP became upset and she suggested that he go to her parent’s house because he was upsetting MZ.[287] MZ’s account to KT was consistent with the evidence MZ gave to DBS Gooch. MZ said that on 16 December 2018 she did not like it the second time and described it hurting when she sat at dinner.[288] I remind myself that the evidence of MZ’s complaint must not be used for the truth of the allegations she made. The evidence shows MZ has acted consistently in that she complained about the offending at a time, and to the person I would expect. There were differences between what MZ said about the events in Moonta and MP’s account of the conversation he had with her. Despite those differences, this elaboration of her complaint was consistent with the evidence MP gave in that he said she told him it happened on more than one occasion there. The differences do not adversely affect MZ’s credibility.

    [287] T209-210.

    [288] T81.

1. It is not surprising there were differences in recollection of where people slept at Moonta.

2. It was no doubt a busy, relaxed family holiday. The accused said he was sleeping in the general vicinity of the couch.[289]

   [289] T388.

3. Given MP was angry when he spoke to the accused on the phone on 16 December 2018, and had, according to KT, been drinking, although not intoxicated, I have carefully considered whether he was able to recall with precision what it was he said to the accused on the phone. KT described MZ becoming upset when she was speaking with her, such that KT decided not to press MZ further. KT also described wanting MP to leave because he was upsetting MZ. In such circumstances, I have found that there would have been relatively little precision in the detail that MZ gave to either of her parents at that time. Finer detail of the offending is only likely to have been disclosed by MZ to her parents over the course of time, and it may even be that some of that later detail has found its way into their respective recollections of what she said on 16 December 2018. While it is most likely that MP and KT concluded that something had happened on the night of the Bon Jovi concert, that connection was not made by MZ. MP said that MZ had said it was on a night when her mother was away and he was at work.[290]

   [290] T166.

4. Mr Dawes made much about the lack of detail put to MP in his cross‑examination about what he had told the accused on the phone. In R v Manunta,[291] King CJ discussed the appropriate conclusions to be drawn from counsel’s failure to put in cross-examination a matter to which their client subsequently deposes as follows:

   It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds.

   [291] (1989) 54 SASR 17 at 23.

5. Mr Dawes had quite properly cross-examined the accused about his failure to put matters to MP and gave him the chance to respond to the allegation of recent invention.[292]

   [292] R v Thompson (2008) 21 VR 135.

6. In his evidence, the accused’s recollection of his conversation with MP was that there was a lot of MP forcing him to take the blame. He said in the first conversation the only detail MP gave was that MZ said she had been touched down her pants. During the call he had made to MP, MP started to claim that there were other times. The accused said he remembered something about three-quarters of a year ago which was not elaborated on. MP mentioned the Bon Jovi night and a lot of details which he said were in one ear and out the other. MP was speaking so fast, he could not really remember the details.[293]

   [293] T358; 335-336.

7. In cross-examination, the accused said he remembered the important things.[294] Telling the police that the first occasion was on the couch was ‘random’.[295] He had used details from the occasion, when there was the ‘biggest’ escalation in MZ’s sexualised behaviour.[296]

   [294] T361.

   [295] T369.

   [296] T369-372.

8. Having carefully assessed the accused’s evidence of what he said MP told him, the details he gave to police in his interview on 17 December 2018 do not sit easily with what I have found was the extent of the information he could have received from MP the night before. That there was no cross-examination of MP as to the details the accused said he was told add to my unease.

9. The accused’s evidence in cross-examination with respect to whether MZ had said she wanted to be tickled on the night of the Bon Jovi concert was plainly fabrication.[297]

   [297] MFI P16 p.9.

10. In evidence, the accused presented as a relatively unsophisticated witness. In cross-examination, even allowing for what Mr Moen submitted were the obvious stresses associated with giving evidence, it appeared difficult for him to maintain consistency in his version of what he had been told by MP and why he had said certain things in his police interview.[298]

    [298] T523.

11. He would no doubt have been in at least an unsettled state when he spoke with MP on 16 December 2018. In my view, the accused would have been able to recall only the most basic details of what it was MP told him that night, and for what he said to police to fit so well with what MZ told police, leads to the irresistible conclusion there were truthful aspects to what the accused had said. I am satisfied that his admissions to police show some knowledge of what MZ has alleged, which he could only know through his own involvement in the offending. I am satisfied that when he spoke to police on 17 December 2018, he spoke the truth insofar as the first time he touched MZ on the vagina was when he had taken MZ’s youngest brother to collect MZ from school and touched her vagina on the couch, and that the final time had been the day before in MZ’s bedroom, after having dinner with the family, when he touched MZ’s vagina for 10 to 20 seconds.

12. As discussed earlier, considerable time was spent in this trial addressing the issue of drugs. The topic was introduced by Mr Moen in cross-examination of MP, when Mr Moen asked about MP’s convictions for drug offences. MP agreed he had been convicted for such offending. He was asked if he had shown drugs to the accused at MP’s home. MP’s evidence was that he and the accused would smoke dope together, and that it was the accused who had supplied the drug. It was put to MP that he was ‘peddling’ cannabis and methamphetamine from his house.[299]

    [299] T176.

13. The accused’s very confusing account of what had occurred when he was subjected to roadside drug testing was difficult to follow, however, the evidence of SC Turner must, to a large extent, have been given based on his and other officers’ usual practice in performing such tests. Any specific or detailed recollection of the tests six years after the event, when he has over the years performed thousands of tests, albeit made with the assistance of some notes, on his father’s birthday and next to a friend’s house, must be treated with caution. In the end, I have not found the evidence regarding his drug test and subsequent expiation helpful and have ignored the evidence in assessing the accused’s credibility.

14. With respect to the messages on the accused’s phone and the evidence of DBS Watt, the accused made plain in his evidence that he was not someone who used drugs. He denied growing cannabis in his parents’ caravan as had been suggested by MP. In cross-examination, he maintained he had never used cannabis.[300] No questions were asked of the accused in relation to whether he had sold or supplied cannabis at any time and of course, that is not surprising given the way this issue arose. None of the questions asked, or answers given, are specifically on this point. In the arrest video at the accused’s home, the accused directed police to his mobile phone and provided the passcode.[301] I accept that the messages are indicative of a knowledge of cannabis and cannabis strains greater than the average user on the street and that the terminology used suggest the user of the phone is involved in the buying and selling of cannabis. While I accept that it is open on the evidence to conclude that the messages were sent and received by the accused, without the accused’s specific evidence on the topic, I have found that they are of no use to me in assessing the veracity of his very specific answers regarding drug use, or where it was grown. I have disregarded the evidence.

    [300] T308; 411.

    [301] P12.

15. I add that such evidence was of course in any event irrelevant to the question of whether the accused had offended as alleged and could not be used to reason simplistically that because the accused had some sort of involvement with drugs, that he is a bad person and therefore, the sort of person who is more likely to have committed the offence with which he is charged.

16. I have not found the evidence of Mr David Van Heerde helpful in assessing whether the accused is generally of good character. Furthermore, I reject his evidence that he had been grabbed by MZ in a manner that mirrored what the accused had described. I find it totally implausible that some report of MZ’s behaviour to her parents, especially her mother, would not have been made had it occurred. Mr Van Heerde said he reported the matter to KT, which she denied. 

17. It was clear to me that KT was a sensible and attentive mother. Had Mr Van Heerde made any comment along those lines, I have no doubt that KT would have counselled her daughter appropriately. Accepting as I have, that KT was both an honest and reliable witness, had there been any report of any such detail to her, KT would have remembered it. I reject the report was made.

18. Mr Van Heerde’s apparent eagerness to portray both MP and MZ in a poor light was not to his credit.

19. The accused was not an impressive witness. His account with respect to the times in which he alleged MP had previously threatened him lacked detail, appeared superficial, and did not in my view sit comfortably with having left the accused in such a state of fear that he would lie to police about such serious matters as he says he did.

20. My overall impression was that he had tailored his evidence to put MP in a bad light. His answer to why he preferred for MP to hear that he was not calling MP’s daughter a liar, as opposed to MP knowing he was guilty of what MZ alleged, was entirely unconvincing and made little sense.[302] It would have been clear from his arrest and the search conducted by police before the interview that the allegations against him were very serious. I accept MP’s evidence that he asked the accused whether he was calling his daughter a liar, but reject that it was that question, MP’s threats on 16 December 2018, or his previous interaction with the accused, which placed him in such fear he had completely lied to police as he asserts. Clearly, he had at the time, deep affection for MP’s family and had been treated as part of the family. His insistence that it be noted that he was saying none of it had been MZ’s fault, was in my view, either an attempt to shield MZ from any criticism given her requests to be touched, or perhaps to ensure it not be thought he was ‘victim blaming’ a young child, which would of course, ultimately reflect poorly upon him and the regard in which he was held by MZ’s family.

    [302] T333.

21. The accused said MZ had demonstrated increased sexualised behaviour in that she had grabbed hold of his crotch on several occasions.[303] Her apparent demands to be touched had escalated, and he was becoming increasingly uncomfortable about being alone with her.[304] Despite these concerns he made no comment to MP or KT. He said he was fearful of MP’s reaction and KT would just have to tell MP in any event. I have not accepted the accused’s evidence on this issue for a number of reasons. His behaviour towards MZ was not observed to have been modified to reflect his concerns. He did not appear to have had regard for his concerns, given he was in MZ’s room on 16 December 2018, albeit while MZ’s parents were in the home. One would expect that with such heightened concerns as the accused described, at the very first suggestion by MZ of anything untoward, he would have made his excuses and left the room, diverted her attention in some way, or if it was all to no avail, left the house for the evening. The accused, on everyone’s account, appears to have been a highly valued member of MP’s extended family. He was included in family celebrations and holidays. On occasion, he was entrusted with the care of MZ and her younger siblings. As I have said, I reject the accused was in such fear of MP that he lied to police. I do not accept that the accused was ever in such fear of MP at an earlier time, that he was unable to speak to MZ’s parents of matters of such concern to him, and which he no doubt would have appreciated would also have been of much concern to them.

    [303] T306.

    [304] T326.

22. The accused’s evidence as to why he had lied to police was implausible and disingenuous. To the contrary, his record of interview with police impressed me as a deeply personal account, where although trying to minimise the seriousness of his offending and present himself in somewhat of a good light, he was slowly trying to rationalise his behaviour in his own mind. His emphasis to police that his behaviour had not caused MZ to be denied her first kiss and that she still had ‘all that to look forward to’ was very telling.[305] The accused’s account to police was entirely consistent with MP’s evidence that the accused had told him he had made sure he did not go too far.   

    [305] MFI P16 p.9.

23. I do not accept, even as a reasonable possibility, the accused’s evidence that he was frightened of the consequences of denying touching MZ and had lied to police. The accused’s evidence does not cause me to have a reasonable doubt as to the proof of MZ’s account. I reject beyond reasonable doubt, the accused’s evidence that he had made up lies to satisfy MP. Similarly, I reject his exculpatory statements in his evidence.

24. I remind myself that even in rejecting the accused’s denials, that does not mean I am able to find him guilty. As the High Court said in Douglass v The Queen:[306]

    [306] [2012] HCA 34.

    The resolution of a criminal trial depends upon whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant. It is not enough that the accused’s evidence was rejected. Even if the judge was not persuaded by the appellant’s evidence, he could not convict the accused unless satisfied that it was not reasonably true.

288            I have found that MZ was a compelling witness. While I have rejected that her motive for complaining to her parents about the accused’s behaviour and detailing the events to police was an attempt to ‘get in first’ as the defence have submitted, I remind myself that it is not for the defence to show that MZ is wrong or is lying, and my finding does not strengthen the prosecution case. 

289            The description given by MZ as to what she felt when the accused was touching her, has left me in no doubt that the accused touched her vagina on the outside and on the inside, when he penetrated her labia majora, on the occasions she described, other than with respect to the occasion when she was lifted and taken to bed by the accused, where MZ said she was unsure if the accused had put his hands down her pants or not.

290            In particular, I am satisfied beyond reasonable doubt that:

·       The accused touched MZ’s vagina and penetrated her labia majora on an occasion when the accused was babysitting MZ and her brothers after collecting them from school. The offending occurred on the fold out couch in the front loungeroom and came to an end when MP came home from work.

·       The accused touched MZ’s vagina and penetrated her labia majora on the evening the accused was at the house watching the Big Bash, when her mother was not home and her father was putting her youngest brother to sleep. MZ was wearing her cat pyjamas and touched inside her vagina. She was pinching the accused to make him keep doing it.

·       The accused touched MZ’s vagina and penetrated her labia majora on the occasion described by MZ when she was looking at arts and crafts on the accused’s phone and she would not show him what she was looking at. The accused rubbed his finger around her vagina and did the same inside her vagina.

·       The accused touched MZ’s vagina and penetrated her labia majora at Moonta, both before and after MZ went to the toilet. He touched the outside and the inside of her vagina.

·       The accused touched MZ’s vagina and penetrated her labia majora before dinner on 16 December 2018, when the accused had come over to watch cricket with her father. She and the accused were playing a game where the accused would pretend to put her to sleep. He tickled her down her pants and it hurt for a bit because he put his finger on her privates on the inside. She could feel it on the inside because it got warmer.

·       The accused touched MZ’s vagina and penetrated her labia majora on 16 December 2018, after dinner, in her bedroom while the accused was at the house watching cricket. He tickled her own her pants on the inside and outside of her vagina. This time she did not like it and did not really feel comfortable and told her mother.

1. I am satisfied beyond reasonable doubt, that the accused committed two or more unlawful sexual offences during the course of the relationship with MZ, which I find amounts to the offence of maintaining an unlawful sexual relationship.

2. I find the accused guilty.