R v W, R G - [2019] SADC 180

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v W, R G
Criminal Trial by Judge Alone
[2019] SADC 180
Reasons for the Verdicts of His Honour Judge Barrett
29 November 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY
The accused is charged with fourteen sexual offences against both his daughters, four of their female friends and five of his granddaughters over a period of about 50 years. The charges are maintaining an unlawful sexual relationship with a child (3 counts) Indecent Assault (4 counts) Aggravated Indecent Assault (4 counts) Gross Indecency (2 counts) and Unlawful Sexual Intercourse with a person under 14 (1 count).
There arose during the trial questions of cross-admissibility of charged and uncharged acts, collusion, complaint, motive to lie, prior inconsistent statements, forensic disadvantage, the giving of unsworn evidence of a child and the provision of a witness companion. The accused did not give evidence.
Held:
The accused is guilty of all but one of the fourteen counts. There was no case to answer in respect of count 12, a count of aggravated indecent assault.
Evidence Act 1929 34P, 34R, 34M ss(6), ss(4)(a)(i)(ii), referred to.
R v W, R [2018] SADC 55; R v C, CA [2013] SAFCSC 137; R v M, B J (2011) 110 SASR 1 [62]; R v Place (2015) 124 SASR 467 [10]-[13]; R v Maiolo (No 3) [2014] SASCFC 80 at [82]; R v Jones [2018] SASCFC 80 [117] - [129]; MSP V R [2019] SASCFC 120 [29]-[30]; R v Finn (2014) 119 SASR 207 [16]-[35], considered.

R v W, R G
[2019] SADC 180

The accused is charged with sexual offending against eleven complainants during three separate periods.
In the first period he is alleged to have offended against his elder daughter DS. The accused has four children. His daughters are the first and fourth children, with two sons in the middle. In this first period the accused is further alleged to have sexually offended against two female friends of the elder daughter. They are RR and WW. The accused is now 82 years old. The sexual offending in this first period is alleged from about 1962-1973. At the time the accused would have been aged between 25 and 36. The elder daughter DS and her two friends are now aged approximately 60. They would have been aged between 3 and 14 years during this first period. The offending against the two friends is alleged to have occurred towards the end of that period and constituted of brief discrete acts. The offending against DS is alleged to have extended over most of this first period.
In the second period the accused is alleged to have sexually offended against his younger daughter CM and two of her female friends, MR and TM. This offending is alleged to have taken place between 1979 and 1986. All three women are now aged 47. They would have been aged between 7 and 14 during that period. The offending against MR is alleged to have occurred in the middle of this period and against TM towards the end. The accused would have been aged between 42 and 49 during this time. The offending against CM is alleged to have extended over most of this second period. The offending against the friends is alleged to be brief discrete acts.
In the third period the accused is alleged to have sexually offended against all 5 daughters of his younger son AW. AW has 6 children, the second of whom is a son. There is no alleged offending against the son. The third period is between 1997 to 2013. The offending against the eldest granddaughter EW is alleged to have occurred between 1997 and 2010 when she was aged between 3 and 16. The offending against the younger granddaughters is alleged to consist of discrete incidents spread over the period between 2008 to 2013. The second granddaughter REW is the subject of an offence allegedly occurring when she was 13. The third granddaughter DW is the subject of two charges alleged to have occurred when she was aged between 10 and 12. The fourth granddaughter NW is the subject of a charge allegedly occurring when she was nine. The fifth granddaughter TW is the subject of a charge alleged to have taken place when she was aged between 7 and 9. In this third period the accused would have been aged between 60 and 76.
Identities Anonymised
In the hope of slightly easing the difficulty in reading this judgment which has so many anonymised characters I provide the follow schedule:
RW   the accused
         LW   his late wife
         DS his elder daughter
         KS his elder daughter’s husband
         RR DS’s friend
WW DS’s friend and RR’s sister
HV RR and WW’s sister (also referred to as the V sisters)
BV the mother of RR, WW and HV
BW the accused’s elder son
AW the accused’s younger son
SW AW’s wife
CM the accused’s younger daughter (youngest child)
MR CM’s friend
TM CM’s friend
EW the eldest daughter of AW and SW (the accused’s granddaughter)
REW the second daughter of AW and SW
DW the third daughter of AW and SW
NW the fourth daughter of AW and SW
TW the fifth daughter of AW and SW
Locations Anonymised
It is necessary to anonymise some of the locations at which it is alleged the offending took place.
From about 1959 to 1974, the accused and his family lived in one of two workers cottages on a farming property (the farm) near a country town (country town 1). The farm was just a few kilometres from country town 1. It was situated about midway between country town 1 and another, smaller, country town (country town 2) where the elder daughter began school.
In about 1974 the accused and his family moved to a house in country town 1 (town house 1).
In the early 1990’s the accused and his wife separated. After some short term locations the accused took up residence in another house in country town 1 (town house 2). He remained there until his first arrest in July 2015.
The accused’s younger son AW and his wife SW began living together in a house at Paralowie in 1991. Four of their six children were born whilst they lived there. In 1999 they moved to Elizabeth. Their fifth and sixth children were born while they lived there.
In 2008 AW and SW and their children moved to a country town (country town 3) which was about a 30 minute drive from country town 1 where the accused lived.
The Charges
I now set out the charges. During her address, Ms Litster for the prosecution said she did not press certain particulars set out in the 3 charges of Maintaining an Unlawful Sexual Relationship with a Child (Count 1, DS; Count 6 CM and Count 9 EW). I have indicated that fact. I have also noted amendments made to Count 5.
RW is charged with the following offences:
First Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RW at country town 1 and other places, between the 8^th day of February 1962 and the 10^th day of February 1973, maintained an unlawful sexual relationship with DS, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with her, or towards her, namely:
a)Touching DS on the vagina;
b)Inserting his finger into DS’s vagina;
c)Inserting his penis into DS’s vagina;
d)Not pressed.
e)Masturbating in front of DS.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Second Count
Statement of Offence
Gross Indecency. (Section 58 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RW at country town 1 between the 1st day of January 1967 and the 31st day of December 1970, committed an act of gross indecency with or in the presence of RR.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Third Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RW at country town 1, between the 1st day of January 1967 and the 31st day of December 1970, indecently assaulted RR by causing RR to touch RW’s penis.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Fourth Count
Statement of Offence
Gross Indecency. (Section 58 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RW at country town 1, between the 1st day of January 1967 and the 31st day of December 1970, committed an act of gross indecency with or in the presence of RR.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Fifth Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RW at country town 1 between the 1st day of January 1967 and the 31st day of December 1969, indecently assaulted WW, by causing WW by force to move her hand toward his penis (amended).
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Sixth Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RW at country town 1 and other places, between the 16th day of July 1979 and the 18th day of July 1986, maintained an unlawful sexual relationship with CM, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with her, or towards her, namely:
a)Touching CM on the vagina;
b)Touching CM’s breasts;
c)Inserting a finger into CM’s vagina;
d)Inserting his penis into CM’s vagina;
e)Causing CM to touch his penis;
f)Causing CM to perform fellatio upon him;
g); not pressed
h)Masturbating in front of CM.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Seventh Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RW at Ardrossan between the 1st day of January 1981 and the 10th day of February 1982, indecently assaulted MR, by touching her breasts and vagina over her clothing.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Eighth Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
RW at country town 1 between the 1st day of January 1983 and the 31st day of December 1986, indecently assaulted TM, by touching her breasts under her clothing.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Ninth Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RW at country town 1 and other places, between the 1st day of January 1997 and the 14th day of September 2010, maintained an unlawful sexual relationship with EW a person under the age of 17 years, by engaging in two or more unlawful sexual acts with her, or towards her, namely:
a)Touching EW on the vagina;
b)Inserting his finger into EW’s vagina;
c)not pressed
d)Causing EW to touch his penis and testicles;
e)Sucking on EW’s breasts; and
f)Touching EW on her breasts.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Tenth Count
Statement of Offence
Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RW at country town 1 or another place between the 1st day of December 2008 and the 31st day of December 2008, indecently assaulted NW, by touching her breasts and vagina.
It is further alleged that NW was under the age of 14 at the time of the offence.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Eleventh Count
Statement of Offence
Aggravated Indecent Assault. (Ibid).
Particulars of Offence
RW at country town 1 or another place between the 1st day of December 2008 and the 31st day of December 2008, indecently assaulted DW, by touching her vagina.
It is further alleged that DW was under the age of 14 at the time of the offence.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Twelfth Count
Statement of Offence
Aggravated Indecent Assault. (Ibid).
Particulars of Offence
RW at country town 1 or another place between the 1st day of January 2010 and the 1st day of January 2011, indecently assaulted DW, by touching her vagina.
It is further alleged that DW was under the age of 14 at the time of the offence.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Thirteenth Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 14 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RW at country town 1 or another place between the 24th day of December 2009 and the 31st day of December 2009, had sexual intercourse with REW, a person under the age of 14 years, by inserting a finger into her vagina.
50
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Fourteenth Count
Statement of Offence
Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RW at country town 1 between the 17th day of June 2011 and the 18th day of June 2013, indecently assaulted TW by putting his hand inside her pants.
It is further alleged that TW was under the age of 14 years at the time of the offence.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Background to Trial
The alleged offences were not reported to police until 2015. The last of the alleged offending occurred in 2013. The accused was arrested twice in 2015. The first arrest on 20 July 2015 relates to eight of the complainants. The second on 3 September 2015 relates to the remaining three. The accused was 78 years old at the time of his arrest.
Between March and May 2018 there was a hearing in this Court to determine whether the accused was fit to stand trial. On 31 May 2018 the trial Judge delivered judgment finding he was unfit to stand trial. (R v W, R [2018] SADC 55). I need not pause to detail the reasons for that finding except to say that there was evidence before the Court suggesting some degenerative change in the accused’s mental capacity.
The Prosecution appealed against that finding. On 11 April 2019, the Court of Criminal Appeal delivered a judgment overturning the finding of unfitness. (R v W, R [2019] SASCFC 33).
The accused requested a trial by Judge alone, which commenced before me in September of this year. No application was made to revisit the question of the accused’s fitness to stand trial. I allowed the few defence requests during the trial for a pause in the proceedings to accommodate the accused.
There was no pretrial application to sever any of the charges or to exclude evidence. It became plain that an essential aspect of the defence case relied upon the evidence relating to all of the charges being heard together.
It was foreshadowed at the beginning of the trial that there might be some later applications to exclude or edit evidence. In due course, the defence filed a Rule 49 notice seeking the exclusion of the interviews police had with the accused at the time of his first arrest, and at the police station immediately following that first arrest. I excluded both interviews. I put both out of my mind. The Prosecution did not lead any evidence of conversations held at or about the time of the second arrest.
I also intimated that I would exclude parts of a conversation the accused had with Dr Geoffrey Seidel, the psychiatrist to whom the accused was referred for the purpose of the fitness inquiry. In the light of my intimation, the Prosecution did not lead any evidence from Dr Siedel.
Course of the Trial
The Prosecution called oral evidence from the following witnesses:
All eleven complainants;
Ms GW, the daughter of the owner of the farming property where the accused was employed as a farm hand during the first period referred to above;
HV, the sister of one of the older daughter’s friends;
AW and SW, the parents of the complainant granddaughters;
Ms Susan McNichol, a psychologist who became a witness companion pursuant to s 14A of the Evidence Act 1929 (SA) to assist REW, the second granddaughter;
Dr Jane Edwards;
KS, the husband of DS, the accused’s elder daughter;
Detective Brevet Sergeant Paul Clonan;
C, one of the daughters of CM, the accused’s younger daughter; and
BV, the mother of the two complainant friends of DS.
There were three statements of agreed facts (Exhibits P3, P38 and P44). The Prosecution tendered other exhibits.
The accused did not give or call evidence. That was his right. I draw no inference against him by reason of his exercising that right. The defence tendered a number of exhibits and a further list of Agreed Facts (D39). In due course I will identify and discuss the significant forensic disadvantage suffered by the accused as a result of the late reporting of the allegations. The earliest offending is alleged to have taken place about 57 years ago. The most recent is alleged to have occurred in 2013.
Ingredients of charges
Maintaining an unlawful sexual relationship with a child – Counts 1 (DS), 6 (CM) and 9 (EW)
The Prosecution must prove beyond reasonable doubt the following ingredients:
1.   The accused was an adult.
2.   The complainant was under the age of eighteen, where the complainant was under the authority of the accused (s 50(12)), or seventeen in the case of any other child.
3.   There existed a relationship between the accused and the complainant. That relationship may be sexual or non-sexual.
4.   The relationship was an unlawful sexual relationship by reason of the commission by the accused of two or more unlawful sexual acts with or towards the complainant over any period. The unlawful sexual acts themselves must constitute sexual offences.
I will set out the ingredients of the sexual offences under the other counts on the Information below but I set out here the sexual acts to which the particulars of each of counts 1, 6 and 9 and the corresponding sexual offences.
·Indecent Assault
Count 1 (DS) particular (a)
Count 6 (CM) particulars (a) and (b)
Count 9 (EW) particulars (a) (e) and (f).
·Unlawful sexual intercourse
Count 1 (DS) particulars (b) and (c)
Count 6 (CM) particulars (c), (d) and (f)
Count 9 (EW) particular (b).
·Gross Indecency
Count 1 (DS) particular (e)
Count 6 (CM) particulars (e) and (h)
Count 9 (EW) particular (d).
5.The accused maintained the unlawful sexual relationship. “Maintained” carries its ordinary meaning, that is “carried on”, “kept up” or “continued”. It must be proved that there was an ongoing relationship of a sexual nature between the accused and the individual complainant. There must be some continuity of conduct.

Consent is no defence to this charge. A child under 17 is incapable in law of consenting to sexual activity.
Unlawful sexual intercourse with a person under 14 – Count 13 (REW)
The Prosecution must prove beyond reasonable doubt the following two ingredients:
The accused had sexual intercourse with the complainant. Sexual intercourse includes digital and penile penetration of the outer lips of the vagina by a finger or penis and also includes fellatio.
The complainant was aged under 14 at the time.
Consent is no defence to this charge.
Indecent assault - Count 3 (RR), Count 5 (WW), Count 7 (MR), Count 8 (TM).
The Prosecution must prove beyond reasonable doubt the following ingredients:
1There must be an assault. A touching would suffice.
2The assault must be deliberate as opposed to accidental.
3The assault must be unlawful.
4The assault must be indecent according to contemporary community standards.
5The assault must be committed by the accused with a sexual purpose.
6The complainant must be under the age of 17 years. Consent is no defence to this charge. A child under 17 is incapable in law of consenting to sexual activity.
Aggravated indecent assault - Counts 10 (NW), Counts 11 and 12 (DW), Count 14 TW.
The Prosecution must prove beyond reasonable doubt that there was an indecent assault (see ingredients above). In addition, the Prosecution must prove the aggravating factor, namely, that the complainant in question was under the age of fourteen years.
Gross Indecency – Counts 2 and 4 (RR)
The following ingredients must be proved beyond reasonable doubt:
The accused performed an act with or in the presence of the complainant. The act must be directed towards or against the complainant. Consent is no defence.
The complainant must have been under the age of sixteen years.
The act must have been grossly indecent. The act must be indecent according to contemporary community standards of morality and decency, but must be something more than minor or trivial indecency.
It is convenient to set out some of the legal principles which arise for consideration in this trial and then separately seek to apply those principles to the evidence of individual witnesses.
Cross-Admissibility
In this case the prosecution submits that the evidence of sexual offending by the accused against each of the eleven complainants is cross-admissible. The submission is that in respect of each individual complainant the charged and uncharged sexual offending alleged by all the other complainants is admissible in support of the evidence of that individual complainant. Further, the evidence of other charged and uncharged sexual offending by the accused against that individual complainant is admissible in support of each individual act alleged by that complainant.
In no respect does the Prosecution rely on the other charged or uncharged acts as evidence of a propensity, proclivity or tendency on the part of the accused to behave in the manner charged. Instead the prosecution relies on the similarity of account of the other evidence. The Prosecution acknowledges that the probative weight of other charged or uncharged conduct is lost if the prosecution cannot exclude beyond reasonable doubt collusion between, or contamination by, other parties. I will discuss those topics separately.
The evidence of other charged and uncharged conduct is governed by s 34P to s 34S of the Evidence Act, under the description “discreditable conduct”.
In R v C, CA [2013] SASFCSC 137, Kourakis CJ (with whom Anderson J agreed and with whose reasoning on this topic Nicholson J agreed) described the “similarity of account” route to admissibility in these terms:
[57] The clearest basis for the cross-admissibility of the evidence of offending against each complainant on the trial of the offending against the others is that the testimonial accounts of the complainants demonstrates that the improbability that the conduct of which they complain was concocted or imagined by each of them independently of the others. I will refer to that basis for admissibility as the ‘similarity of account’ basis, and to evidence admitted for that purpose as ‘similarity of account evidence’. Strong probative force of similarity of account evidence was explained in Hoch v The Queen. (Hoch). It arises out of the improbability of person’s independently imagining or concocting stories with a high degree of similarity of detail. Section 345 of The Evidence Act has removed the common law condition for the admissibility of the similarity of account evidence as established in Hock. It is no longer a necessary condition of admission that the trial judge be satisfied that there is no possibility of collusion between the complainants. That is now an a factual question for the jury.
At [58] His Honour further explained the rational reason for admitting “similarity of account” evidence by considering how in a trial where such evidence was not admitted, the fact finder is denied rationally relevant probative evidence. His Honour said:
The rational reason for according that defence less weight, and therefore the probative force of the similarity of account evidence, lies in the improbability that several complaints, independently made, would share the substantial similarities apparent in the accounts of the complainants, given the great diversity in human behaviours and imaginations. If the similarity of account evidence excludes the hypothesis of independent concoction beyond reasonable doubt, the similarities can only be explained by collusion on the one hand or the truth of the complaints on the other.
Evidence of discreditable conduct by way of the charged acts involving other complainants or uncharged acts of complainants or other witnesses may only be admitted if it meets the requirements of s34P and s34R of the Evidence Act.
It is impermissible to use evidence of discreditable conduct to suggest that the accused is more likely to have committed a particular offence because he has engaged in discreditable conduct. Section 34P(1).
In cases, unlike this case, where discreditable conduct is admitted for propensity purposes, it is difficult to identify the impermissible use of such evidence. In R v M, BJ, [2011] 110 SASR 1 at [62] Vanstone J acknowledged that difficulty but suggested as appropriate the warning given by Cox J in Pfenning v The Queen (1995) 182 CLR 461 that such evidence could not be used to blacken an accused’s character. To do so would amount to condemning an accused simply on his record. In this case I bear in mind those impermissible uses.
The task in a case such as the present case is easier because propensity reasoning itself is impermissible. It is impermissible to reason from the discreditable conduct that the accused has a propensity to behave in a particular way and then to use that conduct in support of his guilt of a charged act. I will bear these warnings in mind when considering the evidence of the witnesses.
Even where a permissible use of the discreditable conduct is identified, s34P(2) requires that before it may be admitted its probative value must substantially outweigh any prejudicial effect. I will bear in mind that weighing process before taking into account any discreditable conduct.
In R v C, CA (supra) Kourakis CJ touched on the nature of the prejudicial effects such evidence might have on a fact finder. His Honour said:
[61] … the prejudice lies primarily in the antipathy to the accused which the multiple allegations will engender. That prejudice may distract a jury from any defects and frailties in the evidence directly bearing on the offences charged and predispose them to convict irrespective of the strength of that evidence. It is important therefore that the similarities of the accounts very strongly exclude the possibility of independent concoction so as to minimise the risk of miscarriage of justice on that score. The prejudice engendered by multiple counts relating to different complainants poses this risk on the issue of collusion. A defence of collusion undermines the very similarity on which the prosecution relies. The question of collusion can be evaluated relatively free of the prejudice engendered by the allegations.
Section 34P(3) requires me to have regard to whether the permissible and impermissible uses of discreditable conduct evidence can be kept sufficiently separate and distinct so as to remove any appreciable risk of the evidence being used impermissibly.
These considerations must be borne in mind before the evidence of discreditable conduct is admitted. In this case there was no application by the defence to exclude the discreditable conduct evidence. As I have already indicated it was understandable that the defence would take that position. A critical part of the defence case is that the complainants and other witnesses have talked to each other about the accused’s behaviour, allowing for collusion or contamination between the witnesses.
Nevertheless, I do not disregard the requirements of s34P or s34R. I appreciate that R v C, CA, (ibid) is authority for the proposition that, in the absence of a defence objection, a trial judge does not have to consider the issue of the admissibility of discreditable conduct,[1] but the evidence of discreditable conduct in this case is so voluminous that I consider it preferable that I do so.
[1] Per Kourakis CJ at [54].
Section 34R requires a trial judge to identify and bear in mind the purposes for which the discreditable conduct may and may not be used.
The permissible uses of the evidence of all complainants and some of the non-complainant witnesses, find expression in the case of R v March [2014] SASCFC 54. In that case the appellant had been charged with sexual offending against three girls, two of whom were his step granddaughters and one was his granddaughter. The trial Judge had directed the jury that the evidence of all three complainants was cross-admissible, not for the purpose of demonstrating propensity on the part of the accused to behave in a particular way, but to demonstrate a similarity of account so as to give rise to the improbability reasoning.
The Court of Criminal Appeal unanimously dismissed the appeal. Kelly J, with whom Sulan J agreed, would have permitted some evidence to have been used as evidence of propensity [28]. Kourakis CJ preferred not to so determine in that case [3].
Addressing the question of cross-admissibility for non-propensity purposes Kelly J said this:
[34] In my view having regard to these features of the appellant’s conduct, the girls’ accounts are such as to raise the improbability as a matter of human experience of each of them making up such similar accounts of indecent handling by the appellant who was respectively their grandfather or step-grandfather. In fact, the brazenness and the sheer impudence of the appellant’s indecent dealing with the girls amplifies the improbability of them independently fabricating such similar accounts.
[35] The facts of this case are not dissimilar to the facts in R v Ellis. Although that case was decided prior to the enactment of s 34P of the Evidence Act the reasons of the Court in concluding that the evidence of each complainant was cross0admissible at the trial are directly relevant to the issues which arise here.
[36] There is also a case where the combination of circumstances including the relationship of each child to the appellant, the time and place where each offence occurred, together with the nature of the indecent behaviour alleged, did reveal an underlying unity of a pattern which raises as a matter of common sense and experience the objective improbability of the events occurring other than as alleged by the prosecution.
[37] The sole criterion for admission of the evidence was the strength of its probative force. It is my view that its strength is such that to exclude it would be an affront to common sense. For these reasons I consider the evidence of V1, V2 and X was admissible in respect of each count.
In my respectful view Her Honour’s remarks are applicable in this trial to the evidence of all complainants and the non-complainant witnesses who testified about the accused’s behaviour. I will identify the application of these principles to the evidence of the individual witnesses in due course.
Separate Consideration
Notwithstanding the cross-admissibility of some witness’s evidence each count is to be considered separately. The evidence which relates to each is slightly different. Different considerations may apply. The verdict on one count does not affect the verdict on the others.
Collusion
A critical part of the defence case is that there has been a great deal of discussion between the complainants and other witnesses about sexual misconduct by the accused. As a result, false allegations have been made by all eleven complainants. Those false allegations may have been made in the knowledge of their falsity or they may have been made in the genuine, but mistaken, belief of their truth. On occasions, Ms Burgess for the defence put to witnesses a motive for them to lie. I will discuss that topic shortly, but more frequently the proposition put to witnesses was that they had come to make their allegations as a result of what they had heard from other people, whether they be other witnesses or unknown individuals in the community.
I accept that collusion may take several forms. Witnesses may get together and agree to tell a false story. In such an instance, the witnesses know that the story is false and they agree to tell it. Alternatively, it may be that only one witness of the two involved in the conversation knows the story to be false, but the other witness decides independently to tell their own false story. There has been no bilateral agreement to tell the false story, but rather unilateral action by of the hearer. It may be that one witness tells another a true story about the accused and the hearer decides to tell a similar but false story. Another possibility is that one witness tells the second a story about the accused, true or false, and the hearer imagines or comes to believe, wrongly, that the accused has abused her in a similar way.
It may be that some of these later scenarios might better be described as contamination rather than collusion, but the effect of all of them is that the discussion between witnesses of allegations of abuse against the accused leads to a proliferation of stories, some of which may be false. However it occurs, any similarity of account is therefore the product of collusion or contamination between witnesses. That is the explanation of the similarity of the accounts, not the truth of the accounts.
It is important to identify what in my view does not amount to collusion or contamination. It is not collusion if, as a result of discussion between witnesses, they feel confident enough to report abuse they have each genuinely suffered. It is not collusion if participants in a discussion about abuse they have genuinely suffered at the hands of the accused feel they should report that abuse to the authorities to protect others. It is not collusion if the account of one witness has revived a genuine memory about some aspect of abuse by the accused which a second witness had forgotten.
I appreciate that there is a tension between similarities and dissimilarities of account. It arises in this way. Unless there is sufficient similarity, the criterion for cross-admissibility of similarity of account is missing. In other words, there comes a point where dissimilarities of account negate cross-admissibility. On the other hand, near exact similarity of account may suggest collusion. Some dissimilarities may point away from collusion. The Prosecution bears the burden of proving beyond reasonable doubt that there has not been collusion or contamination. Wherever the Prosecution has been unable to disprove collusion, cross-admissibility is not permissible. The consequences where the Prosecution has been unable to disprove collusion or contamination are greater than the mere inadmissibility of other evidence. There must necessarily be a reasonable doubt about the credit of the witness involved. As Kourakis CJ pointed out in R v C, CA (ibid) at [100], a jury left in doubt about collusion would almost certainly return a verdict of not guilty. His Honour noted that a jury might well begin its deliberations on the question of collusion, or, I would add, contamination.
Motive to Lie
Defence counsel put to a number of witnesses that they had a motive to lie about the accused. I will discuss the suggested motives when dealing with each witness, but I bear in mind that even if I reject the suggested motive of a witness to lie, that rejection does not strengthen the case for the Prosecution. Lies may be told for no discernible reason. Critically, it is not for the accused to prove a motive for a witness to lie. The accused bears no onus of proof. The Prosecution must prove its case beyond reasonable doubt in respect of each count under consideration.
Complaint
The admissibility and use of complaint evidence is governed by s34M of the Evidence Act. I will deal with the evidence said to amount to complaint in respect of each complainant, but I bear in mind a number of principles concerning complaint evidence.
The only evidence capable of being admitted as evidence of complaint is that which comes within the definition of “initial complaint” in s34M (6) of the Evidence Act. Included in the definition of initial complaint is information provided by way of elaboration of the initial complaint, whether provided at the time of the initial complaint or at a later time.
If evidence of complaint is admitted, s 34M(4) provides direction on how that evidence may, and may not, be used. It may be used to inform the fact finder how the allegation first came to light (s34M(4)(a)(i)) of the Evidence Act. It may be used to bolster the credit of the witness complaining by demonstrating consistency of conduct on the part of that witness (ss(4)(a)(ii)).
Consistency of conduct has two aspects. The first is “consistency in the sense of making a complaint when one would expect a complaint to be made”. The second is “consistency between the incident that is alleged and the terms of the complaint”. R v J, JA (2009) 105 SASR 563 at [95].
The terms of the complaint evidence must be referable to the offence being complained about. The complaint must sufficiently encompass the charge even if it does not refer to specific details of the offence. (R v Place (2015) 124 SASR 467 [10]-[31]).
The complaint evidence is not evidence of the truth of what is said. (Section 34M(4)(b)).
When considering the evidence, it should be noted that there may be varied reasons why a complainant has made a complaint at a particular time and to a particular person (s34M(4)(c)).
For any elaboration of the complaint to be admitted there must be some sufficient connection between the first and the later words so that they can both be understood to relate to the same complaint. (R v Maiolo (No 3) [2014] SASCFC 89 at [82]).
No suggestion may be made that a failure to make, or delay in making, a complaint is of itself probative against a complainant’s credit or consistency (s34M (2)). However, that does not mean that delay, combined with other relevant matters, may not reduce the degree or significance of the bolster which is given to a complainant as evidence by consistency of conduct. (R v Jones [2018] SASCFC 80 at [117] – [129]).
In this case the prosecution indicated clearly what evidence it led as evidence of complaint.
Quite legitimately, the defence explored extensively in cross-examination what each complainant told others about the alleged offending by the accused and what each heard from others. None of the evidence so adduced may be used to bolster the credit of the individual complainant. That is so even if I do not accept the hypotheses relied upon by the defence. The evidence is only admissible when considering collusion or contamination.
Prior Inconsistent Statements

Much cross examination of witnesses was devoted to exploring prior inconsistent statements given by witnesses or failures to disclose in those statements evidence given for the first time in Court. Evidence from out of court statements is not admissible as evidence of its truth. The inconsistencies may only be used to undermine the credit of the witness. The degree to which the credit is undermined may or may not be affected by the witness’ willingness to accept the inconsistency.
In the case of some of the witnesses who had intellectual or other known disabilities, I invited the Prosecution to acknowledge the witness had in fact made prior inconsistent statements, or had not previously disclosed some evidence without the need for defence counsel to unduly explore that topic with the witness. The Prosecution obliged. Exhibit D39 is a statement of agreed facts containing admitted inconsistencies and evidence not disclosed before trial.
Inconsistencies in a witness’ evidence do not necessarily lead to the rejection of that witness’s evidence. In the case of R v M (1994) 181 CLR 487 at 534 McHugh J discussed how inconsistencies may be considered. Although His Honour was in dissent in the outcome in that case I do not understand the other members of the court to differ from McHugh J in these remarks. His Honour said:
It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give the greater is the chance that there will be discrepancies about the details and even inconsistencies in the various accounts. Of course, it is legitimate to test the honesty or accuracy of a witness’ evidence by analysing the discrepancies and inconsistencies in his or her accounts of an incident. In a case where accuracy of recollection is vital – such as the account of a conversation in a fraud case or the description of a person where identity is the issue – discrepancies and inconsistencies in the witness’ account may make it impossible to accept that person’s evidence, no matter how honest he or she appears to be. But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue. If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness’ general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment.
Vulnerable Witnesses
In respect of a number of witnesses, I ordered pursuant to s13 of the Evidence Act that special arrangements be made during the taking of their evidence. For the most part those arrangements consisted of the placing of a one-way screen between the dock and the witness box and the attendance next to the witness of a witness support person. In each case the witness support person was from the Witness Support Service. In other words, the support person was not a friend or relative of the witness. Some witnesses gave evidence remotely. The Court was closed for the evidence of these witnesses. I bear in mind the warnings in s 13(7) of the Evidence Act. I draw no inference adverse to the accused by reason of those arrangements. I do not allow the special arrangements to influence the weight to be given to the evidence. I will later discuss specifically the arrangements put in place during the taking of the evidence of REW and TW, two of the accused’s granddaughters, who are respectively the complainants the subject of counts 13 and 14 on the Information. They suffer from disabilities which required separate consideration.
Forensic Disadvantage
There has been a considerable delay in the report of the allegations made against the accused. In the case of DS, the accused’s elder daughter, and her two friends, RR and WW, the delay is of the order of 57 years.
In the case of the younger daughter, CM, and her two friends, MR and TM, the delay is about 40 years.
In the case of the five granddaughters, the delay varies from two years, in the case of TW, to 8 years in the case of EW.
If DS had reported abuse early during the alleged period of offending, the accused and his wife would have been aged in their mid to late twenties. In mid 2015, when the allegations were reported to police, the accused was 78. His wife was almost 79, and suffering from dementia. She died in 2018.
I will not pause to recite the relative ages of the parties at the time of the later alleged offending, nor will I set out the different forensic disadvantages related to each time period. I will however recite some of the many disadvantages to which Ms Burgess drew my attention in the course of her submissions and by cross-examination of witnesses. Section 34CB(2) and (3) set out the directions which I must give myself in this regard.
I accept and bear in mind that due to the lapse of time between all the alleged offending and it being brought to the accused’s attention, and later still to the trial, the accused suffers from a significant forensic disadvantage.
Witnesses who might have assisted him have died or became frail. They include the accused’s wife. She is said by several witnesses to have seen the accused naked in front of people around the house. That is only one of the many respects in which she might have given evidence contradicting those and other assertions. A young friend of DS is said by her friends RR and WW to have been present when the accused offended against them. That young girl died not long after the alleged incident. She might have contradicted the evidence of RR and WW. I bear in mind that I should not contemplate that the long delay might have disadvantaged the Prosecution (MSP v R [2019] SASCFC 120 at [29]-[30]).
Forensic disadvantage can take many forms. Records are no longer available. Neighbours cannot be called. Potential witnesses cannot be contacted or will not now assist. Photographs cannot be found. Vehicles have been sold. Houses cannot be accessed. Complainants cannot now usefully be medically examined. Witnesses’ memories have faded. As a result, their evidence has become more generalised than it would be expected to be if prompt complaint had been made. That makes it more difficult for the accused to meet the allegations.
The accused’s present advanced age makes it more difficult for him to recollect matters. He cannot therefore give his legal advisers the detailed instructions which might otherwise assist his case. I emphasise that I draw no inference against the accused for exercising his right not to give evidence, but in his favour I bear in mind that he might have been more able to give detailed evidence in his defence if he were younger. He may have been better placed to marshal witnesses and produce exhibits if early reports had been made.
I have not recited all the forensic disadvantages drawn to my attention, but I have read and reread Ms Burgess’ submissions on this topic particularly, from T1616 – 1627. I direct myself in the terms required by s 34CB(2) and (3) of the Evidence Act, (See R v Finn (2014) 119 SASR 207 at [16]-[35]).
I now turn to the evidence of each witness.
DS – Count 1 – Maintaining an unlawful sexual relationship with a child
DS is now 60. She is the eldest of the accused’s four children. She is 13 years older than her younger sister who is the youngest of the children. Her brother BW is five years younger than she is and her brother AW is ten years younger. All four children were born while the family lived on the farm where the accused was employed as a farm hand. The accused’s mother did cleaning work at the employer’s house on the farm and also occasionally did cleaning work away from the farm. Otherwise she stayed at home and looked after the family.
All three of the accused’s children who gave evidence said the accused was strict in disciplining them.   None suggested that he was cruel or unjust but, in common no doubt with many parents at the time, he administered corporal punishment for bad behaviour. He used a strap on them. That strictness is not to be regarded as discreditable conduct, but it does in my view go some way to explain why DS and CM made no complaint about what they say the accused was doing to them. EW, the eldest granddaughter, made specific reference to being smacked by the accused on one occasion[2] and after that being scared of him. The younger son, AW, said that he felt intimated by his father[3] because of his strictness.
[2]    T716-7.
[3]    T942 – T943.
All three of the accused’s children who gave evidence[4] said that their mother was not a particularly warm or approachable woman. All three were at pains to say that she provided for their physical needs but she was not an overly loving mother.
[4] DS, T38; CM T322 and AW T985.
DS says that her father sexually abused her from before she went to school until she began menstruating at about the age of thirteen.[5] She says the abuse occurred in her parent’s bedroom. She says that she fixes the beginning of the abuse by reference to two facts. The first is that she says it started while she was living with her parents on the farm. When she started school she was sent to country town 2 during the week. Her paternal grandmother lived opposite the school and she stayed with the grandmother for school, returning home on the weekends. The second fact is that she says BW’s bassinet was not yet in her parent’s bedroom. BW was born 5 years after she was, about the time she started school.
[5] T39.
In examination-in-chief, DS said that the offending began when she was between three or five.[6] In cross-examination she conceded she said in her second witness statement that it started between four and five.[7] She further conceded in cross-examination[8] that in a statement taken after a proofing session with the Prosecution this year, she said that it could have started a bit later. The cross-examiner put to her that that meant the abuse could have started after she turned six. DS said “it could have”. However she immediately went on to say that her memory was that it started before her brother BW was born. After further cross-examination, she said she was sure it started when she was aged between three and five.
[6]    T40.
[7]    T109.
[8]    T110 – T111.
DS said that the first occasion occurred when she went to her parents’ bed in the morning for a cuddle. When she got into the bed her mother left the room to attend to breakfast or some other chore. The accused began the abuse by touching her vagina with his fingers (Count 1, particular (a)). He then put his fingers in her vagina (particular (b)) and on other occasions put his penis into her vagina (particular (c)). She suggested that only the first two of those activities occurred on the first occasion.
She described the next occasion she could remember as the accused getting on top of her and putting his penis into her vagina. She said it felt like he was smothering her. His chest was on her face. He told her to be quiet.[9] She recalled feeling pain.
[9] T44.
The third occasion she can remember is when the accused pulled her pyjama pants down at the back. He rubbed his penis on her back then inserted it into her vagina. He told her not to tell anyone: “Don’t tell the police … the police will be on to us”.[10] DS said she only remembers the abuse occurring in her parents’ bed. She said it occurred “quite often, quite regularly”.[11] She said she could not recall any specific incidents apart from the three just described.
[10] T46-47.
[11] T47.
DS said that there were gaps in her memory. She said she had tried for many years to suppress memories of the abuse. When asked if she could remember any other occasion she said that her father was “always standing somewhere masturbating” (particular (e)),[12] or “playing with himself” (particular (d) not pressed). She said she had seen her father doing those things on the back veranda of the house on the farm, near a toilet by the nearby creek and by a chaff shed where the horses got fed.[13] Sometimes he was clothed when behaving in that way but “mostly not”.[14]
[12] T48.
[13] T48.
[14] T49.
She said that if her mother came out the accused would hide[15]. I took her to mean that she was never aware of anyone else seeing the accused exposing himself.
[15] T54.
She said she saw the accused behaving this way at the town house 1 in country town 1.[16] She had also seen the accused masturbate at a holiday house. At that holiday house DS said she saw her father alone in bed masturbating. At the time she was in her mid-teens. She took a photograph of him (Exhibit P6). She said the accused pulled up a sheet as she took the photograph. She said she took the photograph to “try to catch him out so that I’d have some kind of proof if something like a court case came up but it didn’t work”.[17] While I would not place undue weight on this evidence it has, in my view some significance. It would be an unusual photo to take were it not taken for the reason DS claimed. It shows her father alone in bed, seemingly (although not conclusively) naked. As DS concedes, the photo she took does not depict the accused masturbating. In that sense the photo “didn’t work”. I nevertheless give the photo some slight weight in support of DS’s credit.
[16] T54 and 56.
[17] T55.
There is evidence from several other witnesses of the accused exposing himself. Witnesses from the first period of offending are: GW, RR, WW, BV and HV. Witnesses from the second period are CM and TM.
However none of the grandchildren (EW, REW, DW, NW, TW) give such evidence, nor do their parents AW or SW.
Several witnesses[18] said that the accused’s wife had seen him naked in the presence of witnesses. She had told him to put some clothes on.
[18] RR, WW, HV and BV.
DS said that she never saw the accused sexually touching her sister CM or her nieces EW, REW, DW, NW or TW. It is to be noted that the accused was aged between 25 and 36 during the first period of the alleged offending (1962-1973), 42-49 during the second period (1979-1986) and 60-76 (1997-2013) during the third period. The exposure is alleged during the first two periods of alleged offending but not the third.
It is an agreed fact (Exhibit P38) that DS was told that in 2003 someone had made a police report regarding sexual behaviour involving the accused. She was told that police had attended his house in response to this. No evidence was led about the nature of that report. I know nothing about the content of the report or when the behaviour is said to have taken place. DS herself said in evidence that she understood that someone had reported her father for exposing himself in the garage of the town house 1 in country town 1. That evidence must necessarily be hearsay. There was no other evidence either confirming or denying such a report. If a report had been made while the family was living at town house 1, it may be that the accused desisted from such behaviour by the time of the third period of the alleged offending, which did not begin until 1997. By that time the accused had moved out of town house 1 and into town house 2.
I do not regard the evidence of the police report is admissible for the truth of the report. The agreed fact merely confirms DS was told of such a report, something she had mentioned in her own evidence. The agreed fact negates any suggestion she made up the evidence of hearing about the report.
I will turn later to a discussion of cross-admissibility of evidence between complainants and witnesses, but for the present I simply note similarities and dissimilarities between the evidence of the three complainants who allege that the accused maintained with them an unlawful sexual relationship. All three, that is DS, count 1, CM, count 6, and EW, count 9, say that the accused touched them on the vagina and digitally penetrated their vaginas. I pause to say that the Prosecution does not press as a particular of these three counts the allegation that the accused exposed himself to them. In respect of DS and CM, the particular was not pressed because it is not entirely clear what sexual offence would constitute such behaviour. In respect of those two witnesses, the allegation is maintained as an allegation of discreditable conduct. In respect of EW, the particular was not pressed because EW’s evidence on that topic was too uncertain.
I refer to the other particulars of alleged sexual offending against the three complainants which are not common to all three.
DS does not allege that the accused touched her breasts. CM and EW do.
Neither DC nor CM alleges the accused sucked their breasts. EW does.
DS does not allege that the accused caused her to touch his genitals. CM and EW do.
Neither DS nor EW alleges that the accused caused them to commit fellatio. CM does.
Ms Litster opened suggesting that there would be evidence of DS making an initial complaint of the accused’s offending against her to her cousin Ch, the daughter of the accused’s brother. DS gave evidence that when she was twelve she told her cousin that her father had abused her. DS said that within a week of that disclosure her father told her off “for telling someone”.[19] He added that they would both be in trouble with the police if she said anything.
[19] T60.
The prosecution no longer presses that conversation as evidence of initial complaint. Rather the evidence is there so as to elicit the evidence of the accused’s warning DS not to tell anyone what he was doing. In accordance with s34Q of the Evidence Act, I have regard to it for no other purpose.
I pause to add that there was evidence of a conversation some years later between DS and her sister CM in which DS told her sister about the accused’s abuse of her. The Prosecution does not suggest that that conversation is admissible as complaint evidence on the part of DS. It is instead lead as complaint evidence on the part of CM. The defence does not dispute that this later conversation took place. The defence submits that the conversation is evidence of collusion between the sisters or contamination of CM’s account by DS. I will return to that conversation more fully when considering the evidence of CM.
It is an agreed fact, (Exhibit P2) that DS moved out of the family home in 1979 when she married KS. She was 20 years old at the time. It is alleged that the accused began offending against DS’s sister CM in that year.
DS does not recall the events testified to by her friends, the sisters RR (Counts 2, 3 and 4) WW (Count 5) and HV (no charges), although each of these witnesses says that DS was present.[20]
RR – Counts 2 –Gross Indecency, 3 Indecent Assault and 4 Gross Indecency
[20] T64.
WW – Count 5 - Indecent Assault
It is convenient to consider together the charges involving DS’s friend RR and her sister WW. On the Crown case Count 3 involving RR and Count 5 involving WW are on the same event. Counts 2 and 4 are two offences alleged by RR to have been committed on two further, separate occasions.
RR and WW are sisters. Their maiden name was V. They are two of the children of the V family who lived in a small town not far from the farm where the accused’s family lived. RR, WW and their sister HV sometimes visited the accused’s family, particularly after Sunday school which they all attended. All three sisters gave evidence, although no charge relates to HV. Their mother BV also gave evidence. Their father has died. There are two other children in the V family who do not feature in the trial; a somewhat older sister than the three who gave evidence, and a brother who is either the youngest child or somewhere between the two younger sisters. Of the three sisters who did give evidence RR is the eldest, then WW and HV.
I turn to the charges involving the two V sisters, RR and WW. RR is 18 months older than WW. RR is about the same age as DS. They were school friends.

RR said that, although she was a school friend of DS, and they all attended the same Sunday school, she only visited the accused’s house 3 or 4 times. Each time was after Sunday School. It seems RR’s mother BV was friends with the accused’s wife LW. There is some uncertainty in RR’s evidence about the order of the events, the subject of the 3 charges involving her. I will refer to the three incidents as “the bedroom incident”, “the stick incident”, and “the willow tree incident”.
In her opening, the Prosecutor said that the three incidents involving RR occurred in the order that the charges were laid, i.e., Count 2 a charge of gross indecency is the bedroom incident; Count 3, a charge of indecent assault, is the stick incident; Count 4, a charge of gross indecency, is the willow tree incident.[21]
[21] T12-T13.
In examination-in-chief RR said that the stick incident was the first.[22] The willow tree was the second[23] and the bedroom incident was the third.[24] She said that after the last incident, the bedroom incident, she complained to her mother and said that she did not want to go back to the accused’s house again.
[22] T209-216.
[23] T216-218.
[24] T218-221.
I turn to RR’s account of the allegations.
First, the stick incident. RR said that she was at the accused’s house with other girls after Sunday School. A friend, SB, was also there, that helps to place the date of the allegation because RR says that SB was killed in a car accident shortly after these incidents. SB died in 1969. In 1969 RR and DS turned 11 and 10 respectively. The accused was 32. DS transferred school from country town 2 to country town 1 in 1968, halfway through grade 4, when her grandmother moved to Adelaide. DS and RR only came to know each other when DS moved schools. In 1969 RR’s younger sisters, WW and HV, would have been 9 and 8 respectively.
RR said that she was playing under a willow tree alongside the house with DS and SV. RR thinks that one, or both, of her sisters WW and HV were there. She does not mention her sisters being directly involved in this incident. She said that the accused came under the willow tree. He was naked. He chased the girls. He first grabbed hold of SB’s hand and put her hand on his penis. RR picked up a stick and hit him with it. The accused let go of SB and took hold of RR’s hands and put them on his penis. SB picked up a stick and hit the accused with it. The incident ended when the accused’s wife LW called out from the house telling the accused to “get away from there, get your clothes on”.[25]
[25] T215.
Of the three charges involving RR, counts 2, 3 and 4, only count 3, a charge of indecent assault, alleges the accused causes RR to touch his penis. Count 5, another charge of indecent assault, this time involving WW, also originally alleged that the accused caused WW to touch his penis. However, the particulars of that count were amended. The amended particular alleged that the indecent assault consisted of the accused causing WW, by force, to move her hands towards his penis. I will turn to the explanation of that amendment shortly. The charges, and the evidence of both women, suggest that counts 3 and 5 both relate to the stick incident.
Returning to the evidence of RR, she said the next incident also occurred under the willow tree.[26] RR said that she thought the same three girls were under the willow tree, ie, DS, SB and herself. She said her sister WW was nearby but when she saw the accused approach, naked, she ran to the swing on the other side of the house. RR said that the accused chased the three remaining girls while “flicking his penis up and down, flopping it around …”.[27]
[26] T216-T218.
[27] T218.
On that occasion the accused did not make contact with any of the girls. The incident ended when LW told him to get dressed. RR’s evidence is effectively that while WW was present on this occasion, she was not one of the girls being abused. She fled as soon as she saw the accused approach.
I will turn to WW’s evidence separately, but the Prosecution submits that WW has conflated aspects of the stick incident and the willow tree incident. The Prosecution’s case is that this allegation is the subject of count 4, a charge of gross indecency.
RR said that the third incident occurred when she and DS were alone in DS’s bedroom.[28] None of the other children were involved. RR said that she thought it was DS’s birthday. The accused came into the bedroom naked. DS told RR to get under the bed. She did get under the bed. The accused reached under the bed grabbing hold of her. He tried to pull her out. DS was hitting her father. The accused pulled the bed from against the wall, whereupon DS fell down hitting her head against the wall. LW came in and told the accused to get dressed. While RR described this incident in examination-in-chief as the last of the three incidents, it relates, on the crown case, to count 2, a charge of gross indecency. It became plain in cross-examination of RR why the charges had been laid in the order that they had, and why the Prosecutor’s opening followed that order. Ms Burgess elicited from RR that in a statement she gave to police in 2015, RR said that the first allegation of offending was the bedroom incident. The incidents after that were the willow tree and the stick incidents. Ms Burgess further elicited that, contrary to her assertion in court that the bedroom incident was “the last straw” and she told her mother that she would not go back to the accused’s house, she told the police that one of the events under the willow tree was the final straw. RR conceded that she could not now be sure in which order the events took place.[29]
[28] T218-T219.
[29] T285.
WW is the complainant in relation to count 5, the indecent assault said to be the stick incident. This is the count in which the particulars have been amended to delete the allegation that the accused caused WW to touch his penis. The words have been replaced with the words “by force, to move her hands towards his penis”.
Without contradiction by the defence, Ms Litster explained that the amendment became necessary because of a prosecution error. The crown case has always been that WW said that the accused caused her hand or hands to move towards his penis. There was never any suggestion in earlier witness statements, or in the prosecution opening, that the accused had actually made WW’s hand touch his spenis. In other words, the amendment was not brought about by the witness not coming up to proof.
WW speaks of playing on a Sunday with DS, SB and her sister RR. While she said that her other sister HV would sometimes be part of the group of children at the accused’s house after Sunday school, she does not mention her sister HV being there on the occasion of the stick incident. No one drew her attention to the absence of any mention of HV.
WW says that she, along with DS, RR and SB was playing on the road next to the accused’s house when the accused approached them naked.[30] He chased the girls. DS told them to run. The group ran along the road to the willow tree. She marked on one of the exhibits where they went. She said “… I think he grabbed [SB] first and we got him off, then he grabbed my hand towards his crotch area and I pulled with all my force and everything that I had in my body to get away from him before I touched whatever my hand was going towards”.[31] She said her hand was pulled towards his penis. She said that after the accused had grabbed hold of SB, her sister RR hit the accused with a stick. She said that after she herself got away from the accused, she ran towards the house where she got onto a swing. She did not believe DS got involved. She thought DS stood back. She said whilst she was on the swing the accused came to the corner of the house and coughed, apparently, she thought, to draw her attention to him. She tried not to look at him. She thought he might have been urinating. He had his hand near his crotch. After a while she ran into the house and waited until her mother came.
[30] T285.
[31] T286.
WW said that in the car on the way home she told her mother what had happened. Her sister RR was in the car. Again she made no reference to HV being there. She said that she never went back to the accused’s house after that time.
The principal differences between WW’s account of the stick incident and that of RR are these:
·RR says that the accused approached the girls whilst they were playing under a willow tree. WW says they were playing on the road and the accused chased them to the willow tree.
·RR says that after the accused grabbed SB, and was made to let go by her hitting him with the stick, the accused grabbed her. WW makes no mention of the accused grabbing RR. She says he grabbed her after being made to let go of SB.
·RR says that after she was grabbed by the accused, SB hit him with the stick. WW makes no mention of SB hitting the accused.
·RR says RV was present on that occasion. WW makes no mention of HV.
·RR says that the incident finished when the accused’s wife told him to get dressed. WW makes no mention of that intervention.
WW says there was an earlier occasion when, on a Sunday she saw the accused sitting naked in a chair on his veranda. His wife told him to get dressed. WW said she believed her mother was there at the time. She said something to her mother about seeing the accused naked and her mother said “just ignore it, he is a sick man, he is getting help”.[32] No other witness refers to that incident.
[32] T289.
In cross-examination WW agreed that in a statement she gave to the police in 2018 she said that this incident on the veranda occurred after the stick incident, not before.[33] She explained it was difficult to remember the order of things.
[33] T293.
WW also agreed in cross-examination[34] that she had not said in her first statement to the police in 2015 that the accused had been hit with a stick. She agreed that it was not until her third statement in 2018 that she mentioned the stick.
[34] T294.
However, in re-examination she confirmed that while she had not mentioned in her first statement the accused had been hit with a stick, she had said that she and RR had hit him their fists.[35]
[35] T314.
I turn to the account by HV. HV is the youngest of the V sisters giving evidence. She turned 8 in 1969. No charge relates to her.
HV says that for a couple of years she and her sisters went to the accused’s home every Sunday after Sunday school. She says that sometimes SB, the girl who died, was there and so was Ch, a cousin of the W children.
HV gave evidence of only one incident at the farm – the stick incident. HV said that on that occasion she was on a swing with the cousin Ch. She noticed the accused come from the corner of the house and hide behind the tree. He was naked. He took no notice of her on the swing. He was looking towards the other girls who were playing down by the creek. She said that down by the creek there were RR, WW, DS and SB. The accused then chased these girls. She saw her sister, whom she did not name, hit the accused with a stick. No one asked her which sister she saw hit the accused.
In cross-examination, she said that she did not actually see anyone hit the accused with a stick, but one of the girls was waving a stick at the accused.[36] HV acknowledged that she had not mentioned the stick in her first statement to police in 2015.
[36] T269.
In essential respects HV’s account of the stick incident is the same as that of RR and WW but it was told from a different perspective. She says she was not with the other girls whom the accused chased. She was on a swing some distance away.
She says she saw the accused naked, chasing the other girls and she saw a stick raised against him by one of them. She does not speak of the accused actually grabbing any of the girls. She said in examination-in-chief that she saw the accused being hit with the stick but in cross-examination she said she only saw the stick being waved at him. She makes no mention of any intervention by LW.
If, as she says, she was some distance from the incident, it is not surprising that RR and WW make no mention of her being there.
HV is the only one of the three sisters to mention the cousin Ch being present, but if, as HV says, Ch was with her at the swing, when the incident was going on, then it is unsurprising that neither RR nor WW mentioned her.
HV says that whilst she never went back to the farm again, she did go with her mother to a party hosted by LW at town house 1 some years later. She says that she was between 12 and 14 at the time. She turned 12 in 1973 and 14 in 1975. It is agreed that the accused and his family moved to town house 1 in 1974.
HV says that she and her mother noticed the accused naked in the passageway of town house 1 adjacent to the room where they and other women were gathered. She said to her mother “look at [RW]. Her mother said “Don’t look at him”.[37]
[37] T257.
In respect of counts 2, 3, 4 and 5 I turn to the evidence of the mother of the sisters, BV. Her evidence is principally concerned with three topics:
·Evidence of complaint by her daughters about the accused’s behaviour during their visit or visits to the farm.
·The incident at town house 1 where it is alleged by HV that the accused appeared naked in the passageway during a party hosted by LW.
·Observations said to be made by BV of the accused, naked and masturbating, in the park opposite town house 1.
BV says that on an occasion when her three daughters RR, WW and HV visited the farm after Sunday school she was driving them home. RR told her about the stick incident which had happened that day. She said RR told her about the incident but the others confirmed what RR said. In my view, that evidence is evidence of complaint on behalf of RR about the stick incident. The complaint was made at the first available opportunity and its terms are consistent with the essential evidence of all three sisters. BV says that on a later occasion, when she collected RR alone from a visit to the farm, RR told her that the accused had come into a bedroom naked. DS had told her to get under the bed “so RW could not get us”.[38] BV said that RR did “not exactly” say what the accused was doing. BV said that RR said that she never wanted to go back to the accused’s home.
[38] T1417.
I will not regard this as evidence of complaint about the bedroom incident because it does not sufficiently relate to that topic. I will have regard to it only as evidence tending to identify the order of the incidents, however imperfect that evidence may be.
Without defence objection, BV said that she later spoke to LW in the street. She told her that her children would not be visiting anymore and she informed LW of the reason for that. She said LW was upset. LW said that she knew that her husband was in the nude but she could not do anything about. She apologised.
Despite the lack of defence objection, I should identify what of this evidence is admissible and for what purpose. Working backwards, I rule that LW’s responses to BV are inadmissible for any purpose. The evidence is hearsay.
On the other hand, I think that the fact of BV’s conversation with LW is admissible, but for one purpose only. It tends to confirm the evidence of RR that at a point, she refused to go back to the farm, by reason of the accused’s behaviour. That is despite her apparent continuing friendship with DS and BV’s continuing friendship with LW. It also tends to confirm the evidence of BV and RR that the visits by the sisters to the farm were few in number. HV, by contrast, says that they visited the farm every Sunday for a couple of years. The refusal to go back to the farm is consistent with, although not of itself determinative of, the sexualised behaviour being committed by the accused, rather than by Mr B alone. Mr B is a man whose penis the sisters saw near their own home. The defence put to each of the three sisters that they had confused what they saw of Mr B and what they saw of the accused. All three denied any such confusion.
I bear in mind the forensic disadvantage the accused suffers by reason of his wife’s death. If prompt complaint had been made, she might have given evidence denying that she told the accused to desist from the alleged behaviour. She might have denied that BV spoke to her about it.
The second topic about which BV gave evidence relates to the party hosted by LW at town house 1. BV says that, although the party was for women only, she took her youngest daughter HV, who was then a teenager, because no alternative arrangements could be made for her. There are some minor differences in the account of BV and HV about the incident, which do not seriously detract from the credit of either. BV says it was a Tupperware party. HV says it was a party where the women were drawing on fabrics. BV says that she saw the accused naked in the passageway. She told him to go and get dressed. HV makes no mention of her mother speaking to the accused. She says her mother simply told her, HV, not to watch.
The third topic BV speaks about is seeing the accused on a number of occasions naked and masturbating in the park opposite town house 1 where he was then living. The accused was living in town house 1 between 1974 and about 1991 when he and LW separated. BV said that on each of a couple of occasions she was alone in her car driving to work in the morning. Despite her being aged 87 when she gave her evidence, BV was a forthright and clearly spoken witness. She said there was no possibility of her having mistaken the accused for anyone else, nor to have mistaken that he was naked and masturbating. She said she changed her route to work as a result of what she had seen.[39]
[39] T1420.
I say something further about the evidence of complaint. RR says that while her mother was the first person she told about what the accused had done to her, she did not complain until after the bedroom incident.[40] She was alone with her mother at the time. She said she spoke to her mother alone because she did not want to talk about it in front of others. She said the conversation with her mother began when she said she did not want to go back to the farm anymore. When her mother asked her why she told her “… he tried to get me under the bed, he was naked, and he tried to get me under the bed, touching me and he made us, was chasing us under, naked, under the tree, under the willow tree”.[41]
[40] T219.
[41] T221.
That complaint might reasonably be seen as referring to the bedroom incident, (count 2). It is not clear whether it also refers to one, or both of the stick incidents (counts 3 and 5) or the willow tree incident (count 4).
The complaint evidence of WW, HV and BV, seems on the face more likely than that of RR. WW says that she and RR told their mother about the stick incident in the car on the way home. That is what BV says she was told.[42] Both WW and RR told their mother not to take them back there again.[43] WW makes no mention of being present at the separate incident I have been describing as the willow tree incident. She makes no reference as to any complaint about a separate incident.
[42] T1416.
[43] T209.
Although HV was not asked in examination-in-chief to give complaint evidence, presumably because no charge relates to her and complaint evidence would be inadmissible, she was asked in cross-examination whether she reported the stick incident to her mother. She said she could not remember, but she was sure her sisters would have done. She surmised that her mother was told on the day it happened.[44]
[44] T278.
I think it likely that RR complained to her mother on a different occasion about the bedroom incident (Count 2). Nevertheless the Prosecution seeks to rely only on RR’s complaint about the stick incident.

I find that NW was a credible witness who was doing her best to tell the truth and accurately describe what the accused did to her. I acknowledge the inconsistencies and uncertainties in her evidence. I acknowledge her somewhat diffident denials of the accused’s wrongdoing when spoken to by the police at the school. Nevertheless, NW’s account gains some support from the similarity of accounts by her sisters. The brazenness of the accused’s alleged behaviour is made somewhat less remarkable by the evidence of the other witnesses.
There is one aspect of NW’s evidence which I think is particularly telling. That is, yelling out to her father in the bus and the accused saying “cheeky bugger”. Significantly, in my view, NW says that the accused never touched her again.
I am satisfied beyond reasonable doubt that the accused indecently assaulted NW in the bus at Christmas 2008. NW was nine at the time.
DW – Counts 11 and 12 – Aggravated Indecent Assault
DW says that on the family trip in the bus in 2008 the accused indecently assaulted her by touching her vagina over, then under, her knickers. He did this in the back seat of the bus. The accused was sitting in between her and NW. The accused began by tickling her before he indecently assaulted her. DW was 10 at the time. That allegation is the subject of count 11.
Count 12 relates to an allegation that the accused indecently assaulted DW in the bus in 2010 when the family went to the sporting event in country town 1. DW gave evidence about that occasion. She says she saw the accused indecently assault her youngest sister TW. That allegation is the subject of count 14. However, DW did not give evidence of the accused touching her inappropriately on that occasion. In that sense, I conclude that she did not come up to proof. Ms Litster invited me to find no case to answer in respect of count 12. I have so found.
DW alleges an uncharged act by the accused on a jetty when the family was on a fishing trip.
DW also said that between the ages of 13 and 17 the accused would rub her bottom just about every time they met. That is what he had done on the jetty on the fishing trip. He would also comment on her developing figure. DW said that as a result of his behaviour towards her, she did not take up his several offers to accompany her when she was driving to qualify for her full driver’s licence.
Like her sister NW, DW did not disclose any offending by the accused when interviewed by the police at school. She did not report any offending by the accused until 2017.
One of the attacks on DW’s credit is that she did not come up to proof in relation to count 12. In examination-in-chief Ms Litster led DW through her evidence relating to what she says she saw the accused do to TW in the bus on the sports day. Ms Litster then approached what no doubt she expected would be DW’s evidence about what the accused did to her on that occasion. Ms Litster asked if the accused was tickling anyone on the bus during the day. DW said she could not remember. Ms Litster asked DW if he had tickled her. Again DW replied that she could not remember.[153] Ms Litster had opened on this topic by foreshadowing that DW would say that in the bus on the sports day the accused tickled her, then proceeded to indecently assault her. When DW said that she could not remember, Ms Litster moved on to another topic. Understandably DW was not cross-examined on this topic.
[153] T1045.
I accept that the failure to come up to proof damages DW’s credit. However, I do not on that account disbelieve her evidence, both as it relates to the charge involving TW (count 14), or the other charge involving her (count 11).
I say that because I found her to be an honest and generally reliable witness. She was careful not to say something she was unsure of. She said that on the Christmas bus trip in 2008 she had seen the accused turn in the back seat to her sister NW, but because she was not 100% sure of what he was doing she made no allegation of his touching NW inappropriately.[154]
[154] T1104.
I found her evidence about the accused touching TW on the sports day compelling. I will elaborate later. DW was frank about the discussions in the family home after the police interview at the school.[155]
[155] T1079.
DW’s evidence gains some support from the similarities of the accounts of some of her sisters. It also gains support from other witnesses who testified to the brazenness of the accused’s conduct.
I found DW’s account of the touching of her whilst on the jetty persuasive. Likewise her evidence about the accused touching her on the bottom when he greeted her. The allegation comprising count 11 does not come out of the blue.
I am satisfied beyond reasonable doubt the accused indecently assaulted her in the bus at Christmas 2008 as she says he did. She was 10 at the time.
REW – Count 13 - Unlawful Sexual Intercourse with a child under 14
REW says that on a Christmas trip in the family bus the accused digitally penetrated her vagina. He also made her touch his penis. It is reasonably clear that the family had the bus for no more than three years after they purchased it in about April 2008. In November 2008 REW turned 12. There is some uncertainty in REW’s evidence about whether she says the incident occurred in 2008 or 2009. In her evidence she says it occurred in 2008. The Information alleges it occurred IN 2009. I accept that she told the police it was probably 2009. If I were to be satisfied beyond reasonable doubt that the act occurred as alleged it would not matter if I found it happened at a time different from the alleged in the information.
I say something about the evidence indicating that REW suffers from a mild intellectual disability. I will not recapitulate what I have already said but, in my view, there is no reason to think that by reason of her disability REW is less likely than other witnesses to be truthful. The psychological report and the evidence of Ms McNichol indicates that REW may have difficulties processing complex questions. I could see REW having some difficulties in the witness box but I have already given an example of where she understood perfectly what was being asked when questions were reframed appropriately.
Ms McNichol said that REW might be inclined to agree with suggestions put to her without considering the implications. That was not evident in REW’s evidence. I have no reason to think that REW has made her allegations about the accused because they were suggested to her by someone else. Unlike her sisters DW and NW, REW told the police at the school that the accused had offended against her. I infer that what she told the police was, in essential respects, the same as what she said in court. It was not suggested to her in cross-examination there was any substantial difference. The agreed inconsistencies in Exhibit D 39 paragraph 9, do not suggest otherwise. The inconsistencies there agreed are relatively minor.
I note that the agreed inconsistencies do not contradict REW’s denial that the interviewing policewoman began the interview by saying that police had heard that something had happened to TW.[156] Despite that lack of agreement I am willing to accept that Ms Burgess put accurately to REW that the police officer had indeed begun the interview in that way.
[156] T 928.
Nevertheless, it was never suggested to REW that she did not proceed to tell the policewoman that the accused had offended against her in essentially the manner she described in court. Whatever REW said to the police is not to be treated as evidence of complaint. However, it is relevant to the question of whether she has colluded with anyone else before the interview or whether her account has been contaminated by that of anyone else. I have already found that neither is the case. REW had no notice of the attendance of the police at her school.
I found REW to be a truthful and, in material respects, a reliable witness.
I am satisfied beyond reasonable doubt that in the family bus the accused had unlawful sexual intercourse with her by penetrating her vagina with his finger.
I find that, contrary to the date alleged on the Information, the incident occurred in 2008. The reason for that finding is that REW’s evidence is that the incident occurred not long after the family moved to country town 3.[157] That move occurred in April 2008.
[157] T870.
I appreciate that that finding means that the accused offended against three of the sisters on the same day. However, REW says that the incident occurred at night on the way home from the Christmas celebrations.[158] DW and NW say that the incident involving them occurred on the way to the function.[159]
[158] T870.
[159] DW at T1033 and NW at T1116.
REW – POSTSCRIPT
Several days before delivering these Reasons for Verdict, and at the time when I had made findings in respect of the evidence of REW, Ms Burgess indicated that she had recently been apprised by the Prosecution of new information regarding REW. At that stage she was unsure what, if any, application she might make to the Court to ventilate the matter. I invited both counsel to confer so that there might be some narrowing of issues for further consideration. Two days before the Verdicts were to be delivered the matter was called on. The parties had agreed some facts which were tendered by consent (Exhibit P 44). I reproduce those agreed facts:
1.     In June 2019, REW reported to a doctor that:
a.     She had a history of short-term memory disorder and hallucinations.
b.     She had been prescribed Escitalopram (an antidepressant) and Quetiapine) an antipsychotic) to deal with her mental health concerns.
c.     She was taking and had been prescribed Quetiapine, a night time medication, “to stop the ghosts/spirits that pop up”.
2.As at the time she gave evidence she was taking the medication she had been prescribed for her mental health difficulties.
Both counsel made submissions about how those facts should be considered. Both agreed that I should receive and consider the new material.
Ms Litster submitted that the facts disclosed that at the time REW was giving her evidence she was taking the medication prescribed for her mental health difficulties. There was no reason to think that those difficulties affected her perception, or her memory, at the time of the alleged offending in 2008, (as I have found) when she was 12, or when she was interviewed at her school by the police in June 2015, when she 18.
Ms Burgess submitted that while she was not applying to have REW recalled to give further evidence she would have asked REW questions about the effects of her mental health problems. Ms Burgess submitted that the new material should cause me to doubt the evidence of REW, by which I took her to mean both REW’s truthfulness and reliability.
Further, Ms Burgess submitted that the doubts I should now entertain about the evidence of REW should affect the other witnesses with whom she has any contact.
I reject the defence’s submissions. I perceived nothing in REW’s evidence to suggest she was suffering from a short-term memory disorder. It is true that there are inconsistencies in her evidence. The most notable is her vacillation between 2008 and 2009 as the date of the offending in the bus. The other inconsistencies set out in paragraph 9 of the agreed facts, Exhibit 39 are in my view relatively minor. I have already considered these matters.
There was nothing in REW’s evidence to suggest that she was suffering from hallucinations, either on the occasion in the bus, or during the police interview. There was no indication that she was so suffering in the witness box.
I repeat my observation that REW was the only one of the 3 sisters interviewed by the police at the school in June 2015 who disclosed abuse by the accused. She had no notice that the police were going to interview her.
While I find that the officers did, contrary to her denial, begin the interview with REW by referring to a report that TW might have been abused by the accused, that does not cause me to suspect that REW has decided to falsely make a report of abuse herself.
I reject the submission that there arises from the new information about REW a possibility that she has colluded with others or contaminated the account of others. I remain satisfied that there has not been collusion with or contamination of other witnesses account.
The new information does not cause me to change my finding that REW was an honest and, in material respects, a reliable witness.
I am satisfied beyond reasonable doubt that REW truthfully and accurately recounted what the accused did to her in the bus on the way home from the Christmas celebrations in 2008.
TW – Count 14 - Aggravated Indecent Assault.
TW gave evidence of the accused indecently assaulting her in the family bus on the sports day, count 14. If the sports day was in 2010, as other evidence would suggest, TW turned six in June that year. TW said that the accused also indecently assaulted her on an occasion at the accused’s dining table. That is uncharged.
TW said that the accused touched her inappropriately on other occasions but she gave no details.
The psychological report of Dr Piet Crosby[160] suggests that TW has cognitive abilities in the extremely low range. There is no reason to believe that TW is less likely on that account to be any less truthful than other witnesses. The diagnosis may however indicate that TW might have difficulties processing information and recollecting events. The two interviews conducted with TW were when she was 11 and 13.[161] TW’s unsworn evidence in court would bear out those observations. That said, I did not notice TW having difficulties in understanding questions in cross-examination if they were framed appropriately.
[160] Exhibit P19.
[161] Exhibit P30 and P31.
I bear in mind that TW’s evidence in court was unsworn and her examination-in-chief took the form of the interviews. I nonetheless satisfied myself that TW could tell the difference between the truth and a lie.
I turn to consider the evidence relating to the allegation forming count 14. The defence points to relevant inconsistencies in the accounts given by witnesses.
TW says that at the time of the touching by the accused the others in the bus were her parents and REW. Both parents say that AW was not there. REW does not say that she was there. Nor does anyone else say REW was there.
On the other hand, DW says that she was there when it happened. She is the only witness who says that.
There are different accounts of where TW was when the touching was said to have occurred. TW says she was on the accused’s lap. SW says the same. DW says TW was standing near him.
All three witnesses say SW noticed what happened. SW says she saw through the head rest of her seat. TW says that her mother noticed in the rear vision mirror. DW says that her mother turned around. There are other differences of a more minor nature.
I find that DW’s account is the most reliable. She gives some detail about how she was sitting sideways in one of the child seats. She said that the accused appeared not to notice that she was watching. DW turned 12 in 2010. I think her recollection is more likely to be accurate than that of TW who turned six that year. Despite the mother’s greater maturity, I think she is mistaken about at least one pertinent aspect of this incident. She thought TW was still in nappies. I think she is mistaken in not remembering that DW was there. Nevertheless I do accept that she noticed what the accused was doing and she called TW to come to her. I think AW has correctly remembered that when he came back to the bus TW was sitting up the front with her mother.
The defence emphasises TW’s failure to mention this incident when given every opportunity to do so in the first interview by the Child Protection Services Officer. However it cannot be said that TW had never made a complaint about the accused behaving inappropriately towards her. Whilst what TW said to EW before that interview is unknown, and cannot be used as evidence of complaint, the report by TW to EW mitigates against collusion and contamination. It also militates against any suggestion of recent invention at the time of the second interview in 2017.
TW’s evidence of the touching is, in essential respects, corroborated by SW and DW. It is a similar account of the accused’s behaviour to that of other witnesses. It is less improbable for that reason. The brazenness of the behaviour is made less remarkable by the evidence of other witnesses.
TW says that on a separate occasion at the accused’s dining table, the accused touched her on the vagina on the inside of her clothes. This act is uncharged. Her mother noticed and told her to go and play eight ball. SW confirms an important aspect of that account. Whilst SW was careful to say that she did not actually see the accused touch TW in the area of her vagina, she was so concerned about his having his hands under the table, with TW on his lap, that she told TW to go and play eight ball. I find that the accused did touch EW on the vagina on this occasion.
Despite the criticism of the evidence of the three witnesses, and despite TW’s evidence not having the sanction of the oath, I am satisfied beyond reasonable doubt that at the sports day in 2010 the accused indecently assaulted TW by putting his hand or hands down the front of her pants with a sexual purpose. TW’s turning six that year means the offence takes the aggravated form.
AW and SW
I have already analysed most of the evidence of each of AW and SW where that evidence bears on the charges involving each count. I have accepted and rejected parts of the evidence of each of them.
I make some observations about the credit of each. I find that both witnesses did their best to truthfully and reliably give their evidence. Each had difficulties in recollecting events. AW is not a sophisticated man and he admits that his memory is poor. SW has some intellectual difficulties. There was no evidence of the nature of that limitation, but in the witness box it was plain that she had difficulty processing questions. Often there were quite noticeable pauses before she answered. Those pauses are not noted in the transcript but they were frequent. Often SW said that she did not understand the question. Sometimes those questions were quite straightforward.
The defence legitimately submits that AW saw no improper behaviour by his father and SW gives evidence of only the two incidents with TW. Neither saw anything of the long term abuse that EW says she suffered. Neither saw the discrete allegations of the three middle daughters. The defence elicited from AW and SW that they had been given something of a muted warning about the accused from DS and CM. Despite those warnings they saw nothing inappropriate in the accused’s behaviour. They seem to have put no effective limitation on the accused’s access to their daughters.
The defence particularly relies on the evidence of AW where it tends to contradict the evidence of his daughters. The defence relies on SW’s intellectual difficulties to cast doubt on the few instances of her supporting the evidence of, particularly, TW.
I do not accept that AW’s failure to observe any impropriety on his father’s part weakens the evidence of the complainants, whether they be his own daughters or his sisters or their friends. I find that AW was intimidated by his father and unlikely to effectively intervene even where, as I find is the case, he had reason to suspect that his father had interfered with TW on the sports day.
It is remarkable that AW did not see his father exposing himself as so many witnesses say he did, but perhaps his father took some care in only behaving in that way when females would notice.
The most significant evidence of AW being unable to appreciate what his father was doing was his reaction when EW complained to him about the accused. I accept her evidence that he hit her and told her not to tell lies.

So far as SW is concerned, I find that her intellectual difficulties, combined with the need to look after six children, made it difficult for her to appreciate what was going on. However, I do not think that her difficulties make her less likely to be truthful. I have accepted her truthfulness and reliability in the material respects in which she supports the evidence of TW.
Conclusion
I am satisfied beyond reasonable doubt that the accused has committed all the offences from counts 1 to 14 except count 12 where I have found no case to answer.
Verdicts
Count 1     Maintaining an Unlawful Sexual Relationship with a child    Guilty
Count 2     Gross Indecency   Guilty
Count 3     Indecent Assault   Guilty
Count 4     Gross Indecency   Guilty
Count 5     Indecent Assault   Guilty
Count 6     Maintaining an Unlawful Sexual Relationship with
A Child   Guilty
Count 7     Indecent Assault   Guilty
Count 8     Indecent Assault   Guilty
Count 9     Maintaining an Unlawful Sexual Relationship with
A Child   Guilty
Count 10   Aggravated Indecent Assault   Guilty
Count 11   Aggravated Indecent Assault   Guilty
Count 12   Aggravated Indecent Assault   No case to answer
Count 13   Unlawful Sexual Intercourse with a Person under 14 years     Guilty
Count 14   Aggravated Indecent Assault  Guilty.