R v Y, K
[2015] SADC 29
•3 March 2015
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v Y, K
Criminal Trial by Judge Alone
[2015] SADC 29
Judgment of Her Honour Judge Davey
3 March 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is charged with two counts of Persistent Sexual Exploitation of a Child - the accused is the step-father of the two complainants - the offences allegedly took place when they were children and over a lengthy period of time. There was a significant delay before the trial. The evidence included uncharged acts of violence directed towards the step-children. The accused elected for trial by judge alone.
Verdict: Count 1 Not Guilty; Count 2 Guilty.
Criminal Law Consolidation Act 1935 s 50; Evidence Act 1929 ss 34CB, 34O, 34P, 34Q, 34R, 34S and 67D-67F, referred to.
R v D (1998) 71 SASR 99; R v Geesing (1984) 39 SASR 111; R v Horsfall (1989) 51 SASR 489; Hardwick v Western Australia (2011) 211 A Crim R 349; R v Cassebohm (2011) 109 SASR 465; R v Bakhuis (2012) 112 SASR 536; R v Maiolo (No 2) (2013) 117 SASR 1; R v C, CA [2013] SASCFC 137; R v MJJ; R v CJN (2013) 117 SASR 81; R v March [2014] SASCFC 54; R v T,WA [2014] SASCFC 3, considered.
R v Y, K
[2015] SADC 29Introduction
The accused is charged on Information with two offences of Persistent Sexual Exploitation of a Child.[1] The names of the complainants on the Information differ from those used by the complainants when they gave evidence. I refer to the complainants by an initial.
[1] The Information dated 23 September 2013 contained five counts. Counts 1 to 4 alleged sexual offences against Z and R. Count 5 alleged an offence of Endangering Life which, whilst not specified on the Information, concerned the brother of Z and R, S. On 29 September 2014 I made an order for severance of Count 5. A later Information dated 30 September 2014 alleging two counts of Persistent Sexual Exploitation of a Child was laid in respect of the alleged sexual offending against Z and R; this was the Information that proceeded to trial.
The offences charged are:
First Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[KY] between the 1st day of January 1978 and 31st December 1988 at Mile End, Waterloo Corner and other places, over a period of not less than three days committed more than one act of sexual exploitation of [known as Z when she gave evidence], a person under the age of 17 years by:
a) inserting his fingers into her vagina on numerous occasions;
b) touching her on the vagina on numerous occasions;
c) touching her on the breast on numerous occasions;
d) causing her to touch him on the penis on numerous occasions;
e) inserting his penis into her vagina;
f) touching her on the bottom on numerous occasions; and
g) placing his penis on her vagina on numerous occasions.
Second Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Ibid)
Particulars of Offence
[KY] between the 1st day of January 1978 and the 31st day of December 1990 at Waterloo Corner and other places, over a period of not less than three days, committed more than one act of sexual exploitation of [known as R when she gave evidence], a person under the age of 17 years by:
a) inserting his penis into her vagina on numerous occasions;
b) touching her on the breasts on numerous occasions;
c) inserting his finger into her vagina on numerous occasions;
d) kissing her on the bottom on numerous occasions;
e) rubbing his penis against her on numerous occasions;
f) causing her to touch him on the penis on numerous occasions; and
g) causing her to touch him on his bottom on numerous occasions.
The accused elected to be tried by a Judge without a jury.
General Background
The accused (KY) is the step-father of the complainants. He formed a relationship with their mother (DY) and they married on 31 May 1980. DY had three young children; two daughters R, Z and a son, S.
R was born on 13 February 1973.[2] Z was born on 21 May 1974.[3] S was born on 4 December 1975.[4] At the time of trial R was 41 years old; Z was 40 years old and S was 38 years old.
[2] T33.
[3] T240.
[4] T475.
When the complainants’ mother DY first knew KY, the family were living at Farnham Street, Keswick. Shortly thereafter the family moved to Hughes Street, Mile End. During the time at Hughes Street, KY and DY married. The family later moved to live at a property at Waterloo Corner. Offending allegedly occurred at Hughes Street and Waterloo Corner and some places outside the homes.
R, Z and S allege a history of extreme discipline and punishment. R and Z allege that they were also sexually abused. They allege that the abuse and violence occurred over many years and they witnessed some incidents of violence upon each other. S gave evidence of discipline and punishment. He also gave evidence of witnessing sexualised behaviour by KY towards R and Z.
The prosecution also called Mr Graeme Hazledine who was a pastor of the church attended by KY and DY. He gave evidence of admissions by KY of excessive physical punishment and at a later time, sexual touching of R by KY.
The accused did not give or call evidence.
There was a significant delay between the time of the alleged offending and the trial. The offending allegedly occurred between 1 January 1978 and 31 December 1988. The delay between the alleged events and trial was 24-36 years.
Persistent Sexual Exploitation of a Child
To prove the offences charged the prosecution must prove each of the following elements or ingredients beyond reasonable doubt:
·That the accused was an adult at the time he committed the alleged acts of sexual exploitation;
·That the accused committed the acts against a particular child;
·That the child was under the prescribed age (ie under 17 years);
·That the accused committed more than one act of sexual exploitation;
·That the acts were committed over a period of not less than three days.
I note that I do not have to be satisfied beyond reasonable doubt of all of the acts alleged; it is sufficient if the prosecution proves at least two acts of sexual exploitation.
A person commits an act of sexual exploitation if he commits a sexual offence. Section 50 of the Criminal Law Consolidation Act, 1935 (CLCA) defines ‘sexual offence’ to include offences created by the CLCA comprising a wide range of sexual offences such as rape, unlawful sexual intercourse, indecent assault and gross indecency. The prosecution does not have to prove two or more sexual offences of the same type: the acts may involve the same type of sexual offence or different types of sexual offences.
Issues at the trial
In respect of each charge the issue at trial was whether or not it was proved that the alleged acts occurred. No issue arose as to identity or whether the conduct alleged by the complainants would amount to the offences charged; the issue was whether the prosecution had proved beyond reasonable doubt that the events alleged occurred.
The prosecution case relied principally upon the evidence of Z and R together with the evidence of their brother (S) and the alleged admission made to Mr Hazledine. The prosecution case also relied on the admissibility of evidence from Z to the charge concerning R and in respect of R to the charge concerning Z. The evidence from each of the complainants concerned the description of corporal punishments (including sadistic behaviour) administered by the accused and acts of sexual offending. Some of the conduct (although not all) was witnessed by the other complainant.
Two areas of evidence call for special consideration of admissibility because they tend to suggest that the accused has engaged in discreditable conduct. The two areas concern evidence of excessive, extreme corporal punishment and sexual offending concerning the other complainant. The complainants, as well as their brother (S) gave evidence of corporal punishments and S also gave evidence of observed allegedly sexual conduct towards his sisters.
Preliminary issues: Cross Admissibility and Discreditable Uncharged Conduct
The prosecution contends that the evidence of each complainant is cross admissible on the other count. The accused does not dispute the cross admissibility of the evidence of corporal punishment nor that the evidence given by one complainant may be admissible in respect of the charge in respect of another.
The evidence led by the prosecution includes evidence of Discreditable Conduct. The admissibility of this evidence is determined by Division 3 of the Evidence Act 1929 (Evidence Act) which provides:
Division 3—Admissibility of evidence showing discreditable conduct or disposition
34O—Application of Division
(1)This Division applies to the trial of a charge of an offence and prevails over any relevant common law rule of admissibility of evidence to the extent of any inconsistency.
(2) This Division does not apply to—
(a) evidence adduced pursuant to section 18; or
(b)evidence of the character, reputation, conduct or disposition of a person as a fact in issue.
34P—Evidence of discreditable conduct
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b) is inadmissible for that purpose (impermissible use); and
(c) subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b)in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4)Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5) The court may, if it thinks fit, dispense with the requirement in subsection (4).
34Q—Use of evidence for other purposes
Evidence that under this Division is not admissible for 1 use must not be used in that way even if it is relevant and admissible for another use.34R—Trial directions
(1)If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
(2)If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.
The provisions were considered by the Court of Criminal Appeal in a number of decisions. In particular, I have had regard to R v Maiolo (No. 2)[5]; R v C, CA[6] and R v MJJ; R v CJN.[7]
[5] (2013) 117 SASR 1.
[6] [2013] SASCFC 137.
[7] (2013) 117 SASR 81.
In R v MJJ; R v CJN Justice Vanstone provided a helpful analysis of the effect of the amendments to the Evidence Act including s34P:
241.The structure of s 34P bears some resemblance to the well known statement of principle by Lord Herschell in Makin v Attorney General (NSW) (1893) 14 LR (NSW) 548 at 551-552. Lord Herschell commenced with a statement to the effect that evidence which is generally discreditable is inadmissible. He went on to say that such evidence might yet be admissible if relevant to an issue before the jury. Section 34P(1) and (2) follow the same formula. His Lordship said:
It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence is adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.
242.Section 34P(2) divides discreditable evidence into two categories. Section 34P(2)(a) deals with non propensity uses. Examples of these uses are seen in cases such as Wilson v The Queen (1970) 123 CLR 334 (evidence of marital discord prior to wife’s death by firearm); R v Tucker (1984) 36 SASR 135 (proof of theft of firearm later used to shoot victim as evidence of premeditation); R v Nieterink (1999) 76 SASR 56 (proof of uncharged acts of sexual nature not used to prove sexual interest). This last has often been referred to as relationship evidence. It introduces what I see as a requirement more demanding than the common law, namely that the probative value of the evidence “substantially outweighs any prejudicial effect”. Formerly, such evidence was admissible, but fell to be excluded as a matter of discretion if its prejudicial effect was adjudged to outweigh its probative value.
243.Propensity or disposition evidence is dealt with in s 34P(2)(b). I would assess the qualitative requirement there provided as being comparable to the common law as it stood prior to Hoch v The Queen (1988) 165 CLR 292. The degree of probative force required at common law has been described as “a really material bearing on the issues to be decided”: Director of Public Prosecutions (UK) v Boardman [1975] AC 421 at 439 per Lord Morris of Borth-y-Gest and such that to exclude the evidence would be “an affront to common sense”: Boardman at 456 per Lord Cross of Chelsea; and as such that it “clearly transcends its merely prejudicial effect”: Perry v The Queen (1982) 150 CLR 580 at 609 per Brennan J; Phillips v The Queen (2006) 225 CLR 303 at 320 per the court.
244.In my opinion the changes made by ss 34P, 34Q, 34R and 34S may be briefly stated as follows:
1. The test for admissibility established in Hoch that propensity evidence, if accepted, bear no reasonable explanation other than the inculpation of the accused person and the offence charged no longer applies — see s 34S(a);
2. The possibility of collusion or concoction by the witnesses attesting to the similar events is no longer a ground for exclusion — see s 34S(b);
3. The exclusionary rule which formerly regulated the admission of propensity or disposition evidence is now extended so that it applies to discreditable evidence introduced for non propensity purposes — see s 34P(2)(a). For such evidence to be admissible the judge must now be satisfied that the probative value of such evidence “substantially outweighs any prejudicial effect it may have on the defendant”;
4. The criterion for admission of evidence tendered to demonstrate a particular propensity or disposition is now that the evidence has “strong probative value having regard to the particular issue or issues arising at trial” — see s 34P(2)(b).
245. Section 34Q is a codification of a common law rule.
246.Again, s 34R gives statutory effect to rules of long-standing. Section 34R(2) embodies the rule in Shepherd v The Queen (1990) 170 CLR 573.
247.It is always for the party tendering evidence to demonstrate that it is relevant and admissible, and, if so, that it should not be excluded in the exercise of the general discretion. I do not see s 34P as casting a new onus on the tendering party or otherwise as altering that position.
248.The approach to be taken by a judge faced with an application to introduce evidence of discreditable conduct is, in my view, much as it was before s 34P was introduced. As before, the judge will need to understand for what purpose or purposes the evidence is tendered and, in particular, whether it is proposed to rely on propensity reasoning. It will be necessary for the judge to identify the permissible and impermissible uses of the evidence. It is be hoped that this task will be assisted by the requirement found in s 34P(4) that the party seeking to lead the evidence will give notice of it in accordance with the rules of court with some particularity and will outline the permissible uses.
249.Once the permissible use or uses of the evidence are identified and it is determined whether s 34P(2)(a) or 34P(2)(b) is invoked, then the probative value of the evidence must be assessed in accordance with the applicable criterion. If s 34P(2)(a) is applicable then the judge will need to consider whether the permissible use or uses can be kept sufficiently separate and distinct from the impermissible use, as required by s 34P(3).
250.Next there is the question of the general or residual discretion. I take the use of the expression “may be admitted” in the opening words of s 34P(2) to indicate that the legislature means to preserve in the judge the common law discretion to exclude otherwise admissible evidence. It is hard to see that this general discretion would have a real role in relation to non propensity evidence, which would already have been adjudged to substantially outweigh any prejudicial effect. However, it is not impossible to see that the discretion could come into play in relation to evidence which had been found to qualify under s 34P(2)(b). I am reminded that Brennan J expressed the view in Harriman v The Queen (1989) 167 CLR 590 at 594 that the continued existence of the general discretion to exclude admissible evidence of predisposition should be acknowledged. On the other hand Heydon J in BBH v The Queen (2012) 245 CLR 499 at [111] took the position that it was “highly questionable” whether there was any room for discretionary exclusion if the Pfennig test for admissibility had been satisfied.[8]
[8] (2013) 117 SASR 81 at [241]-[250].
The Chief Justice agreed with the observations of Vanstone J.[9] He identified the impermissible use of discreditable conduct as using it as a basis for drawing an inference of guilt from evidence which has no relevant connection with the issues other than to demonstrate that the accused has engaged in other past discreditable conduct. In the context of evidence admitted pursuant to s34P(2)(b) he stressed the necessity to identify the particular fact in issue and then ‘to consider how, if at all, this discreditable conduct evidence circumstantially increases, as a matter of human experience, the probability of the existence of that fact’.[10] He stressed that the probative value of the evidence is to be determined in light of the evidence as a whole.
[9] Ibid at [12]-[19].
[10] Ibid, at [19].
The question of whether evidence sought to be led pursuant to s34P(2)(a) is admissible and has the requisite probative weight is determined by legal principle and in particular, the relevance principle bearing in mind the evidence and legal issues arising at the trial.[11]
[11] Ibid, Kourakis CJ at [15], Vanstone J at [234]-[237].
R v MJJ; R v CJN concerned alleged sexual offences and offences of violence committed by parents against their children. At the trial evidence was led as to other sexual abuse and physical abuse of the children, abuse of CJN and that the children were poorly housed and fed. It was held on appeal that the evidence was properly admitted. It explained why a daughter had failed to complain earlier. It was also held that the evidence was admitted to rebut any inference that would ordinarily be drawn from the relationship of care between parent and child. Additionally, the court held that evidence of other sexual offending was capable of being used for the propensity purpose of establishing sexual attraction which circumstantially supported the direct evidence of the charged offences. The evidence, in its totality, disclosed a pervasive domestic environment of violence, abuse and deprivation which made it more probable, than would otherwise have been thought, that the accused committed the charged offences against his own children.[12]
[12] Ibid, Kourakis CJ at [12]-[44].
In R v MJJ; R v CJN the Chief Justice considered what is sometimes referred to as ‘relationship evidence’ and articulated why this type of evidence is probative and may outweigh the prejudicial effect of the discreditable conduct it reveals. He said:
44.The authorities referred to in [37]-[38] above show that the probative weight of what is sometimes referred to as “relationship evidence” has long been held to outweigh the prejudicial effect of the discreditable conduct it reveals. It does so because the evidence is specific to the relationship and patterns of conduct of the accused to the victim, and not to people generally. Evidence of the kind received in Hissey, Wilson, and Roach has strong probative value, because it is a matter of human experience that when abusive behaviours develop in close personal relationships, they generally persist. In this case, the relationship evidence extends to all members of the appellants’ family. It is also a matter of common experience that abusive conduct can affect a family as a whole and result in general dysfunction. Greater caution must be exercised when the discreditable conduct extends beyond the accused’s relationship with a single victim. However, the evidence in this case discloses close connections between the forms of abuse practised by the appellants against each of their children. It discloses such a deep-rooted breakdown of their sense of parental duty that it can be relied upon as showing the true terms on which the appellants and all of their children were living. If the evidence were accepted by the jury, it would cause them to give less, or no, weight to the parental relationship as a reason for thinking the offences improbable.
R v M, BJ[13] concerned three complainants; a daughter and two sons. The accused was the father and he was found guilty of persistent sexual exploitation of his daughter, assaults upon his daughter and a son and gross indecency involving showing his sons pornography. Evidence was led of many uncharged acts including acts of violence and showing pornography to the complainants.
[13] (2011) 110 SASR 1.
Vanstone J considered the effect of s278(2a) of the Criminal Law Consolidation Act 1935 (CLCA) (which came into effect on 23 November 2008 and is now repealed). The same changes are made by s34S of the Evidence Act and as has been observed[14] the remarks of Vanstone J apply with equal force today. After analysing the law with respect to admissibility of evidence of discreditable or bad character Vanstone J applied those principles to that case including the admissibility of other acts of violence:
35.The evidence of violence described by all three complainants, all uncharged in respect of D, was in my view admissible in relation to the sexual allegations made by each complainant. In other words, in considering the charges concerning any one complainant, evidence of violence suffered by, or observed by, that complainant was relevant and admissible. In respect of A there was a specific claim by her that she was frightened of her father. In her statement she also expressed fear on account of her mother, because the appellant expressed resentment about his wife’s presence impeding his activities with A, and because A had witnessed his violence towards her mother. Her fears could not but have been informed by violence she repeatedly witnessed to her brother C, and to a lesser extent to D and that she herself suffered. Further, I consider that this evidence was properly before the jury in respect of all the sexual charges. It tended to explain the way in which the appellant exerted control over his children, why they were compliant, in the case of the boys, in allowing him to show them pornography and to remain silent about it, and in his intrusion into their personal development with his own unhealthy and distorted interests. In the case of A, the evidence of violence in the household tended to demonstrate how the appellant could maintain such an exploitative and sometimes violent relationship with his daughter without fear of her exposing his activities. In respect of all three complainants it would be open to the jury to conclude that the assaults committed on each in the presence of one or both of the others had the effect of subjugating, controlling and conditioning each individual. What each child saw of the violence shown by the appellant to the other children was directly relevant to explain why that child tolerated violence and sexual dealings without resistance or complaint.
36.Evidence of this type has some parallels with the evidence described as “relationship evidence” by Mullighan J in Liddy’s case (at [95]). Having referred to general observations of Doyle CJ in R v Nieterink (1999) 76 SASR 56 at 65 regarding the disparate ways in which evidence of other offending could be relevant and admissible apart from as similar fact evidence, his Honour said this (at [98]):
Furthermore, the evidence in the present case could show that the appellant developed over time a relationship with the complainants including sexual activities and talk involving him which they regarded as normal and unexceptional and would render the possibility of disclosure or discovery by others unlikely. The evidence is capable of establishing that the appellant indoctrinated and conditioned the boys to be accepting of such behaviour and to participate in it unquestioningly and enthusiastically. It may be readily seen that the purpose of the evidence was relevant to issues in the case, was strongly probative and went well beyond mere evidence of propensity.
By similar process of reasoning, I would not categorise the above uses of the evidence of violence as including a similar fact or propensity use. The evidence provided a context in which the sexual offending in relation to each of the three children occurred, but inasmuch as the violence appeared to be spontaneous and a function of ill temper, I would not say that evidence going to any assault charge reached the high degree of probative value required to render it capable of use as similar fact evidence in respect of the assaults upon the other children. Nevertheless, it remains cross-admissible for purposes related to relationship and subjugation.[15]
[14] R v March [2014] SASCFC 54, per Kelly J at [21].
[15] ((2011) 110 SASR 1 at [35]-[36].
R v March[16] concerned charges of sexual assault upon the appellant’s step-granddaughters (two complainants) and the admissibility of evidence of another granddaughter as to admitted acts of indecent assault upon her by the appellant. Kelly J (with whom Kourakis CJ and Sulan J agreed) considered the admissibility of the discreditable conduct evidence:
26.It is my view that the facts of this case are such as to justify the admission of the evidence of VI, V2 and X on such a basis as identified by Peek J in Maiolo (No 2). The basis for cross-admissibility advanced by the prosecution at trial was the improbability of V1, V2 and X independently imagining or concocting stories with a high degree of similarity of detail. That is so, however in my view, another proper basis for admission of the evidence was for a permissible propensity use; not a propensity to commit this general type of crime but a propensity to commit a highly specific type of crime, namely to commit sexual assaults of a very similar nature on each complainant in a brazen fashion where detection was seemingly probable and when access to the child was facilitated by the appellant’s status of grandparent or step-grandparent of the respective victims.
27.The appellant submitted that the evidence of X was not admissible and ought not to have been admitted into evidence at the trial in respect of the counts alleged against V1 and V2.
28.Because, in my view the evidence of X was properly admissible for a propensity use, the admissibility of that evidence in the trial depended on whether X’s evidence had “strong probative value” having regard to the accounts given by either V1 or V2 so as to satisfy the test in s 34P(2) of the Evidence Act. That section provides:
…
29.In my view X’s evidence did satisfy that test. Absent collusion, the evidence sought to be led in this case did have strong probative value as an item of circumstantial evidence. Moreover, the degree of probative value was such that it clearly transcended any prejudice it might cause the appellant…
[16] [2014] SASCFC 54.
Kelly J then analysed the features of the appellant’s behaviour which demonstrated an underlying unity.
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 cross-admissible at the trial are directly relevant to the issues which arise here.
36.This 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 or 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.
Kelly J also referred[17] (with approval) to R v C, CA[18] wherein the Chief Justice discussed s34P(3) Evidence Act[19] and the permissible and impermissible uses (forms of reasoning) of discreditable conduct evidence. The Chief Justice said:
76.The mischief to which s 34P(3) of the Evidence Act is directed is the risk that the tribunal of fact, whether a judge or jury, will be distracted by the impermissible use of evidence if that use cannot be sufficiently differentiated from its permissible use. The uses referred to are forms of reasoning. Section 34P of the Evidence Act prohibits reasoning that a person who has engaged in discreditable conduct is, by reason of that bare fact alone, more likely than not to have committed the offence. Put another way, it is impermissible to reason that a person who has engaged in any form of discreditable conduct is likely to have a predisposition to commit the crime charged whether or not, as a matter of human experience, there is any probative connection between the conduct and the crime by way of predisposition or proclivity. I will refer to the impermissible reasoning as “bad person” reasoning.
77.The permissible forms of reasoning allowed by s 34P of the Evidence Act are, speaking broadly, twofold. First, if the discreditable conduct evidence is strongly probative of the existence of a behavioural proclivity to engage in conduct of the kind charged whenever an opportunity arises, it is permissible to use that evidence as an item of circumstantial evidence indicating guilt. The second form of reasoning is improbability reasoning which has a probative force independent of any proclivity. The improbability can arise from a wide range of circumstances and in many different ways. Common examples include “cauliflower ear” similarity in modus operandi, coincidental presence or involvement in the place or circumstances of the crime for which an innocent explanation is improbable, and the improbability of complainants independently fabricating similar accounts.
[17] Ibid at [23].
[18] [2013] SASCFC 137.
[19] R v C, CA, ibid at [76]-[77].
Kelly J expressed the view that the statements by the Supreme Court in R v M, BJ, R v Maiolo (No 2) and R v C, CA ‘represent a distillation of the principles to be applied in a trial where a number of offences of a sexual nature are charged on one Information in relation to separate complainants’.[20]
[20] R v March, ibid at [24].
Prosecution case as to permissible uses of discreditable conduct evidence
The prosecution filed a Notice of Intention by the Director of Public Prosecutions to Adduce Evidence of Discreditable Conduct dated 26 September 2013. The conduct particularised in the notice included:
·the nakedness of the accused, Z and R;
·that KY would regularly bathe with Z and R and on occasions both of them;
·that KY performed uncharged sexual acts on Z and R; and
·that during punishments or discipline Z and R were frequently required to be naked or partially undressed.
There was no reference to corporal punishment inflected upon Z and R.
The Brief Outline of Submissions Relating to Proposed Evidence of Discreditable Conduct[21] refers to the evidence of corporal punishment when describing the evidence relied upon for a permissible use that relies on propensity or disposition as circumstantial evidence of a fact in issue.
[21] Filed on behalf of the DPP, dated 28 September 2014. See also Brief Outline of Closing Submissions filed on behalf of the DPP, dated 16 September 2014.
The prosecution submitted that the discreditable conduct demonstrated a strong sexual interest in R and Z disclosing a proclivity on KY’s part to abuse the access he had to his step-daughters in order to satisfy his paedophilic desires. The prosecution relied in particular on:
·Disciplining them in a ritualised way that had sexual context;
·Bathing with them in a way that demonstrated his sexual interest including uncharged sexual acts whilst bathing;
·Requiring them to perform chores whilst naked which could only be explained by reason of a sexual attraction to them;
·Walking around in the house whilst naked, creating a sexualised atmosphere in the household.
The prosecution submitted that this conduct, whether considered individually or in combination, is very distinctive and unusual.
The prosecution stressed that the proposed propensity use of the evidence is not based on discreditable conduct of itself and/or that the accused is more likely to have committed the offence because he has engaged in discreditable conduct but rather that the inference to be drawn from the conduct is a paedophilic sexual attraction to R and Z. The prosecution submitted that the paedophilic sexual attraction of the accused was relevant to the specific charged acts because it was evidence that the accused had an embedded proclivity to engage in sexual relations of the kind described by R and Z.
It was submitted by the prosecution that the evidence was also admissible for a separate permissible use pursuant to s34P(2)(a) to show that KY exercised control, dominance and subjugation over his step-children and wife and the lengths to which he went to do so. The prosecution submitted that the evidence may be used to explain how KY came to be in a position to commit the charged acts by creating the sexualised atmosphere in the house, the power imbalance in the household, why the mother of the children did not intervene and why the children did not protest or complain. The prosecution also says that this evidence contrasts the relationship that KY had with R and Z and the relationship he had with S (his step-son) which demonstrates his sexual interest in the girls but not in his step-son.
In my view there is an additional non-propensity use of this evidence of the discreditable conduct. The evidence of the punishments and sexual touching by the witnesses date back to when they were very young and they described frequently occurring, distressing, traumatic events. Those matters are relevant when considering the reliability and accuracy of the evidence of these witnesses as to the events. The circumstances may explain difficulties in recollection.
During oral submissions the prosecution referred to another permissible propensity use of the discreditable conduct evidence relating to punishments[22] which is the improbability of similar accounts. That submission particularly related to the extreme forms of punishment described by the three children. R, Z and S describe similar punishments and it was submitted that it is inherently improbable that they would describe very similar punishments if they had not in fact occurred. It is acknowledged that collusion or contamination could explain this evidence.
[22] T633.
The defence submits that the improbability of similar account reasoning must exclude the possibility of independent concoction and collusion.
As I understand the defence submissions, there is no challenge to the admissibility of the discreditable conduct for the non-propensity purposes but the defence does take issue about whether the discreditable conduct evidence is admissible to prove the specific propensity of paedophilic interest in R and Z. As I understand the defence submission, it is to the effect that the discreditable conduct does not prove this specific paedophilic interest but rather the charges themselves. The defence also points to the need to exclude the possibility of collusion or independent concoction and it is said that cannot be done in this case.
In my view, the discreditable conduct is admissible for the specific propensity purposes identified. I am satisfied that the probative value of this evidence, if admitted for a permissible use, substantially outweighs any prejudicial effect it may have on the defendant and that it has a strong probative value having regard to the issues at this trial. I have had regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose. In my view the impermissible use can be kept sufficiently separate.
Nonetheless, I have decided that whilst there are permissible uses of the discreditable sexual conduct described by Z in respect of the second count concerning R, for reasons explained hereafter I am not otherwise satisfied about the credibility and reliability of Z, and I will not use the evidence in this way.
The evidence of discreditable conduct in relation to extreme corporal punishment is important evidence relevant to both charges and in my view is also properly admitted for a non propensity purpose pursuant to s34P(2)(a) of the Evidence Act. The evidence of the violence inflicted upon Z, R and S is relevant to prove the atmosphere of control and compliance within the household, the progression of touching (to include genitals during punishment), to explain lack of complaint, the brazen nature of the sexual offending and how KY could maintain a sexually exploitative relationship without fear of exposure.
Forensic disadvantage
The allegations in respect of each complainant concern conduct which occurred 26-36 years ago. It is agreed that the matter was first reported to NSW Police in October 2004.[23] There is no evidence as to when the accused was charged or became aware of the allegations. There is a significant forensic disadvantage to the accused by reason of the delay.
[23] P19.
Section 34CB of the Evidence Act provides:
34CB—Direction relating to delay where defendant forensically disadvantaged
(1) A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
Note—
See Longman v The Queen (1989) 168 CLR 79(2) If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a) explain to the jury the nature of the forensic disadvantage; and
(b)direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3) An explanation or direction under subsection (2) may not take the form of a warning and—
(a) must be specific to the circumstances of the particular case; and
(b)must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.
Section 34CB(2) of the Evidence Act refers to the requirement that directions must be given to a jury as to the nature of forensic disadvantage and direct the jury to take forensic disadvantage into account when scrutinising the evidence.
Section 34CB of the Evidence Act does not apply to trial by judge alone.[24] I am not required to include within my reasons a direction of the kind that s34CB prescribes. However, where delay is a material issue in a trial by judge alone, the reasons for the verdict must adequately deal with the issue. Accordingly, I should give close consideration to the issue of forensic disadvantage, the nature of the alleged disadvantage and whether this bears upon the proof that the prosecution has proved its case beyond reasonable doubt.
[24] R v Bakhuis (2012) 112 SASR 536 at [57].
In this case there has been a significant delay. The delay has resulted in a significant forensic disadvantage to the accused. I infer that the accused has had difficulty challenging and responding to allegations about events that occurred so long ago. The delay has led to the complainants and other witnesses being unable to remember precise times and dates and many other matters of detail. The delay has disadvantaged the accused because there is a reduced ability to test the complainants’ accounts in detail. If there had been prompt complaint of all or some of the offending the accused and/or other witnesses may have been in a position to remember back to a particular time and recall those circumstances. The accused may have been able to point to other persons or other evidence which would have shed light on the incident or whether the incident occurred as described by the relevant complainant.
The absence of prompt complaint also means that there is no medical or other scientific evidence referrable to the complainants’ account of events. The complainants describe digital and penile penetration (to some extent) which if true, may have yielded medical opinion or forensic material which may affect the reliability and credibility of the allegations. The absence of medical or scientific evidence where there was prompt complaint by very young complainants and where there had been examinations shortly after the alleged incident may have been of considerable importance at the trial. Another matter is the absence of medical or other observation of bruising or marks arising from corporal punishment. Promptly made complaint may have led to witnesses as to the lack of marks on the complainants; a matter very relevant to credit.
I have had regard to the issue of forensic disadvantage when I have scrutinised the evidence of each of the complainants and I have also considered whether there was other evidence that may have been available to assist in the proof or otherwise of the matter. I note that in the written submissions of 21 October 2014, the defence list a number of areas of evidence or topics upon which records and witnesses are no longer available. Eventually the court was informed that the inability of the defence to obtain the listed evidence was agreed by the prosecution. [25] However it is difficult to assess the relevance of some of these matters given that no evidence was led from the defence. That is not a criticism of the defence but a factual observation. For example, the relevance of a motor vehicle accident involving KY in 1983, the relevance of the death of the biological father of the complainants, the relevance of when machinery and a generator was hired for Waterloo Corner is not evident. Whatever the source of the evidence, the allegedly missing or absent material must have some relevance to the matters in issue.
[25] See paragraph 2(b), page 2 of the written Outline of Submissions of Mr I White sent 21 October 2014 and Further Submissions on s34CB of Mr I White dated and sent 24 February 2015. See also Further Prosecution Submission in Response to Defence Outline of Closing Submissions dated 26 February 2015.
I set out the list of topics whereby the defence says significant forensic disadvantage has occurred:
‘b) The defence state that the significant forensic disadvantage has occurred on these topics:
I) White Cliffs – KY’s father, [VB] and Father’s partner, [GF], are deceased; potential witnesses at Yunta such as petrol station records and/or employees.
II) Waterloo Corner records and verification of when and what machinery was hired; generator purchase; council and utilities records of connection and use. Only records to assist Court are stated in Agreed Facts paragraph 3. Availability to inspect for confirmation of features of property.
III) Mile End availability to inspect for confirmation of features of property including to supplement defence exhibits showing backyard.
IV) Accused’s employment records.
V) [DY’s] employment records.
VI) [SS], neighbour at Mile End, is deceased [Police BATTY Statement 8 January 2014 pg2 – to be agreed].
VII) Incomplete school records and therefore availability to identify relevant teachers/carers as potential witnesses.
VIII) [JA], the three step-children’s biological father, is deceased.
IX) All witnesses, including both complainants and any other civilian witness, who may have been able to provide contemporaneous statements of their observations.
X) Motor vehicle accident involving [KY] in 1983.
XI) Medical evidence relating to [KY] and/or the three step-children.
XII) Lack of Residential Tenancies Board and SA Housing records.[26]
[26] Closing Address final version sent 21 October 2014.
In this trial most (not all) of the sexual touching alleged is said to have occurred within the family home. The dates and the times of day are not specified by the complainants. It is difficult to understand how some of the records listed by the defence could have assisted in respect of particular testing of the prosecution case. It is more significant that the forensic disadvantage suffered by the accused relates to the absence of contemporaneous complaint and detailed allegations by the complainants such that the defence has been deprived of the opportunity to adequately test the complainants’ evidence having regard to statements made when the events were said to be fresh in their memory.
The changes in the Mile End and Waterloo Corner properties mean that the state of the properties at the time of the alleged offending cannot be proved by examination of those premises. The state of the shed and whether it had a fitted in or lockable door (a relevant issue) cannot be established by observation of the door although some people may be able to give oral evidence about this issue. Some records were available about the floor plans.[27]
[27] See P1, P2.
I can and do have regard to the significant forensic disadvantage that the accused has as a result of not learning of the details of the accusations in a timely fashion. As a result of the absence of observations and/or medical and scientific evidence which may have been forthcoming if there was prompt complaint (that evidence may be that nothing was obtained or observed; important evidence in respect of alleged punishment or penetrative intercourse upon a young child) there has been a consequent effect on the ability of the defence to test and rebut the allegations of the prosecution witnesses. I agree that the disadvantage is likely to include an inability to obtain records which may have assisted in the defence of the matter and which may have been relevant to the credibility of the complainants.
In R v Cassebohm[28] Doyle CJ considered the new s34CB. His Honour there considered the directions to a jury. I am of the view that I must give consideration to the same issues which would be the subject of direction to a jury. At paragraphs 30 to 32 Doyle CJ said:
30.It will not be sufficient for the trial judge to identify a theoretical or hypothetical or assumed disadvantage to the accused. On the other hand, if it were necessary for the accused to satisfy the judge of an actual and specific disadvantage, the provision would offer little protection to a defendant. One can rarely be sure what a deceased witness might have said, one can rarely know what a person might have remembered 20 years ago but no longer remembers, one can never know what is in a document now lost. I consider that it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that that is so. For example, an accused might suffer from a significant impairment of memory attributable to illness that has occurred in the time that has elapsed between the alleged offence and the trial. Who can say what the accused would have remembered if his memory had not been impaired by illness? But I would accept that a defendant in such a position is at a forensic disadvantage, because the defendant no longer has the benefit of a memory unimpaired by illness. I should add that in this example I am postulating a significant memory impairment. Similarly, after many years have passed it is not difficult to conclude that the normal memory loss that occurs gives rise to a significant forensic disadvantage. Of course, in a particular case there might be no sign of memory loss, or the case might be one in which the accused’s memory is not a relevant matter. The judge will have to consider each of the aspects of forensic disadvantage identified by McHugh J and by Crennan J: that is, the difficulty of testing the complainant’s evidence, and the difficulty of marshalling a defence. Other circumstances, not attributable to the passage of time, may well need to be considered.
31.If the judge is satisfied that the defendant has suffered a significant forensic disadvantage attributable to the passage of time, the judge must then give the jury an appropriate direction.
32.The judge must explain to the jury the nature of the forensic disadvantage: s 34CB(2)(a). The judge must do so making specific reference to the circumstances of the particular case: s 34CB(3)(a). It will not be sufficient to talk about the effects of delay in general terms, nor even about adverse effects on memory in general terms. The judge must tie the direction carefully to the particular circumstances. The judge must avoid the phrase referred to in s 34CB(3)(b).
[28] (2011) 109 SASR 465 at 469-476.
The task of identifying disadvantage to the accused is more difficult in a case where the accused did not give or call evidence. It is more difficult to assess the extent of disadvantage occasioned generally and having regard to many of the records listed by the defence. I do not think that Doyle CJ meant that a record no longer available which has no apparent relevance to the matters in issue should be considered. There is a limit to how much weight can be accorded to some of the matters listed by the defence.[29] Nonetheless the forensic disadvantage which I have identified and the lapse of time is of such significance that it is important that I scrutinise the evidence of each of the complainants in great detail having regard to that disadvantage and the potential loss of other records which may have assisted the defence.
[29] See also R v T, WA [2014] SASCFC 3 at [18]-[36].
Consideration of the evidence
I turn to a detailed consideration of the evidence at the trial. I have summarized the examination in chief of R and Z in order to give a framework to the consideration of cross examination and the defence submissions and criticisms of the evidence of R and Z. I also refer to the evidence of S and Mr Hazledine.
Whilst evidence between the charges may be cross-admissible and there was evidence from S concerning both R and Z, I must consider each of the charges separately. They do not ‘stand and fall together’. I think that there are significant differences between the credibility and reliability of Z and R. There is also additional evidence supporting R’s evidence (the alleged admission to Mr Hazledine).
Examination in chief of R
R recalled that she was seven when the accused married her mother and that they were married in the backyard of the Hughes Street house.[30] She said that KY and DY had just become members of the Revival Centre of Australia Church.[31]
[30] Exhibit P1 - Plan of Hughes Street house.
[31] T42.
The first incident R described occurred before her mother and KY were married.[32] R said at that time she would have been five or six. R said that the children were lined up facing away from the window in the kitchen at Hughes Street and instructed to take their clothes off. R described her mother as being distressed and agitated and asking KY not to hurt her kids. R said she could not remember whether S was undressed but that she and Z were ordered to strip naked. R said that her mother was also ordered to strip, which she did, and that they watched their mother being strapped by KY 10 times.[33] R said that KY made them stand on stools, and told them to jump up and down whilst on the stools, and that if they fell off they would be strapped. R said that she remembered S falling off, crying, and that they were told to put their hands in the air above their body whilst jumping. R said her mother was interjecting all the way through and KY told her to ‘back off’ or ‘shut up’. R said that the children were struck before their mother was. R said KY belted S first because he fell off the stool, and KY ordered their mother to hold S still while KY belted him with a stick.[34]
[32] T43.
[33] T45.
[34] T48 and T49.
R said she was standing on the floor when she was belted. She didn’t recall falling off the stool. R was then required to bend over from her waist with her hands over her head and she was hit on the buttocks with a stick. Whilst describing the stick, R corrected herself and said that it was not a stick, it was a belt.
R demonstrated how she and the other children were made to bend over with their elbows and hands behind their head keeping a flat, horizontal back.[35] R described being struck brutally; that there was blood and by the time they were made to watch their mother being struck they were bruised, bloody and absolutely traumatised.[36] R said that her mother was also told to bend over at the waist after she had stripped off. R said that KY counted as he struck her mother. R said that this was the last time that her mother tried to intervene in any substantial way other than saying, ‘KY please don’t do this’.[37] R said that on future occasions her mother would urge the children to do as KY told them.
[35] T50.
[36] T51.
[37] T52 and T53.
R said that when they were living at Hughes Street the children would be punished on other occasions for things like leaving the lights on, not telling the truth, or demanding that someone own up to whatever the problem was. She said it was never articulated as to why they were to be brutalised and tortured. R said the punishments occurred ‘systematically, every couple of weeks, maybe once a month’ and then there would be a period where nothing would happen and that she would be in fear. R said sometimes they were punished for falling asleep in church meetings.[38]
[38] T54.
R said two names were given to the punishments administered by the accused; ‘Wuthering Heights’ and ‘Scarecrow’.[39] R described ‘Wuthering Heights’ as stripping off her clothes, bending over from the waist so that her back was horizontal, and putting her hands behind her head and staying in that position for an hour at a time. She said that she would be blindfolded as well. She said KY referred to this punishment as ‘Wuthering Heights’; R said that she didn’t quite understand why it was named that. R said she was six or seven years old when this form of punishment started. R did not recall whether the first incident when she was beaten and observed her mother being beaten was an occasion when ‘Wuthering Heights’ was referred to.
[39] T55.
R said that during ‘Wuthering Heights’ if she moved from the position which she was required to hold, she would be belted or struck with a stick 10 times. KY would count out the blows and if she flinched he would belt her another 10 times.[40] R said she was blindfolded and that the accused prodded the stick into her labia. R said that Z and S were also subjected to this treatment but they were usually disciplined separately. R said she didn’t recall the first time she experienced ‘Wuthering Heights’. She said it happened so many times; at least once a week or every couple of weeks.[41] R said she recalled this punishment happening in the kitchen, in the area near the window. R said she also recalled having to do it with her sister or her brother at some stage but did not remember why they had done it together. She said that it was an excruciating one hour punishment which sometimes extended beyond that length of time. She thought it happened in the meals area, although she had a memory of it happening to her brother outside. She referred to a mound in the backyard.[42]
[40] T56 and T57.
[41] T57.
[42] T59.
R said that this punishment (‘Wuthering Heights’) always involved being struck and a stick being inserted into her labia. She said KY also put spit on his fingers and rubbed her labia in preparation to her being struck. She recalled him spitting in his hands and rubbing it on her bottom and labia.
R said that her memory was of being blindfolded; she didn’t remember not having a blindfold. She went on to say that KY might not have initially blindfolded her but as she got a bit older he started using a blindfold.[43] She said that whilst she was blindfolded she had the sense of the accused coming in and out of the room. She described him rubbing the stick against her behind or hearing him spitting on his hand. R said that KY would spit on his hand when he touched her genitals.
[43] T60.
R said that ‘Wuthering Heights’ continued until they moved to Waterloo Corner.[44] Her recollection was that her mother told the accused that it (‘Wuthering Heights’) should stop because they were ‘developing’ and it was time for him to stop doing it.[45] R said she was always naked during ‘Wuthering Heights’. She said she recalled she was partially clothed during the ‘Scarecrow’.[46]
[44] T60 and T61.
[45] T61.
[46] T62.
R said there was always touching of her labia during ‘Wuthering Heights’; she did not recall it happening without being sexually interfered with. She said that KY’s fingers were inserted into her labia or that he used a stick. She said that sometimes it would happen once a week, sometimes it would happen every fortnight. She said it was a regular occurrence, and if it wasn’t happening to her then it was happening to her brother and sister. She said she remembered it stopping after she was 10 but she was unclear what age she was when it stopped. They were still living in Hughes Street when it ceased.[47]
[47] T63 and T64.
R later said that at the conclusion of the ‘Wuthering Heights’ punishment KY would kiss her bottom, which would indicate to her that it was the end of the session.[48]
[48] T69.
R also described the ‘Scarecrow’. She said she was aged 10 when this punishment started. R described KY making the children stand in one spot with their arms stretched out, stretched horizontally, and they would be required to swivel their body around. She said that the accused gave the name to the punishment. R said the first time she experienced it was when her younger brother, J, was born and she was about nine or 10 and it happened in the lounge room. She thought that her mother might have been in hospital at the time.[49] R described the children being told to put arms out and pretend they were a scarecrow and swivel the body whilst standing with the mouth open, and to do this for an hour. She said they were traumatised and crying. R demonstrated that her head had to remain still and her body swivelled.[50] Sometimes she had this punishment on her own. She could not recall the reason or aggravation which caused KY to require it.
[49] T64.
[50] T65.
R said that she was clothed during ‘Scarecrow’ but within, ‘like a six month frame’, it progressed into telling her to take her clothes off and her mother protested but within a very short time she was told to undress again. R said she recalled it happening in daytime particularly on the weekend. R recalled her mother was not there the first time.[51]
[51] T66.
R also described an incident where she was dragged down the hallway and placed in the shed outside the back of the house (which was marked on the Exhibit P1R). She described the shed as having a dirt floor and did not recall whether there was a light. She said she was thrown into the shed naked and was locked in. She was 12. She could not recall how long she was in the shed. It felt like a long time. It was light when she went in and dark when she got out.[52] R said that prior to her being locked in the shed she was told to strip off, she was told to bend over and she was struck 10 times. She said she could not stand still because it was painful so KY dropped the belt, grabbed her by the hair, and dragged her out of the lounge room, down the hallway, out of the kitchen door and threw her in the shed. R said this incident occurred after a friend was staying over at the house. There had been an argument between her mother and the accused as to why that friend had been allowed to stay over.[53]
[52] T71 and T72.
[53] T73 and T74.
R said that it was not common that KY lost his temper but if he did, extra things would happen. She described an occasion when KY lost his temper and that she was ordered to hold down S’s legs whilst KY struck the soles of his feet 10 times. She said that the stick broke in half.[54]
[54] T72.
R said that KY sexually abused her in the bath. She said that she or Z had to sit with the accused in the bath and help him wash himself. The accused was naked in the bath. She was aged five when it first occurred.[55] She said this happened at least once a week and it stopped when they moved to Waterloo Corner. She thought it had stopped because her mother said they were growing pubic hair and the children were developing, growing breasts.[56]
[55] T75.
[56] T76.
R described bathing when she sat on top of KY’s groin area, she was astride and she was asked to hold onto his hips as he went under water to rinse his hair. She said his penis was erect and it was between her legs.[57] She was facing him. She said this happened every time she would have a bath with him. She also recalled soap being used and that he would wash her genital area and that she recalled that being a little painful because the soap caused irritation.[58]
[57] T77.
[58] T77 and T79.
R also recalled that when she was about five years, Z was in the bath with her as well as KY. She remembered that happening more than once. She remembered the two of them pouring water over him.[59] R said that her mother was aware of them bathing with the accused and that the bathroom door was open. R also recalled S being asked to sit on the stool and watch Z and herself in the bath with the accused. She thought she was just five or six years old when Z and she were in the bath with KY.[60]
[59] T79.
[60] T80.
R said that KY ‘always verbalised that he was the head of the house’.[61] He said that they must obey him. She heard this in conversations with their mother and also when KY spoke directly to her.[62] R said she did not believe that she had a voice, she had no rights and she had to do what she was told.
[61] T83.
[62] T82 and T83.
R also described doing outside chores as part of punishment. The children would be made to weed all day on a Saturday or Sunday at Hughes Street.[63]
[63] T84.
R said that when she was at school she was asked about bruises on her legs and behind her legs. She recalled being asked about this at Cowandilla School and at Sturt Street School. The bruises were caused by the beatings by the accused. She recalled a woman coming to the house and asking her mother about the bruising.[64]
[64] T85.
R described a particular incident of sexual touching connected with her ninth birthday (DOB 13 February 1973; ninth birthday 13 February 1982) and attending a Drive In theatre with the accused. No others went with them. She said that they saw the film ‘Star Trek’. She said that she woke up during the movie and KY’s hand was in her knickers and she felt his fingers inside her vagina;[65] inside the labia majora. She said she pushed or brushed his hand away and attempted to go back to sleep. R said that she had been to the Drive In with the family on other occasions but it was unusual to go by herself.[66]
[65] T89, T90.
[66] T88.
R described sexual touching when she was travelling with KY to visit his father at White Cliffs, New South Wales. R said she travelled with KY to White Cliffs on one occasion; just she and KY went. She also recalled other occasions when the family group went to White Cliffs. She said that Z went to White Cliffs with KY more than once; she didn’t know how often Z went to White Cliffs.
On the occasion that R went with KY to White Cliffs she was 12 years old, just starting high school. They left at night time and she was sitting in the front passenger seat of the white Monaro. She said that she fell asleep and woke whilst the car was in motion with KY’s hand down her pants trying to get into her labial area; she could not recall his fingers being inserted into her vagina. She recalled him having one hand on the steering wheel and his other hand ‘down my trackies’.[67]
[67] T92.
R said that there was another touching incident on this trip when they were at Yunta at a petrol stop. She said she woke up to find KY with his fingers inside of her, sticking his fingers in. She was lying on her side facing towards the window and he reached from behind her. She said the penetration was a deeper sensation than she had experienced before. She said that he told her to go back to sleep. She recalled that the car was parked in a carpark at the petrol station and that after he took his fingers out that he was filling petrol containers, getting petrol.[68]
[68] T93 and T94.
R also said that the touching that occurred whilst the car was moving occurred prior to them reaching Yunta.[69]
[69] T94.
R said that when she was 12 the family moved out of Hughes Street. At the time she was attending Mitcham Girls High School. The family moved to Supple Road Waterloo Corner, a 10 acre property. R said the sexual abuse escalated at Waterloo Corner. She said penetration started happening and that the accused started ‘having sex with her in her mother and KY’s bedroom’.
She said when she was about 13 she was asked to go and massage KY’s lower back. R said that when she was 14 it (massages) progressed to sexual intercourse.[70] (This term was used; the events described did not include full penetration of the vaginal canal.) She said that she was told to go and massage KY. She had massaged him previously, about six times.[71] She went into the room and he was lying face down with a white sheet over his lower back and he told her to ‘drop ‘em blossom’ which was her cue to take her knickers off. He told her to sit on his back and to give him a massage and he asked her to use Deep Heat and she sat astride him. She was naked. He turned over and she sat on top of his hips and on top of his penis. She said that he positioned his penis in her labia. He rotated his hips and she had the feeling of his penis nudging against her vagina. She did not recall his penis being fully erect. She described him as grinding her against him and his hips. She was told to get off and put her pants back on. She did not believe that he ejaculated. She said that her mother was in the room next door, the kitchen, and that her mother later went into the bedroom and she heard the sounds of the bed squeaking. R later acknowledged she believed that to be the sound of her mother and KY having sexual intercourse. R said that this incident happened in the afternoon, in day time.[72]
[70] T98.
[71] T98.
[72] T99-T102.
R said there were other occasions of sexual intercourse in circumstances like that first occasion.[73] R said that these acts of intercourse occurred more than ten times and she remembered it being in a period of over a couple of years, but could not remember how many times. R did not recall ever menstruating when intercourse occurred.[74] She said that this type of intercourse stopped when she was 15. She said that she assumed that cessation had something to do with her mother.[75]
[73] T103.
[74] T104.
[75] T105.
R said that there were fewer punishments for her at Waterloo Corner. She said that she was still required to strip naked and stand in front of her brothers to be humiliated. She said on one occasion she had to put on her bathers after school for two weeks because she had refused to show KY her new bathers when urged to by her mother. She was then 13 or 14.[76]
[76] T105.
R said she had a memory of being 15 or 16 and having to strip down and stand naked in front of her brothers, S and J (son of KY and DY). She did not think her mother was there.[77] R said that KY made her do the housework in her knickers every time she did the housework at Waterloo Corner. She was not allowed to wear a bra or a top and KY would sit, watching.[78]
[77] T106.
[78] T106, T107.
R said that whilst at Waterloo Corner, KY came into her bedroom and put his fingers down her pants. She said that her mother was away one night a week for signwriting training. The accused came into her room and put his hands down her pants; she could not recall his fingers penetrating her vagina but would just put his hand there near her genital area. She said she would stir and push his hand away and that she remembered him still being in the room, not doing anything to her and her sister was in the bottom bunk.[79]
[79] T107.
R recalled an occasion at Waterloo Corner where KY was sitting at the table in his jocks, walking around in his jocks, and she was told to give him a hug. He hugged her with his legs wide open. She said he also frequently pressed himself against her; he almost always had his jocks on but would touch her on the bum or press his penis into her. He would pull her into him.[80] He would use simulated sex motions and she was able to feel his penis.[81] She said this rubbing against her or pulling her into him occurred until she was about 16.[82]
[80] T108.
[81] T109.
[82] T110.
R described the last punishment that she recalled. This occurred at Waterloo Corner when KY alleged that someone had stolen some of his taxi ‘kitty’ money. At the time he was driving a taxi. R said that KY made her and Z strip off their clothes and stand in front of J and S for about an hour. That occurred in the living room.[83] She said at the time the boys were sitting down next to KY in his black recliner chair. She remembered sobbing and crying and asking ‘please don’t make me do this’.[84]
[83] T111.
[84] T112.
R said that Z, who was a little younger, left home before her, when she was 15. She went to live with a friend and her friend’s mother. R did not keep in touch with Z after she left.[85]
[85] T112-113, T121-122.
R said that she left Waterloo Corner when she was 17 in about July 1990. She had been bitten by a spider and pretended to KY and DY that poison used at the house caused her injury. She told them that she needed to go to her grandma’s house to get away from the poison. She went to live with her grandparents, her mother’s mother, at Glenelg. R said she left to live with her grandparents because she wanted to move away from the trauma of sexual, emotional and physical abuse that she had suffered since she was five years old. She said she could not see any other way out.[86]
[86] T118 - T120.
R was asked about contact with her mother and KY in the first year or so after she left home and she said that she didn’t have contact with KY at that stage and didn’t recall any contact with her mother until her younger brother, P was born.[87]
[87] T121.
Evidence in chief of Z
Z is the younger sister of R. She was born on 21 May 1974. Z recalled moving into Hughes Street with her mother, sister and brother and that KY came to live with them.[88]
[88] T240 - T241.
Z said that one day she came home from school and was told by KY that her name was to be changed to ‘L’. She said that KY told her this and that her previous name was stupid. Z said she was told that her name was to be ‘L’ because it was the name of the ‘love of his life’.[89]
[89] T245.
Z said her first memory of KY was him dragging R down the hallway by the hair. She said at that time she was four and a half years old. She said KY dragged R down the hallway into one of the bedrooms.[90] She described her sister screaming and that her sister was dressed.[91]
[90] T244 - T245.
[91] T246.
Z said that KY was responsible for disciplining the children. She described a punishment when DY and KY took her into their bedroom.[92] Z thought she had left a light on but she could not recall exactly why she was in trouble. She said she was wearing shorts, a T-shirt and knickers. Z was told to take her clothes off. Her mother also told her to take her clothes off and to do what KY said. Z said she became very distressed and would not stay still. She was terrified of KY because he was cracking his belt. Z said she was made to lie face down and her mother assisted by trying to restrain her legs. KY told her mother to hold her still. She said her mother could not restrain her so her mother got two silk scarves and tied Z, one hand to either side of the bed. Z said her mother obtained the scarves from a drawer next to her bed. Z said her mother was instructed to get some margarine and she left the room to do so. Her mother was then told by KY to rub it all over Z which she did. She said her mother rubbed it on her legs and on her bottom and on the lower part of her back. Z said KY also rubbed it on her upper back and into her chest and into her bottom making sure that his fingers went into her vagina. She said she could smell it and that it might have been butter. She said she was aged five.
[92] T247 - T257.
Z said that after the butter was rubbed into her she was whipped by KY with the belt on her back and legs. She said she was hit about four times then her mother left the room and KY hit her again almost straight away about ten times. Z said after that she was untied and baby oil was rubbed into her. She remembered the smell of it. Z said that KY rubbed the front of her chest and he inserted his fingers in and out of her vaginal area; he had them in her for about 10 seconds.
Z said that she then had to roll over onto her stomach and he did her back and bottom. She said that she was told that the use of butter or margarine was for maximum impact of pain. After the baby oil was rubbed into her, KY told her to get into a cupboard which was in the room. Z said she was not told why she was to be put in the cupboard or how long she was going to be there. Z thought she was in the cupboard for about four hours. When she came out of the cupboard it was night time. No one came to check on her. She said she fell asleep in the cupboard after crying uncontrollably. She said it was KY who came and opened the cupboard doors. He told her to get out. He told her to get dressed and she was then required to sit on the stool in the kitchen and eat food scraps from the food scrap bin. The other members of the family were at the dining table eating. She said that nothing was said about this incident.[93]
[93] T246 - T257.
Z said that prior to this incident she had been physically punished on other occasions. Z described a punishment called ‘Wuthering Heights’.[94] Z described this as having to bend over and put her hands behind her head and staying like that for hours on end without moving.[95] She said that she saw R and S also receive this punishment. Sometimes it occurred on her own and this was more frequent than in the presence of others. She said that she received the punishment almost daily. Z said that sometimes they were struck with a belt or a stick before ‘Wuthering Heights’; sometimes she would be made to do ‘Wuthering Heights’ before being struck so that ‘for hours you were dreading the physical attack whilst doing ‘Wuthering Heights’’.[96] She said that her mother and KY made jokes about it. If she moved during the punishment she would be whipped with a leather belt. She said they had to be naked during this punishment; it wasn’t performed when she was not naked. Z said he told them ‘get naked’. Z said it was usually performed in the kitchen or lounge room.[97]
[94] T257.
[95] T257.
[96] T258.
[97] T259.
Z said that her mother tried to intervene during a punishment on one occasion. She said that was her earliest memory of being at Hughes Street. She said that KY was trying to strike one of them with the belt and her mother stepped in to intervene and that KY said ‘do you want to take the beating’ and started whipping her mother. He used a leather belt. This occurred in the kitchen. She recalled her mother ended up lying down and that the accused ripped her shirt off and then her shorts. She said R and S were also present.[98] She said that the incident seemed like an eternity but it probably took 10 or 15 minutes. She said she felt absolutely terrified and so scared for her mother and it was something that she would never forget.[99] She said the three children were just absolutely distraught, screaming and crying. She said that after the incident they were all told to go to their rooms; they weren’t able to speak to their mother and the matter was never spoken of again.[100]
[98] T260.
[99] T263.
[100] T264.
R was cross examined about alleged inconsistencies about the topic of bath times at Mile End. R described bathing with KY and sexual touching by him whilst R was in the bath with him.[239] In cross examination she was asked whether it was common that her mother would sit in the bathroom having a cigarette whilst KY was in the bath. R said that she recalled that, and then said, as if the memory was revived:
… just got that memory now. He used to come and ask me to sit, sit and chat on a stool … little chair.
[239] T75 - T80.
She said that her mother was not in there on those occasions.[240] Having re-read the evidence about this topic I do not think there is an inconsistency of substance. When asked in examination in chief about who else was in the bathroom R said that Z was in the bath with her; she had a memory of that happening a few times, more than once. She also said that her mother was aware of her bathing with KY. When asked in cross examination about her mother sitting in the bathroom smoking, R agreed with that. I think that R was genuinely recalling these events and when asked a specific question was prepared to consider and agree additional details. This cross examination about this topic did not cause me to doubt R’s credibility or reliability.
[240] T201 - T202.
The defence points to R’s lack of memory about KY’s employment. In evidence in chief R said that she did not recall KY working but she then said ‘hang on, I do recall him fencing, sorry I do recall him sporadic – I do recall him fencing, but it wasn’t a consistent daily job’.[241] In cross examination R was asked about other employment of KY and agreed with some of the suggestions put to her. R gave evidence that KY commenced living at Mile End when she was about five years old. R had difficulty recalling when she started schools.[242] Given R’s age at the time I do not think that poor memory or lack of memory about the employment of KY is of any significance to determining the facts in issue.
[241] T67.
[242] T35, T36.
The defence also points to alleged discrepancies in R’s evidence as to her happiness or unhappiness as a child. Reference is made to cross examination about specific occasions and to general remarks about her childhood.[243] I do not find this submission to be persuasive. I do not find that the questioning in this regard throws any light on the events alleged to have occurred during R’s childhood and adolescence.
[243] T141, T142, T214, T226-T231.
I have considered and referred to specific criticisms and alleged inconsistencies in respect of R’s evidence. I have not only considered the individual arguments put in respect of particular items of evidence, but also the cumulative effect of the criticisms. Standing back, considering R’s evidence and having regard to all the defence arguments about inconsistency and other discrepancies, I do not doubt the fundamental allegations made by R.
‘Hypnosis’: evidence of R
The accused submits that there is evidence that R had hypnosis and that accordingly her evidence is unreliable and should not be accepted. Mr White referred me to R v Geesing,[244] R v Horsfall,[245] and Hardwick v Western Australia[246] in support of the submission. Those authorities include discussion about the dangers associated with evidence based upon memories recovered as a result of hypnotherapy.
[244] (1984) 39 SASR 111 at [113] and [116].
[245] (1989) 51 SASR 489.
[246] (2011) 211 A Crim R 349 at [77]-[86].
R v Horsfall concerned an application to exclude the evidence of a child complainant after she had been subjected to a large number of interviews and also undergone hypnotherapy on several occasions relevant to two counts of indecent interference. Cox J decided that it would not be safe to admit the child’s evidence.
The relevant evidence at trial is:[247]
[247] T224.29 to T226.9.
QR, have you had therapy or treatment to aim to assist you to improve your memory about the sexual allegations.
AAgain I am finding it difficult to answer this question because –
HER HONOUR
QCan I just help you this way – maybe this might help.
AYeah, this is difficult.
QYou have had some counselling, is that right.
AI have had –
QYes or no, have you had counselling about these allegations.
AYes, yes.
QWhat Mr White is asking you about is not about all of the counselling issues but he’s asking you whether you have had counselling or therapy to try and improve your memory.
AYep.
QTo try and help you remember events better.
ANo but I had cognitive therapy, behaviour therapy at the beginning to – to take me to a place – to take me to a place of an event.
QTo go back in time to remember.
AYes, it wasn’t to retrieve a memory, it was to take me to a place of trauma. It wasn’t to retrieve memory.
QIn other words – you stop me if I am going too far both of you – in other words, for you to go back and revisit through memory what happened.
AYes, it was a type of hypnosis, yes.
HER HONOUR: Do you want to explore that? You can argue about it or whatever, I don’t know. I am not necessarily stopping that, I haven’t got a view about it yet.
XXN
QCan you say how long that treatment was.
AI had – I started with three sessions and the sessions started after I was diagnosed with post-traumatic stress disorder so the therapy was because I had post-traumatic stress disorder, it wasn’t to retrieve memory, it was to deal with my post-traumatic stress disorder.
HER HONOUR:
QI understand that.
HER HONOUR: Your question again, Mr White.
XXN
QHow long did you have that for?
AI had a succession of three to four sessions within six weeks through Relationships Australia.
QAnd they are the ones that diagnosed you with the PTSD.
AYes, the psychologist diagnosed me.
HER HONOUR:
QAnd when was that, that you did this.
AThis was –
QWhat year.
AWhen?
QWhat year.
AOkay, 19 – between 1995 and 1996.
In my view this evidence does not give rise to a concern that R is an unreliable witness. No questions were asked nor evidence led as to the events covered in the therapy. R said that the therapy was because she had post traumatic stress disorder and ‘it was not to retrieve memory’. No questions were asked nor evidence led about the process or treatment. Counsel could have asked more about the counselling or treatment and did not do so. R is a lay person. She was not asked about ‘a type of hypnosis’ or what cognitive therapy was. No other evidence was led in this regard.
Complainants in sexual cases often have counselling, psychological, or psychiatric therapy or treatment in the time prior to giving evidence at trial. There are legislative restrictions as to disclosure of communications made in a therapeutic context.[248] It was not suggested that the questioning on this topic infringed those provisions and no restriction was placed upon defence counsel’s questions as to the topic of retrieved memory or hypnosis. Counselling or other related treatment is likely to concern memories of alleged offending behaviour. That does not mean that evidence later adduced is unreliable. Whether the evidence of the complainant is unreliable as a result of therapeutic intervention is a question of fact. Understanding those facts or a therapeutic process may require expert evidence. I cannot assume or presume unreliability. There is no evidence before me that suggests unreliability for this reason.
[248] See Evidence Act 1929 - Division 9, ss67D – 67F.
The defence also points to other aspects of R’s evidence which are said to refer to ‘sensory memory’ and that are suggestive of therapy relevant to memory. I was referred to cross examination where R said she had ‘sensory memory going back to when she was a baby’[249] and her statement to police of 22 April 2007 when she said that she had blocked a lot of the memory out and it is only now just coming forward in my mind.’ During cross examination R said that this referred to blocking out memory that she was sexually abused. She denied that she had cognitive behavioural therapy to improve her memory about alleged sexual abuse. [250]
[249] T127 - T128.
[250] T131 - T133.
In my view this evidence did not demonstrate that R’s evidence was unreliable because of intervention of hypnosis or ‘memory retrieval’ due to counselling or other therapy. The questions did not go beyond R’s denials. I do not think that R’s evidence should be subject to a general direction about unreliability because of the suggestion of hypnosis or other therapeutic interaction. In my view there is no evidence to support that contention.
Alleged inconsistencies relevant to Z and consideration of Z’s evidence
In examination in chief Z gave evidence that she went to White Cliffs with KY; once on her own and once with her sister. She said she was 12 when she went alone with KY and that it was his idea that she keep him company. She said that KY touched her during that trip. She said that she was asleep and she woke up to find that he had two fingers down her pants, inside her knickers and inside her vagina. She said she did not know what to do and froze. She said he quickly withdrew his hand. She said this occurred on the trip to White Cliffs and they were very near to White Cliffs and she said they were in New South Wales. She said it occurred in early morning.[251]
[251] T290 - T291.
Z also said that something sexual happened at White Cliffs but she couldn’t remember and she didn’t want to remember. She said something bad happened. She said on the return trip from White Cliffs to Adelaide she fell asleep very late into that trip. She said that when she woke up his hands were in her vagina again, down in her knickers, with two fingers in her vagina. She said the car was moving and she recalled seeing the caravan park next to the White Horse Inn on a very busy industrial road near Adelaide. She said she saw that as soon as her eyes opened.[252]
[252] T293 - T294.
It is submitted that Z’s evidence is inconsistent with R’s evidence about travel to White Cliffs as R said that Z went quite a few times with KY to White Cliffs.[253]
[253] T91.
Z was cross examined about differences in her statements as to who went with KY to White Cliffs.[254] In her statement of 21 November 2013 Z said she only recalled one trip to White Cliffs with KY. On 12 September 2013 she said ‘K would only take one of us’. In evidence Z said that she recalled making a trip to White Cliffs with R when she was 11. This was inconsistent with the statements to police. I asked Z why did she say in her statement ‘he would only ever take one of us’ and she said that was because that is what usually occurred.
[254] T381.
Z was cross examined about the location of the White Horse Inn in relation to the property at Waterloo Corner. The proposition was put that if KY had driven near the White Horse Inn he would have come further south than the Waterloo Corner property. Z said she could not explain why she recalled that location when that was further south than the Waterloo Corner property. She said that she didn’t know why he would have been near that landmark and that he could have driven to get petrol. She said that this incident occurred at night.
The defence submits that Z’s evidence about the trip to White Cliffs is unreliable because the White Horse Inn must have been further south than Waterloo Corner (travel to White Cliffs was north from Waterloo Corner) and that Z’s memory of seeing the White Horse Inn on that occasion must be incorrect.
If Z is fabricating her account of the sexual touching on this trip and has placed one of the touching incidents near the White Horse Inn to ensure that it was within South Australia, it is difficult to see why she would have admitted that the touching on the trip to White Cliffs occurred in New South Wales. I also do not think that the differing accounts as to who went on which trip to White Cliffs are of particular significance. There were, it seems, a number of trips to White Cliffs and different children went at different times. Inaccurate memory about that detail does not cause me concern about Z’s reliability and credibility.
I was also referred to other inconsistencies between Z’s evidence and statements made to the police.
In respect of the incident when DY as well as the children were allegedly beaten by KY, the defence point to a number of additional details given in evidence and not referred to in the police statements. Z was cross examined about the statement that her mother was naked; that KY told the children to ‘shut the fuck up’, that Z said that the children were not permitted to see their mother afterwards and were sent to their rooms and that the incident started when a child was being hit in the head by KY.[255] Z admitted that these details were not included in the statement to police of 21 October 2004. Z said that in 2004 she was giving ‘the shell of my story. The body of it came out later, more extreme’. Z said that in 2004 she gave a ‘lighter version’ of what happened. She said that it was a truthful version [to the police] but ‘easier on me. I was just happy to start with a very basic story and then to give all the nasty bits later’. [256]
[255] T376-380; XXN on these topics.
[256] T377.
The defence also showed inconsistencies between Z’s evidence and her police statements in respect of the incident where she was allegedly tied to the bed involving DY and KY[257] and the bathing incident when KY is suggested to have ejaculated.[258] I have concerns about Z’s evidence about those two incidents.
[257] T339-345; T348-350; T356-363.
[258] T411 - T420.
The first incident of sexual assault described by Z allegedly occurred in DY and KY’s bedroom at Hughes Street Mile End when she was five years old.[259] This was one of the most detailed accounts given by Z. This account causes me concern about Z’s reliability and credibility. There are numerous details of that incident that I have difficulty accepting.
[259] T246 - T257.
Z claimed to remember what clothes she was wearing (shorts, a t-shirt and knickers). Z recalled where butter or margarine was rubbed on her body; Z recalled her mother leaving the room about four times. Z remembered the number of times she was struck by KY. She remembered the use of baby oil. Z remembered that KY moved his fingers in and out of her vaginal area. Z recalled that her mother could not restrain her so that her mother used two silk scarves taken from a drawer next to the bed and she recalled how she was tied to the bed. Z said that when rubbed with baby oil, KY moaned and said ‘I shouldn’t be so bad and then this wouldn’t happen’. Z said that she was then told to get into a cupboard; she could describe it as having a free standing half side and then the other side had a couple of shelves and some hanging space. She said that she got into the freestanding side. Z said that she stayed in the cupboard for about four hours and that she fell asleep after the first hour after she had cried uncontrollably. Z said KY opened the cupboard door and said ‘get out’. Z said after that she had to sit on a stool in the kitchen and had to eat food scraps from the scrap bin. She remembered that other members of the family were seated at the dining room table.
Z was born on 21 May 1974. According to her account, she was aged five at the time. This incident occurred in 1979/1980. That is over 34 years ago. As I listened to this evidence I felt doubt about the description of events said to be recalled by a person who was so young at the time. I doubted (and still do) that the detail that Z confidently recounted was genuine memory of those events.
Another incident described by Z included detailed memory and observation that I find to be doubtful. This evidence relates to when Z was in the bath with KY. There was an occasion described where Z said that she was sitting astride KY in the bath and that he penetrated her with the knob of his penis. She described KY moaning and that she didn’t know what he was doing. The water was splashing and Z said that she noticed that there was a white residue in the bath that was different from the texture of soap and that the white material floated towards her. Z said she was five years old at the time.[260]
[260] T277 - T279.
Apart from the other detail described by Z her description of what was implied to be semen floating on the top of the water troubles me. Experience suggests that detail described would not be noticed by a five year old. Z’s description of moving away from the floating material ‘I retreated as far back to the bath as I could get from him’ is very detailed memory which I find unlikely to be recalled over 30 years later.
Cross examination of Z about these alleged incidents further eroded her credibility and reliability. I do not repeat the inconsistencies between her evidence and the statements given to police[261] but I observe that the cross examination on these topics added to my concern about Z’s evidence. For example, I found it difficult to reconcile Z’s evidence that she retreated to the far corner of the bath (after the alleged ejaculation) with her statement on 12 September 2013 that ‘he told me to get out of the bath’. I found the answers in cross examination about that topic to be unsatisfactory and unconvincing.
[261] See T339-345; T348-350; T356-363; T411-420.
I think that other aspects about Z’s account of the events are wrong. She described the punishment ‘Wuthering Heights’ in similar terms to R and S but her description of the shortest timespan for doing this punishment ‘would be two hours’ and the longest timespan she recalled being 10 hours. [262] This must be an exaggeration. I do not think anyone could maintain that sort of position for anything like 10 hours and probably could not do it for two hours. Similarly, when Z described the punishment called ‘the Scarecrow’ she said that punishment could be for two hours and last up to six hours.[263] I do not accept that that is an accurate recollection of the length of time for the duration of that punishment.
[262] T268.
[263] T270.
Z’s description of being placed in the shed at Mile End about six times and being left overnight is inconsistent with the recollections of others. Although other severe punishment was inflicted it seems beyond belief that a five year old could be left in that shed overnight naked without any bedding or food on multiple occasions with the risk that others may find out about this conduct. R and S also referred to the use of the shed for punishment but not for such lengthy periods and neither R nor S referred to the shed punishment being used in this fashion in respect of Z.
Findings in respect of ‘punishments’ of Z, R and S by KY
Whether or not the alleged conduct is ‘punishment’ or assaults I will use the term ‘punishment’ in this consideration of the issue.
The evidence in relation to this conduct is from Z, R and S as well as the admission of an extreme form of punishment made to Mr Hazledine.
This evidence is relevant to negative any suggestion of a relationship of affection and care between KY and his step-children and to prove the atmosphere of control, subjugation and fear within the household which explains lack of complaint and ongoing compliance, even during adolescence. The evidence also has the capacity to explain DY’s lack of protest or intervention about her husband’s conduct.
The evidence in respect of punishment not only reveals sadistic features but also some sexual aspects particularly the requirement that Z and R be naked or partially naked during punishments and that punishments were often linked to sexual touching of the labia of R.
Z, R and S all gave evidence about the punishments upon themselves and observed in respect to siblings. There were strong similarities in respect of their accounts. They each described and demonstrated the positions which they were required to adopt and maintain. They each described the names given to the punishments and the frequency of administration of them. There were variations: some aspects of Z’s evidence were unsatisfactory and unconvincing particularly about duration of the positions. They each described degrees of undress during the punishments. The main difference in that regard was between Z and R on the one hand (who said they were naked) and S who said they had no tops on and were told to take off their pants, ‘drop ‘em blossom’, to receive blows.
I am satisfied beyond reasonable doubt that KY inflicted violent, degrading and extreme punishments upon Z, R and S, particularly those referred to as ‘Wuthering Heights’ or ‘Wuthering Knees’ and the ‘Scarecrow’ and that the punishments were beyond the bounds of reasonable chastisement by a person in a parental role with a child.
I am also satisfied that punishments upon Z and R were linked to sexual interest in them. I find that the incident described by S whereby he witnessed Z and R, when post pubescent adolescents, standing naked with their arms in the air whilst KY sat and looked at them occurred and that incident proves a link between punishment and sexual interest. Other evidence of alleged touching of R’s labia during punishment is to similar effect.
There are two important aspects in respect of the punishment evidence that I have regard to. I must not and do not reason that because KY behaved in this way that he has a general disposition to offend or is a bad person. Also, it is important that I consider whether KY’s conduct towards Z, R and S in respect of excessive, abusive ‘punishment’ provides a motive for any or all of them to fabricate allegations of sexual abuse. I think that a victim of the physical abuse described by the witnesses would have ongoing feelings of distress and anger towards the perpetrator. As I have considered the evidence and made findings I have kept this possibility in mind.
There was evidence about Z, R and S being locked in a shed at the Mile End house. This evidence only has general relevance and is not linked to any alleged offending. The defence points to the photograph in Exhibit P15 to the effect that no door is visible on the shed shown in the photograph showing the back of the house. I do not think that photograph is very clear in that regard. The challenge to the evidence in relation to the shed largely relates to credit, particularly of Z. I have regard to the evidence for that purpose but otherwise I think the topic is of little significance to the issues at trial.
I also observe that the evidence of punishment with arms or body held in a particular way is necessary to understand the observation made by S at Waterloo Corner of his sisters standing naked with their arms in the air i.e. that this was part of a ‘punishment’ routine required by KY. Without the other evidence in respect of punishments this event would seem extraordinary.
Findings in respect of Z (Count 1)
I refer to my earlier comments about inconsistencies and Z’s evidence about being tied to the bed at Mile End and ejaculation in the bath.
I do not know and cannot say whether Z was an untruthful witness about the allegations of sexual assaults but for the reasons articulated I have doubts about Z’s credibility and reliability about those allegations. In the circumstances I have doubt about her evidence about the alleged sexual assaults upon her.
S’s evidence of an incident (possibly more than one) when he observed both R and Z naked and apparently in a punishment position at Waterloo Corner and his observations of Z in the bath with KY, are generally supportive of Z’s evidence of KY’s sexual attraction and sexual interest in Z, but not enough to overcome my concerns and doubts about Z’s overall reliability and credibility.
I may use evidence of sexual touching of R (if proved) as circumstantial evidence in the case concerning alleged touching of Z by KY. The sexual assaults which Z alleged to have occurred in the bath at Mile End are also alleged in similar terms by R. S gave evidence of observation of both R and Z in the bath with KY. He denied the suggestion that only occurred when R and Z were very young. Notwithstanding this other supporting evidence a number of aspects of the evidence of Z are so unsatisfactory that I have doubt such that I cannot find the offence proved beyond reasonable doubt.
To convict KY of the first count I must be satisfied beyond reasonable doubt that two or more instances of the particularized conduct occurred. I cannot reach that degree of satisfaction. Accordingly I find KY not guilty of Count 1.
Findings in respect of R (Count 2)
R was a credible and reliable witness about the important aspects of her evidence. Earlier in these reasons I have considered defence criticisms and inconsistencies in regard to her evidence.
In light of my inability to find the charge concerning sexual offending upon Z proved, I have not had regard to Z’s evidence about that topic to positively support the evidence of R. Whilst that evidence was cross admissible, I do not rely on it. I have had regard to Z’s evidence about the punishment described as ‘Wuthering Heights’ and ‘Scarecrow’ and in a general sense, evidence of bathing with KY but in view of my findings, do not otherwise rely on specific sexual conduct alleged by Z. I do not rely on similarities or improbability of account in respect of the evidence of Z.
Notwithstanding my decision about Count 1, I have considered whether collusion between Z and R is a reasonable possibility. In effect whether they colluded and whether R did ‘a better job of it’. I have regard to the cross examination of R when she admitted that she had read one page of a statement made by Z in 2003[264] and that Z had posted statements to her; a couple of years earlier when R understood that Z was not to participate (give evidence).[265] R was also cross examined about signing a statement on 22 April 2007 and that Z signed a statement on the same date witnessed by the same person at the Sturt Police Station. R denied seeing her sister on that date.[266] R gave evidence of the usual Police warning not to discuss statements[267] and I find it most unlikely that Z and R would collude at the Police Station when they came to sign statements. Of course they could do so at another place or time but I do not find any evidence that they did so.
[264] T542.
[265] T543.
[266]T544 – T546.
[267] T542.
R was a good witness. Having heard and observed her, I find her to be truthful. There were criticisms, fairly made, of her evidence and some inconsistency of account. I have had careful regard to those matters. R’s evidence is supported by evidence from S as to bathing with KY at Mile End and his observation of R and Z required to stand naked with their arms in the air at Waterloo Corner whilst KY watched or looked at them. R’s evidence is also supported by the admission made to Mr Hazledine. That admission was to the effect that the sexual touching did not include intercourse. I observe the common usage of ‘sexual intercourse’ has a narrower meaning than the Criminal Law Consolidation Act. R’s evidence was that complete penile penetration of the vaginal canal did not occur, rather that KY positioned his penis in her labia and that he was grinding her against his hips and she didn’t think he ejaculated.[268] R also described digital penetration by KY. It may be that when speaking to Mr Hazledine, KY did not consider his actions to be sexual intercourse or that he was minimizing his actions. The reference to R being the ‘instigator’[269] is consistent with the remark being made by a sex offender; it is a self justifying remark about the conduct of a child. It is also a good indicator that Mr Hazledine did not invent the conversation.
[268] T100 - T101. See also T77-78: no penile penetration of vaginal canal in the bath at Mile End.
[269] T594.
I find, beyond reasonable doubt, that KY touched R to the labia/vaginal area during punishments; that he touched and penetrated her labia during baths at Hughes Street; that he touched and penetrated her vagina whilst at a Drive In and on a trip to White Cliffs; that he penetrated her vagina with his fingers whilst she was in bed at Waterloo Corner and that he penetrated her vagina with his penis at Waterloo Corner.
Not all of the acts of sexual exploitation alleged in Count 2 are referred to or proved in evidence. Particularly, there was no evidence of KY touching R on the breasts, causing her to touch him on the penis on numerous occasions or causing her to touch him on his bottom on numerous occasions. The other acts particularised as a), c), d) and e) were proved in the evidence.[270] I do not think there is any significance in the absence of reference to or evidence of the acts particularised as b), f) and g).
[270] T60 - T62, T69, T87 - T90, T108 - T109.
There is no dispute that KY was, at the relevant times, an adult and that R was a child.
I am satisfied beyond reasonable doubt that KY committed more than one act of sexual exploitation against R and that these acts were committed over a period of not less than three days.
I find KY guilty of Count 2.
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