R v Z, J - [2013] SADC 83

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v Z, J
Criminal Trial by Judge Alone
[2013] SADC 83
Reasons for the Verdicts of His Honour Judge Lovell
25 June 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone - accused charged with eight counts of unlawful sexual intercourse involving one complainant.
Verdicts: Not Guilty of all counts.
Juries Act 1927 (SA) s 7; Criminal Procedure Act 2004 (WA) s 120(2); Evidence Act 1929 (SA) ss 34CB, 34M; Criminal Law Consolidation Act 1935 (SA) ss 49(1), 49(3), referred to.
R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; Douglass v R [2012] HCA 34; R v S, DD (2010) 109 SASR 46; R v Szejnoga (1998) 199 LSJS 97, considered.

R v Z, J
[2013] SADC 83
Introduction
Trial by judge alone
Legal directions
Forensic disadvantage
Motive
Uncharged acts
Complaint and other evidence
Elements of unlawful sexual intercourse
Counts 1, 2, 3, 4, 5 and 6
Counts 7 and 8

Prosecution evidence
Complainant’s evidence
Background
Uncharged act – kissing incident
Count 1
Initial complaint to grandmother in relation to Count 1

Mrs Z’s evidence of the initial complaint
Mrs Z tells initial complaint to R
Reasons for not reporting the initial complaint
Actions after initial complaint

Evidence of complaint was led by the prosecution
Complainant’s evidence
Count 2
Count 3
Count 4
Count 5
Count 6
Count 7
Uncharged act – Paradise Church incident
Uncharged act – Dernancourt Primary School incident
Uncharged act – Gilles Plains Shopping Centre incident
Count 8
Gifts from the accused
Bag with $1000
Sister L’s birthday - $300 and roses
Gold chain for 16th birthday
Money in bank account
Initial complaint to Ms T in relation to Counts 2, 3, 4, 5, 6, 7, 8

Evidence of Ms T
Initial complaint in relation to Counts 2, 3, 4, 5, 6, 7, 8
Telephone conversation with C

Discussion re second complaint
Complainant’s evidence
Reporting sexual abuse
Other issues
C’s schooling
1st Suspension at Dernancourt Primary School
2nd Suspension at Dernancourt Primary School
3rd Suspension at Dernancourt Primary School
4th suspension at Dernancourt Primary School
5th Suspension at Dernancourt Primary School
Suspensions at Windsor Gardens Vocational College
Exhibit D5 – Photograph of the accused and C
Exhibit D6 – Photograph and text
The accused’s trip to Sydney
Exhibit D3 – Stylised photo frame

Incident involving the Department for Family and Youth Services
Evidence of Ms Hosking
Exhibit D4 – Documents from Department of Families and Communities

Relevance of Exhibit D4
C’s evidence about the incident
Ms Hosking’s evidence as to the Report
Exhibit D11 – Formal notification to school dated 07/03/2003
Exhibit D12 – Fax cover to police
Exhibit D9 – Letter dated 10 March from Youth Services

Evidence of Mrs Z
The accused’s relationship with his grandchildren
Business relationship with accused
C’s time at her grandparents’ house
Falling out with M
Events after the falling out with M
Uncharged kissing incident between the accused and C
Trip to Greece
C’s cat
C’s 16th birthday present
Mrs Z’s current relationship with C
Confronting the accused
Exhibit D5 – Photograph of the accused and C
Exhibit D6 – Photograph and text

Defence evidence
Evidence of Ms JZ
Background
Character evidence

Discussion
Conclusion
Introduction

The accused is the step-grandfather of the complainant C. C alleges that over the course of a number of years the accused sexually abused her by placing his fingers in her vagina. The conduct alleged occurred when C was about nine years of age until she was 14.
Trial by judge alone
The defendant elected for trial by a judge sitting alone pursuant to s 7 of the Juries Act 1927 (SA). The Juries Act is silent about any requirement as to the contents of reasons for verdict.
In R v Keyte[1] Doyle CJ identified reasons why, in his view, a trial judge needed to provide detailed reasons for judgment. The reasoning of the Chief Justice was approved by Heydon J in AK v Western Australia[2] and also in Douglass v R.[3]
[1] (2000) 78 SASR 68.
[2] (2008) 232 CLR 438 at [107].
[3] [2012] HCA 34.
Although dealing with s 120(2) of the Criminal Procedure Act 2004 (WA) Heydon J stated why detailed reasons were important. He said:
The process of having to state judicial reasoning in terms sufficiently clear, exact and convincing to pass muster in the eyes of an appellate court listening to the sometimes hypercritical submissions of counsel entails a need to be very precise in working that reasoning out. The discipline stems from the fact that the process of stating reasoning often reveals its fallacies: in the course of composing reasons for judgment directed to supporting a conclusion which seemed clear, judges often find that the opinion “won’t write”, and that a different conclusion develops. There is a legislative assumption that compliance with that discipline is not only more likely to produce justice according to law, but is a necessary precondition for that outcome. The abolition of jury trial entails removal of the safeguard to be found in the peculiar discipline of jury trial. The new safeguard, to be found in the discipline of having to give reasons, is a vital technique for ensuring accurate fact finding, correct inferential reasoning and sound application of the law to the facts.
This prosecution case is based almost entirely on the credibility of the complainant C. Detailed reasons are important in such a case.
Legal directions
As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offences as charged.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offences unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
The accused is presumed by law to be innocent of each of the offences unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of any offence charged, then he remains presumed innocent and I must find a verdict of not guilty.
If I am satisfied that there may be an explanation consistent with the innocence of the accused of any charge, or I am unsure of where the truth lies, then I must find that the charge has not been proved to the standard of proof required by law and I must find the accused not guilty.
I must determine whether each of the witnesses are truthful and reliable, that is whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my commonsense, experiences and wisdom in assessing the evidence.
In this matter the prosecution seeks to establish guilt of the accused with a case almost exclusively on the evidence of a single witness. I must therefore exercise caution and examine her evidence very carefully in order to satisfy myself that I can safely act upon that evidence. I must approach the evidence with particular caution. I must scrutinise the evidence with great care and only act upon it if I am satisfied beyond a reasonable doubt that it is honest, reliable, credible and truthful.
The accused elected not to give evidence in this Court; he remained silent. He was not bound to give evidence. He has the right to decline to give evidence because that is his legal right and I must not draw any inference adverse to him or the case he puts forward from the exercise of that right. There may be many reasons why he did not give evidence and I must not speculate on those reasons. I must always bear in mind that it is for the prosecution to prove its case beyond reasonable doubt.
The accused is charged with eight offences. I must consider each count separately and consider that charge only by reference to the evidence that applies to it.
Both the prosecution and the accused are entitled to a separate consideration by me of each of the crimes charged. It would be quite wrong to say that simply because I found the accused guilty of one count that he must therefore be guilty of other counts. I must ask myself to each count separately, am I satisfied beyond a reasonable doubt by the evidence that relates to that count that the accused is guilty of that crime?
Forensic disadvantage
In this case there has been a lengthy period between the alleged offending and the trial.
That delay has resulted in a significant forensic disadvantage to the accused.[4]
[4] Section 34CB Evidence Act 1929.
The forensic disadvantage includes the fact that the complainant was attempting to remember details of facts, conversations and particular movements, some of which occurred nearly 10 years ago. Clearly, the task of cross-examination on those matters is made more difficult. (I take that significant forensic disadvantage into account only when scrutinising the evidence for the prosecution.)
The overall delay has disadvantaged the accused. I must take the forensic disadvantage into account when scrutinising the evidence of the complainant and the other prosecution witnesses.
Motive
There was no evidence adduced here of a motive for C to lie. The absence of the evidence of motive to lie does not strengthen the prosecution case. It is neutral as lies can be told for no apparent reasons. It is not for the accused to provide a motive for the complainant to lie and at all times the prosecution bears the onus of proof of these charges beyond reasonable doubt.
Uncharged acts
In addition to the charged acts, the prosecution has adduced evidence from the complainant of other conduct not the subject of any charge.
The prosecution led evidence, of three uncharged acts, to show a pattern of behaviour by the accused towards the complainant. These are referred to later in these reasons. Further, the prosecution led evidence of the ‘kissing’ incident. I also deal with that incident later in these reasons.
The question arises in either category as to the degree of proof required before those other acts can be acted upon. For my part, I have adopted the requirement that those acts be proved beyond reasonable doubt before I could act upon them.
Complaint and other evidence
Elements of unlawful sexual intercourse
Counts 1, 2, 3, 4, 5 and 6
The offence of unlawful sexual intercourse under s 49(1) of the Criminal Law Consolidation Act 1935 is committed when a person has sexual intercourse with a person under the age of 14 years.
The definition of unlawful sexual intercourse under s 49(1) of the Criminal Law Consolidation Act 1935 can be broken down into two ingredients:
1. First, there must be an intentional act of sexual intercourse. Sexual intercourse includes digital penetration of the vagina.
2. Secondly, the person with whom the accused had sexual intercourse with was under the age of 14 at the time of the sexual intercourse.
Counts 7 and 8
The offence of unlawful sexual intercourse under s 49(3) of the Criminal Law Consolidation Act 1935 is committed when a person has sexual intercourse with a person under the age of 17 years.
The definition of unlawful sexual intercourse under s 49(3) of the Criminal Law Consolidation Act 1935 can be broken down into two ingredients:
1. First, there must be an intentional act of sexual intercourse. Sexual intercourse includes digital penetration of the vagina.
2. Secondly, the person with whom the accused had sexual intercourse with was under the age of 17 at the time of the sexual intercourse.
In relation to all the offences of unlawful sexual intercourse, the state of mind of the complainant in this case is irrelevant.
It is not a defence to a charge of unlawful sexual intercourse if the complainant consented to the sexual intercourse.
Prosecution evidence
Complainant’s evidence
Background
C is now 17 years of age. She has been living in Sydney for the past four years. She completed Year 12 schooling in October/November of 2012 and plans to study in the future.[5]
[5] T 9.
Prior to living in Sydney, C lived in Adelaide. She moved to Sydney just before December of 2009.[6]
[6] T 9.
C has three siblings; an older sister named L whom she shares the same mother and father with, and two younger brothers with whom she shares the same mother with.[7]
[7] T 10.
Her maternal grandmother remarried a man named Z, also known as J, and the accused in this trial. She calls the accused, papou, which is Greek for grandfather. C is only related to the accused through the accused’s marriage to her grandmother; C has known the accused since she was born.[8]          C’s mother has five brothers; three of those are stepbrothers who are the accused’s sons.[9]
[8]    T 10.
[9]    T 11.
Until the age of five or six, C said she shared a close family relationship with her immediate and extended family. They had many family gatherings where her aunties, uncles, grandparents and cousins would attend.[10]
[10] T 11.
It was not until the age of nine or 10 that C spent time alone with the accused at his house in Valley View, in the car, or on the way to the shops. This occurred at least three to five times a week.[11]
Uncharged act – kissing incident
[11] T 12.
In 2004, C said that the accused had kissed her and forced his tongue into her mouth when she was outside the Valley View house giving him a hug and kiss goodbye. She went inside and said to her mum and grandmother, ‘When I went to say goodbye to papou he kissed me and his tongue went in my mouth’. Her mum said, ‘Don’t be silly, he was just trying to say goodbye’. Nothing else was said about this incident.[12]
Count 1
[12] T 13.
The next alleged incident C clearly remembered occurred about one month after the kissing incident.[13]
[13] T 14.
C was at her grandparents’ house late one night. She was lying on the couch in the lounge room. I note the lounge room is a separate room from the TV room. She was lying on her back and woke up to find the accused on top of her. She said she felt his fingers inside her vagina.[14]
[14] T 14, T 67.
The accused was the only male in the house at that time. C said she knew it was the accused on top of her because he was really heavy on her chest and he was crushing her to the point where she felt like she could not breathe.[15] She said that she did not feel pain when the accused had his fingers inside her vagina. The only pain she remembered feeling was the accused’s body weight on her chest.[16]
[15] T 14, T 69.
[16] T 69.
C said she would have been wearing tracksuit pants and a T-shirt as she never wore dresses to bed. She said the incident felt like it lasted for a couple of minutes. C said the accused took his fingers out of her vagina and pulled his hand out of her pants. He then went to bed as if nothing had happened.[17] No words were exchanged between C and the accused.[18]
[17] T 15.
[18] T 67.
C said she laid there shocked and petrified because she did not know what to do.[19] She was also confused as to why the accused had done what he did.[20] At the time, she did not say anything to anyone about what had occurred. The following day it was also as if nothing had happened.[21]
[19] T 15.
[20] T 69.
[21] T 68.
C was nine or 10 years old at the time.[22] This was not the first time the accused had placed his fingers inside C’s vagina but it was the first incident C could remember in detail.[23]
[22] T 70.
[23] T 15.
In early October 2006 C’s cousin died.[24]
[24] T 16.
The funeral for her cousin was held a few weeks after C returned from Victoria. She attended the funeral and went to her grandparents’ house to mourn and grieve for her cousin.[25]
[25] T 16.
C said that the incidents where the accused put his fingers inside her vagina, started occurring again just after her cousin’s funeral. She could not remember whether it was a few days or a week after the funeral. She said, ‘It never stopped, it always happened’.[26] C said that the accused did not sexually abuse her every time she was with him, but if they were alone together and he had a chance to sexually abuse her, then he would.[27]
Initial complaint to grandmother in relation to Count 1
[26] T 17.
[27] T 88.
In September 2007, C made a complaint to her grandmother. She remembered the date because she kept journal papers and wrote about what she told her grandmother. The journal paper however, was lost during her move from Adelaide to Sydney.[28]
[28] T 18.
On this occasion in September 2007, C and her grandmother were in the car driving to Gilles Plains Shopping Centre. C asked her grandmother, ‘Is it okay for someone to put their hands in between your legs?’ Her grandmother said, ‘No, it wasn’t’.[29]
[29] T 18.
C said the conversation was left at that until they were leaving the shopping centre and going back to the house. Her grandmother asked her, ‘Why?’ and she told her grandmother, ‘Because papou had been doing that’. C’s grandmother said, ‘No, are you sure?’ and she replied with, ‘Yeah, I was sure’.[30]
[30] T 18.
C remembered that when they arrived home, she went and sat in the back room of the house with her Uncle P.[31]
[31] T 18.
C said she stayed at her grandparents’ house that night and she slept in the room across from her Uncle P’s room. This was the room she normally slept in when staying at her grandparents’ house. Her grandmother slept in the same room as C that night.[32]
[32] T 18-19.
After the initial complaint, C’s grandmother never slept in the bedroom with the en suite, with the accused again. Instead, her grandmother slept in the bedroom across from her Uncle P’s bedroom.[33] C said her grandmother was supportive of her because her grandmother moved out of the bedroom and into another bedroom; her grandmother did not continue any type of relationship with the accused in that sense.[34]
[33] T 25.
[34] T 130.
C said that her grandmother did not say anything to her about sexual abuse happening to her in the past.[35] It was not until C was in Sydney and quite some time after she made a report to police, that her grandmother told her about sexual abuse that had happened to her. C said that her grandmother was the only person in her family who she told about the abuse.[36]
[35] T 130.
[36] T 130.
About one month after C complained to her grandmother, the accused said to C, ‘What you doing trying to get me in trouble? You know, why do you want to get me in trouble?’[37] C did not respond to the accused’s comment.[38]
[37] T 39, T 132.
[38] T 39.
Mrs Z’s evidence of the initial complaint
Mrs Z gave evidence. I deal with all of her evidence later in these reasons.
When C was young, Mrs Z had a conversation with her about the accused.[39] The conversation occurred before Mrs Z’s falling out with her daughter M. Mrs Z said the conversation may have taken place around 2006.[40]
[39] T 186.
[40] T 188.

Mrs Z was going to a shopping centre with C and C asked her ‘a funny question’ while they were in the car. C asked Mrs Z, ‘Whether it was all right for someone to put their hands up her legs’[41] Mrs Z said she responded, ‘No’.[42]
[41] T 186, T 191.
[42] T 186.
When Mrs Z and C were walking down the aisles of Woolworths at Gilles Plains Shopping Centre, Mrs Z stopped her shopping, looked at C and asked C, ‘Why? Why did you ask me that question?’[43]
[43] T 186, T 191.
C turned to Mrs Z and told her that while she was sleeping one night, the accused went into the lounge room (marked ‘lounge’ in Exhibit D7). C said she was sleeping on the couch and the accused went and laid on her and put his hands up her dress or pyjamas. Mrs Z said she could not remember what C said she was wearing as it was not mentioned.[44]
[44] T 187.
Mrs Z said she could not go into detail and ask C how or what the accused did to her. Mrs Z only knew what C had told her in the supermarket and it was never brought up again. Mrs Z said that even up until the present day, she did not know what else the accused had done to C.[45]
[45] T 194.
After C told Mrs Z what happened, Mrs Z said she was so upset that she did not even remember what shopping she did, how she got out to the car, or how she got home that day.[46] She did not know what to do about it. Mrs Z said she just went home and thought and thought ‘What am I going to do?’[47]
[46] T 187.
[47] T 187.
Mrs Z said she ‘knew that this was going to destroy the family’.[48]
[48] T 188.
Mrs Z said she remembered more detail of the conversation between her and C since speaking to the police about it.[49]
[49] T 192.
It was put to Mrs Z during cross-examination, that in her second statement to police dated 26 March 2013, she did not say anything about the accused lying on top of C and putting his fingers up her.[50] Mrs Z said she did not put that in her statement because when she says things, she just opens her mouth and words come out whichever way she says it. Mrs Z said it was just the way she spoke and that she was not very articulate.[51]
[50] T 193.
[51] T 193.
Mrs Z further said that her memory about C telling her that the accused laid on top of her and put his fingers up her when she was on the couch, came about from her remembering what C said. She said the memory did not come about during the time she had been living in Sydney.[52]
[52] T 192.
Mrs Z said she did not discuss things with C and they have never discussed things at home since C, and C’s father, made a report to police.[53]
Mrs Z tells initial complaint to R
[53] T 192.
The only person Mrs Z told about the conversation that had occurred between her and C at Woolworths was R, the accused’s son. The conversation between Mrs Z and R took place at R’s workplace in Wingfield, in 2006, on a Friday afternoon, a few days after the conversation with C at Woolworths.[54]
[54] T 188-189, T 199.
R is C’s godfather.[55]
[55] T 188.
Mrs Z said to R, something along the lines of, ‘His father had molested her’; ‘Her’ referring to C. Mrs Z was very upset and crying at the time. R said to Mrs Z, ‘How do you know it’s true?’ and Mrs Z said, ‘I know it’s true because I was molested as a child’. At that moment, Mrs Z said all her feelings came out. Mrs Z told R, ‘I know ... because I’ve been through it’. Mrs Z said that if she had been through it then she knew straight off.[56]
[56] T 194.
Mrs Z said she tried to protect C but she failed.[57]
Reasons for not reporting the initial complaint
[57] T 194.
After speaking to R, Mrs Z did not report what C had told her, to the police or C’s school.[58] She said she did not know what to do.[59]
[58] T 194-195.
[59] T 194.
Mrs Z said she ‘swept it under the rug, like [she] swept [her] life under the rug’.[60]
[60] T 195.
Mrs Z did not tell C’s mother, M, about the complaint because M was ill. Mrs Z said M had thrombosis in the heart and she was not going to tell her. She also did not tell C’s dad, G, because she did not want her family to get destroyed.[61]
[61] T 195.
Mrs Z said that being married to a person for 35 years, bringing up the accused’s children as if they were her own, and bringing her children up as if they were all one family and all knitted together and then having something like this happen, ended her world.[62]
Actions after initial complaint
[62] T 189.
After the conversation with C at Woolworths, Mrs Z said that as far as she was concerned, her marriage was finished.[63] Mrs Z said she could not take it anymore and she slept in a different bedroom to the accused. She said when her children came to the house and found out she was not sleeping in the same bedroom as the accused, they asked her what was wrong. Mrs Z told her children things such as, ‘Your father snores and I’m sleeping in the room because I’m not feeling well’.[64]
[63] T 189.
[64] T 189.
Mrs Z was shown Exhibit D7. She said she slept in bedroom 3 after she moved out of the bedroom she shared with the accused.[65]
[65] T 189.
Mrs Z said bedroom 3 was previously her son, P’s room.[66] She also said C sometimes slept with her in bedroom 3.[67]
[66] T 189.
[67] T 189.
Mrs Z said she tried telling C not to come to the house anymore and to be careful of the accused.[68]
[68] T 189.
Evidence of complaint was led by the prosecution
Section 34M of the Evidence Act 1929 (SA) deals with the admissibility of and the use that can be made of ‘complaint’ evidence. Section 34M repeals the common law relating to complaint evidence. In this case the common law requirements of the complaint being spontaneous and being made at the first reasonable opportunity are present. However, they are not requirements under s 34M.
34M—Evidence relating to complaint in sexual cases
(1)     This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2)In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
•    when the complaint was made and to whom;
•    the content of the complaint;
•    how the complaint was solicited;
•   why the complaint was made to a particular person at a particular time;
•    why the alleged victim did not make the complaint at an earlier time.
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a)     it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the consistency of conduct of the alleged victim; and
(b)     it is not admitted as evidence of the truth of what was alleged; and
(c)     there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6)In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
It is a matter for me to determine the significance of the evidence in the circumstances of this case.
For the evidence to be admitted under s 34M, the court must be able to say that the complaint evidence is admitted both to inform me as to how the allegation first came to light and as evidence of the consistency of conduct of the complainant.[69]
[69] R v S, DD (2010) 109 SASR 46.
What ‘consistency of conduct’ means was discussed by Doyle CJ in R v Szejnoga.[70]
The evidence is admitted because of its tendency to prove consistency of behaviour. That consistency has, I consider, two aspects. Firstly, consistency in the sense of making a complaint when one would expect a complaint to be made. That is the relevance of the assumption, referred to by Gaudron and Gummow JJ, that victims will complain at the first reasonable opportunity. The second aspect of consistency is consistency between the incident that is alleged and the terms of the complaint. That does not mean, of course, that all of the details must be in the complaint. Consistency is assessed more broadly. But, once again, the average person would put some weight, when assessing the credit of a witness, upon consistency, or the absence of it, between the contents of an early complaint and the incident the subject of the complaint.
[70] (1998) 199 LSJS 97.
This case was decided before s 34M was enacted. What is encompassed by the phrase ‘consistency of conduct’ in the context of the legislative scheme has not been the subject of specific judicial decision. While the comments of Doyle CJ are helpful in relation to the common law, it is at least arguable in my view that his comment, ‘consistency in the sense of making a complaint when one would expect a complaint to be made’ may not be appropriate under a direction given pursuant to s 34M.
Subsection (2) of s 34M specifically prohibits anyone from making a comment in a trial of a sexual offence that a ‘delay’ in making a complaint is ‘of itself of probative value in relation to the alleged victim’s credibility or consistency of conduct’. Thus directing a jury in terms of the complaint being made when one would expect it to be made may breach this prohibition. It may be that if the complaint was made at the first ‘reasonable’ opportunity that could be used in favour of a complainant. If, however, a complaint is not made when one would expect it then that cannot be used against a complainant when assessing her credibility or consistency of conduct; delay of itself cannot be the subject of comment.
I accept the evidence of C and her grandmother as to the making of the complaint as alleged by the prosecution. I reject the criticisms made of the evidence of Mrs Z. While she came across as ‘excitable’, that did not detract from my assessment of her as an honest and credible witness.
I have not overlooked the apparent conflict between Mrs Z’s evidence and that of the evidence of R, the accused’s son. He was not called but his statement was tendered. Exactly what was said between the two of them cannot be now confidently stated.
Mrs Z, at the time, was motivated to protect the family rather than her granddaughter specifically. She can, of course, now be criticised for taking that view but I accept it was a view she honestly held. I am prepared to accept the evidence of R in preference to Mrs Z. It does not make me doubt her credibility and reliability when she recounted what C told her on the shopping trip to Woolworths.
I accept C’s evidence when she said she spoke to her grandmother. Given her age at the time and her relationship with her mother at the time, the fact that she told her grandmother is understandable. The terms of the complaint are clearly referable to Count 1 on the information.
I can use the evidence, not as to the truth of the contents of the complaint, but to inform me as to how the allegations first came to light. I can also use it as evidence of the consistency of conduct of C as it was made at a time, given her age, when it could be described as at an appropriate time and that there is consistency between the incident alleged and the terms of the complaint.
I am able to use this evidence to buttress the credibility of C.
Complainant’s evidence
Count 2
The next incident C remembered in detail was during a one week period in October 2007.[71] She remembered the incident occurred in October as she went to her grandparents’ house every night of the week, with her mum, so that her mum and grandmother could work on a business they had just started up.[72]
[71] T 25, T 74.
[72] T 19.
The business was a restaurant in North Adelaide.[73]
[73] T 74.
C also remembered that this was the week she began her menstrual period.[74]
[74] T 19.
C said that her brothers did not go to her grandparents’ house during that week in October. She also said her sister and stepdad did not go.[75]
[75] T 74.
She said that her mum would have suggested that she go along to her grandparents’ house and wait and watch TV, while her mum and grandmother were ‘working on their business plans’.[76] However, C also said that she did not remember whose idea it was to go. C said that she did not recall whether she had to or did not have to go to her grandparents’ house that week but ultimately she went there with her mum.[77]
[76] T 75.
[77] T 75.
C said the first incident that occurred during that one week period in October 2007, occurred on a Monday.[78] She said she was in the accused’s TV room at her grandparents’ house. She was sitting next to the accused on the couch. The accused had his hands down the front of her pants and put his fingers inside her vagina.[79] C said she was wearing tracksuit pyjama pants.[80]
[78] T 76.
[79] T 19, T 76.
[80] T 76.
C said the accused then took his hands out the front of her pants. The accused realised there was blood on his hand and he mumbled something in Greek. C did not remember what the accused said in Greek but he appeared angry. The accused then washed his hands in the kitchen sink.[81]
[81] T 19.
C said she was really shocked at what the accused did because she had her period and there were other people in the house.[82]
[82] T 19.
Although these incidents had been occurring nonstop for the past 12 months or more, C said that every time it happened, she had this feeling that it tore her apart and she said the shock was unbelievable. This was C’s personal experience.[83] She also said that she was surprised, the type of surprise being, ‘Oh my goodness, I can’t believe it is happening again’.[84]
[83] T 76.
[84] T 77.
C said that the accused put his hands down her pants and underwear and put his fingers inside her vagina, every night of the week, during that one week period in October.[85] This happened when C was at her grandparents’ house, sitting in the TV room with the accused.[86] She did not say anything to anyone about these incidents out of fear she would get in trouble.[87] C did not recall what led her to go into the accused’s TV room, rather than the lounge room, to watch TV.[88]
[85] T 19.
[86] T 20.
[87] T 20.
[88] T 79.
C explained that she continued to go back to her grandparents’ house every night of that week and sit in the same room as the accused because she never gave anyone reason to believe what was happening. She did not want anyone to know the secret because she thought it was disgusting.[89]
[89] T 79.
Up until the point her mum found out about what was happening, C was always polite to the accused in order to ‘keep up appearances that there was nothing wrong’. If her mum told her to go and say hello and give the accused a hug and a kiss, she said that she would do so regardless of what the accused was doing to her.[90]
[90] T 79.
In the week prior to and the week after the week where C’s mum and grandmother were working on the business, C stayed at her grandparents’ house on a Friday or Saturday. Her mother was sick at the time. C’s mum was diagnosed with a pulmonary embolism and supraventricular tachycardia.[91]
[91] T 26.
C said the accused always inappropriately touched her when she stayed at her grandparents’ house. She said that this occurred at least once a week.[92]
[92] T 26.
C said she was upset during this time because she did not understand why this was happening. She was then upset more because she told her grandmother what had happened, her grandmother said that it was wrong and that a person should not do that to another person, but nothing was done about it.[93]
[93] T 71.
C said that she kept going to her grandparents’ house because she had no choice. Her mum was sick and she always had to stay with her grandparents. C said that it was not something, as a child, she had a choice of saying, ‘I don’t want to go there today’. Her mum would say to her, ‘You are going, you have to stay at yiayia’s. Don’t be silly, you are going’.[94]
[94] T 71.
C’s brothers, sister L and stepdad were home despite C’s mum being in hospital. She said that it was easier for her to go to her grandparents’ house and it was better in that it would help her family out.[95] It was easier on her stepdad as he was looking after two young boys and her sister L was also helping to look after the boys. C said that grandparents help out and that is what they are there for, ‘They are there for when something wrong happens’.[96]
[95] T 72.
[96] T 72.
C admitted that she enjoyed going to her grandparents’ house because she liked seeing her grandmother. She agreed that she could go there to watch TV and have some privacy.[97] However, she said that she had no choice to go to her grandparents’ house but at the same time it was her choice. Even if she tried to refuse to go to her grandparents’ house, she would still have to go.[98]
[97] T 72.
[98] T 72.
In relation to the business C’s mum and grandmother were working on, she did not have a very good understanding of it. She knew that in late January to early February of 2008, her mum and grandmother had a falling out. C said she never got involved in adults’ business so she did not know why her mum and grandmother had a falling out. As a result of the falling out, C’s mum and grandmother ceased talking to one another and went their separate ways.[99]
Count 3
[99] T 26.
After C’s mum and grandmother’s disagreement, C said that she stopped going to her grandparents’ house. She said that she did not see her grandmother at this time but she saw the accused because he went to the house where C was living.[100]
[100] T 27.
C was living at Holden Hill at this time. The accused usually attended at her home on Tuesdays from around 3.30 pm to 7.00 pm. Her mum was at home when the accused attended at their home but this was not the case on every occasion.[101]
[101] T 27.
C said she attended church every year during the Easter period. At or around 8.30 on Good Friday of 2008, the accused drove her from her house at Holden Hill to a church at Athelstone.[102] He drove a white, four door car. C could not remember the make or model of the car.[103]
[102] T 28.
[103] T 28.
The accused and C stayed for the service at the church. After the church service, the accused drove C to an ‘On the Run’ outlet at Newton. He bought C a Subway sandwich and then drove C home.[104]
[104] T 29.
On the drive back to C’s house, C said that the accused was driving using his right hand.[105] She was sitting in the passenger seat of the car. The accused opened her legs with his hand by using his fingers to move one thigh to one side so that there was an opening between her legs.[106] She said he reached over the handbrake and put his left hand up her dress and down her underwear and then put his fingers inside her vagina.[107]
[105] T 80.
[106] T 81.
[107] T 29, T 80.
C said that the accused had his fingers inside her vagina for a minute or so and did not remember saying anything to the accused.[108]
[108] T 29.
C said she felt disgusted by what had occurred.[109] Even though she felt disgusted and it made her feel sick, at that stage it had been happening for so long that a part of her gave up. She said, ‘You just think, “Is this going to happen?” and you just let it happen and it will just be over with, just go somewhere else, just think about something else, whatever you do you just don’t focus on what’s happening’.[110]
[109] T 29.
[110] T 81.

When the accused and C arrived back at her house, the accused made jokes to C’s mum about how C was always hungry and wanted to eat.[111]
[111] T 29.
C went straight to her room, got dressed and came back out as if nothing had happened.[112] C did not speak to anyone about the incident.[113]
Count 4
[112] T 29.
[113] T 29.
After Easter, there was a three-week period where the accused saw C every Tuesday. Every Tuesday during that three-week period, the accused picked C up from her house in Holden Hill and drove her to a gym in North Adelaide. C could not remember the name of the gym but recalled that it was next to her mum’s restaurant on O’Connell Street in North Adelaide.[114]
[114] T30-31.
C would spend an hour at the gym.[115] While C was at the gym, the accused waited at her grandmother’s restaurant next door. At that stage, her mum no longer worked at the restaurant.[116]
[115] T 31.
[116] T 85.
After her gym session the accused would drive her back home.[117]
[117] T 31.
C said the accused ‘inappropriately touched’ her when he drove her home from the gym.[118]
[118] T 31.
C said she was always scared to get into the car with the accused because she knew what was going to happen.[119] She had to sit in the front passenger seat because when she went to sit in the back seat of the car, the accused would say to her, ‘I can’t open up the door handle today’ or ‘the seat got broke’ or ‘the seatbelt got broke’ or ‘I left the window open last night’. C said the accused always had an excuse as to why she could not sit in the back seat of the car.[120]
[119] T 30.
[120] T 30.
During the first week, the accused drove C home from the gym. Using his left hand, he put his hand down the front of C’s underwear and put his fingers inside her vagina.[121]
[121] T 31.
C said she told the accused that she did not want him to do it but the accused always forcefully opened her legs.[122]
Count 5
[122] T 31.
C said that the same would occur, between her and the accused, on the second week when the accused drove her to and from the gym. On the way home from the gym, the accused forcefully put his hands down her pants and put his fingers inside her vagina. She said the accused left his hand there for about two or three minutes.[123] C could not recall anything being said on this occasion.[124]
Count 6
[123] T 31.
[124] T 31.
On the third week, the accused took the back streets of Walkerville to take C home from the gym. During the drive home, the accused stopped the car. C said that it was dark at the time. She remembered knowing that something was going to happen.[125]
[125] T 32.
The accused put his hand down the front of her pants and put his fingers inside her vagina. C said that this lasted for quite some time and, ‘It felt like forever’.[126]
[126] T 32.
She also remembered that to her left-hand side was a house with a little light. There was a reflection on the glass window and C fixated on that reflection.[127] She did not recall anything being said between her and the accused on this occasion. She did, however, remember that the accused would always tell her to smile. C said she did not smile.[128]
[127] T 32.
[128] T 32.
C said she felt alone and scared when she was in the car with the accused. She was scared that she was stuck in the car with the accused and there was nothing she could do about it.[129]
[129] T 32.
C stopped attending personal training sessions at the gym ‘because she knew what was going to happen’.[130]
Count 7
[130] T 32.
In 2008, the accused went to C’s house and told her mum that his dog had run away. He was upset over this and wanted to go to the Animal Welfare League in Wingfield. The accused had been talking about going to the Animal Welfare League for a few weeks.[131]
[131] T 33.
C’s mum told C to go with the accused to the Animal Welfare League so she did.[132] She did not want to go to the Animal Welfare League because she knew what was going to happen and she was fearful it was going to happen.[133] The only reason C went to the Animal Welfare League with the accused was because her mum told her to.[134]
[132] T 33.
[133] T 97.
[134] T 97.
C explained that she had respect for her mum, grandmother, elders and people in authority and when they asked or told her to do something, she would do it because that was the way she had been brought up.[135]
[135] T 98.
At the Animal Welfare League, the accused and C went through the kennels and looked at the dogs. C looked at the cats.[136]
[136] T 33.
C said there was a little black kitten that she thought was really fluffy and cute. She really liked the kitten and the accused suggested that he buy the kitten for her.[137]
[137] T 33.
C told the accused she did not want the cat because she had pets at home. The accused said, ‘No, don’t be stupid I’m buying you the cat, it’s a cute cat ...’ C agreed with the accused that the kitten was a cute cat.[138]
[138] T 33.
C said they filled out the paper work to purchase the cat but the whole time they were filling out the paperwork, she was thinking how much she did not want the cat.[139]
[139] T 33.
C did not recall how much the cat cost.[140]
[140] T 98.
After purchasing the cat, the accused and C got back into the accused’s car. The accused was sitting in the driver’s seat and C was sitting in the passenger seat.[141] The kitten was inside a box and it was initially on C’s lap but she then placed it on the floor of the car.[142]
[141] T 33, T 98.
[142] T 99.
C said the accused kissed her and forced his tongue into her mouth.[143]
[143] T 33.
The accused attempted to put his hands down the front of C’s pants. C did not want the accused to do that but the accused said, ‘Just a little bit more, just a little bit more’. C told the accused, ‘No’. But the accused forcefully put his hands down the front of C’s underwear and put his fingers inside her vagina.[144]
[144] T 33.
C said that she felt ‘cheap and dirty ... because it’s like he expected it from me because he bought me the cat’.[145]
Uncharged act – Paradise Church incident
[145] T 34.
Around Christmas time of December 2008, Paradise Church had a new Christmas fete and C was to attend the fete with some primary school friends.[146]
[146] T 34.
C was not part of the Paradise Church Parish but she visited the Church regularly.[147]
[147] T 34.
C was to attend the Christmas fete with her friend’s sister but her car was full. The accused offered to take C to the Christmas fete. The accused drove C to the Christmas fete. While driving to the Church, instead of turning left into the Church car park, the accused continued driving until the next set of lights and made a left turn into a back street. The accused pulled the car over and put his hands down the front of C’s pants and put his fingers into her vagina.[148]
[148] T 35.
C said that this lasted for ‘a couple of minutes’.[149]
[149] T 35.
She felt powerless and disgusted because she said the accused just took advantage of her, and he could do so at any given moment, and she had no control.[150]
[150] T 35.
C said that after the accused had finished putting his fingers inside her vagina, he pulled out his wallet and gave her $50.00. C told the accused that her mum had already given her money and she did not need it.[151]
[151] T 35.
As C got out of the car, the accused turned to the back seat and grabbed her jacket because it was cold that day. As C was walking to the church, she noticed that there was $50.00 in the front pocket of her jacket.[152]
[152] T 35.
C stayed at the church for the fete and her friend’s sister took her home.[153]
Uncharged act – Dernancourt Primary School incident
[153] T 36.
In 2009, sometime before C moved to Sydney, C travelled to Dernancourt Primary School with the accused in his car.[154]
[154] T 36.
The accused was driving a white car. C did not remember anything else in relation to the description of the car.[155]
[155] T 36.
C remembered that they made a right turn from Lyons Road onto Parsons Road and kept driving past Dernancourt Primary school. The accused took a right turn and continued driving around the block in circles. The accused did this a couple of times and C was unsure why.[156]
[156] T 37.
C said that there was a straight road before turning the bend to go right. As the accused was driving along the straight road, he put his hand down C’s pants and put his fingers into her vagina.[157]
[157] T 37.
The accused struggled to take the corner as he turned right so he took his hand out from the front of C’s pants and continued to drive to take the corner. C said the accused repeated that again; ‘He went around the block and did the same thing and then after taking that corner, we went home back to my house in Holden Hill’.[158]
[158] T 37.
C did not remember where they had been or where they were coming from on that occasion.[159]
[159] T 37.
C said that she could not comprehend what was going on and she could not believe that the accused was doing it again. She remembered that she had her menstrual period at the time.[160]
Uncharged act – Gilles Plains Shopping Centre incident
[160] T 37.
Sometime at the end of October 2009, C’s mum moved to Sydney as she was getting remarried.[161]
[161] T 38.
C stayed in Adelaide with her dad because she was young and did not want to leave her friends. C did not live with her dad for very long because she did not get along well with her step-mum.[162]
[162] T 38.
C’s grandmother knew that C was unhappy at her dad’s house so she offered for C to stay with her. C accepted her grandmother’s offer and went to stay with her grandmother and the accused.[163]
[163] T 38.
C said she went to live with her grandparents because she was older and she thought that nothing was going to happen because her grandmother and sister were there. At that point, C’s older sister, L, who was aged 20 at the time, was also living at the house.[164]
[164] T 38.
C remembered an incident occurring when she was living with her grandparents. The incident occurred just before she left to move to Sydney, which was in December 2009.[165]
[165] T 38.
Her grandmother had told her to go with the accused to the shops to get a packet of flour or something. C did as she was told and agreed to go with the accused.[166]
[166] T 95.
C travelled in the car with the accused to Gilles Plains Shopping Centre. She said, ‘Like always he put his hands down the front of my underwear and put his fingers into my vagina’.[167]
[167] T 38.
C said the accused had his hands up her clothing for ‘a couple of minutes’.[168] She did not remember any words being exchanged.[169]
[168] T 38.
[169] T 38.
C said she knew what was likely to happen when she got into the car with the accused but she said she did not expect it to happen. Specifically C said, ‘You don’t get in the car and say “hey, this is going to happen”’. C said she was surprised and shocked every time it happened.[170]
Count 8
[170] T 96.
C remembered a further incident occurring just before she left to move to Sydney in December 2009. C did not remember the exact date but that it was in the summertime because it was warm and she was wearing her school basketball shorts.[171]
[171] T 44-45.
C and the accused were travelling along North East Road from Modbury towards the city. The accused turned left down a street and as he was driving, he reached over with his hand and put his hand down the front of C’s underwear and put his fingers inside her vagina.[172]
[172] T 44.
C did not recall any words being said on that occasion but she remembered having a conversation with the accused about what he was doing to her. She did not remember when this conversation took place but remembered asking the accused, ‘Why he was doing it’ and he replied, ‘because he loved me’.[173]
Gifts from the accused
Bag with $1000
[173] T 45.
Sometime after the Paradise Church incident, C saw the accused every week.[174]
[174] T 36.
On one particular occasion, the accused was at C’s house. C was in the front room and on the computer. The accused went up to C and gave her a hug and a kiss and said hello. As he did so, he shoved a crinkled bag full of notes down C’s top.[175]
[175] T 36.
C pulled the bag out from her top and pushed it towards the accused’s chest to indicate she did not want what was in the bag. The accused told C that it was $1000.00.[176]
[176] T 36.
C gave the crinkled bag with the notes, back to the accused. The accused then went into the kitchen and spoke to C’s mum and sister. C said that afterwards, it was as if nothing had happened.[177] She also said that she did not ask for the money.[178]
[177] T 36.
[178] T 90.
C was 15 years old at the time.[179]
Sister L’s birthday - $300 and roses
[179] T 89.
In 2010, C was living with her mum, stepdad and younger brothers in Sydney. In that same year, she visited Adelaide for her sister L’s 21^st birthday. The family, including C’s mum, siblings, grandmother, uncles and the accused were present at L’s birthday celebration at Zak’s restaurant at West Lakes.[180]
[180] T 41.
After dinner at the restaurant, C was told to go back to her grandmother’s house because she was too young to go out nightclubbing. C went back to her grandmother’s house and stayed the night there in her sister L’s bedroom because there was a lock on the door. No one else stayed in the room with C on that night.[181]
[181] T 41-42.
In the morning, C left the bedroom, got dressed, went to the TV room and grabbed her bag. She realised there were rose petals, roses from the garden and $300.00 in her bag. C left straight after finding the gifts in her bag.[182]
[182] T 42.
C said the rose petals and $300.00 in cash had not been in her bag the night before.[183]
[183] T 43.
C said that she knew the gifts came from the accused because he was the only person that would give her money and flowers or rose petals secretively. C said when the accused came to her house and she or her family were not at home, he would break off a rose or a leaf and leave it in the screen door. C said that no one else did that when they visited her home.[184]
Gold chain for 16^th birthday
[184] T 43.
Just before Easter of 2011, C returned from Sydney to Adelaide for a visit.[185]
[185] T 43.
C received an 18 carat gold chain from the accused for her 16^th birthday. She said that she went to the Central Markets with the accused and her grandmother to select the gold chain.[186] C said that the gold chain was more than what the accused would usually spend on other grandchildren.[187]
Money in bank account
[186] T 93.
[187] T 50.
C said the accused would put money into her bank account.[188]
[188] T 51.
A number of Commonwealth Bank Youth Saver Account bank statements beginning from 10 August 2011 were attached to a statement made by C to police. The bank statements were shown to C who explained where deposits into the bank account came from.[189]
[189] T 51-56.
C noted on 22 March 2011, the accused made a deposit of $150.00 at the Campbelltown branch with a notation ‘Happy B day from Papou’. C said this deposit came from the accused; her birthday was on 27 March.[190]
[190] T 53.
C said a cash deposit on 16 June 2011, from the Glenelg branch, in the amount of $100.00, with a notation ‘HAPPY BIRTHDAY’, came from the accused because the Glenelg branch was next to where the accused worked. C said the accused had already given her a present, a gold chain, that year when she visited Adelaide.[191]
[191] T 53.
Bank statements showed a further cash deposit was made on 28 June 2011, in the amount of $100.00, at the Greenacres branch. C said this deposit came from the accused because the Greenacres branch was close to the accused’s house.[192]
[192] T 53-54.
A cash deposit was made on 16 December 2010, at the Glenelg branch, in the amount of $300.00, with the annotation ‘LOVE GRANDAD’. C said this deposit came from the accused.[193]
[193] T 55.
C said she did not put every amount of cash she received from the accused into the bank. She said that if she did not deposit the cash into the bank, she would shout friends if they went somewhere. C used the example that if they went to a café or to the movies, she would shout her friends. She also gave a lot of money to her friend L, because L had a very big phone bill at one stage.[194]
[194] T 56.
C said she never wanted to spend any of the money the accused gave her, on herself, because the money felt like ‘dirty guilty money’. C said the accused did horrible things to her and then gave her money and presents to justify what he had done.[195]
[195] T 56.
C said that when she made statements to police, she was merely stating that her bank statements showed there were cash deposits between those times and she was not trying to identify particular deposits made by the accused.[196]
[196] T 60.
C said she selected particular deposits to put in her statement to police as opposed to other deposits, even though those deposits were not from the accused, because she was trying to highlight different cash deposits in her bank account statements and the deposits were not singularly from the accused.[197]
Initial complaint to Ms T in relation to Counts 2, 3, 4, 5, 6, 7, 8
[197] T 62.
In 2009, C was in Year 9 at school.[198]
[198] T 46.
In or around October of that year, C had a conversation with her friend Ms T. The conversation took place in the art room at the school. C recalled Ms J also being present in the art room at the time of the conversation. Ms J was sitting with Ms T.[199]
[199] T 46-47.
The conversation between C and Ms T began with Ms T telling C about her personal experience with sexual abuse. Ms T said to C, that when she was younger, her stepbrother would play a game with her. Ms T said that she would be in bed with her stepbrother and her stepbrother would touch her vagina and put his penis inside her vagina.[200]
[200] T 48.
C then told Ms T what the accused had done to her but C did not go into any detail. C said to Ms T, ‘He had done stuff to me’. Ms T asked C, ‘Sexually?’ and C replied, ‘Yes’. Ms T then told C, ‘It wasn’t any good no matter what’ and C should tell someone.[201]
[201] T 48.
Ms T asked C if she was going to tell anyone and C said she could not tell anyone. C also told Ms T that the accused would give her gifts and money for it. Ms T said that ‘it wasn’t right’ and that C needed to tell someone.[202]
[202] T 48.
C said she felt very upset during the conversation with Ms T because she had told Ms T a secret that she had not told anyone in a very long time. It was very painful for C.[203]
[203] T 48.
C said that Ms J did not join the conversation but thinks that she would have heard what was being said. Ms J did not make any comments during the conversation.[204]
[204] T 48.
It was put to C during cross-examination that she had rung or Facebooked Ms T before speaking to Officer Malam on 4 February 2013. C said, ‘Yes, I think I had’.[205]
[205] T 133.
C recalled saying to Ms T, ‘Do you remember what happened that day in the art room?’ and Ms T said, ‘Yes’. C said she told Ms T that she reported what had happened to police and asked Ms T whether Ms T would be willing to give a statement if she gave her name to the police. Ms T said, ‘Of course she would’.[206] C said that nothing else was discussed between her and Ms T.[207]
[206] T 133.
[207] T 133.
C saw Ms T for the first time since 2009, before the end of February of this year.[208] C said they met up for a coffee at a restaurant but she did not recall the name of the restaurant.[209] C said Ms T asked her whether there would be a trial. This was all that was discussed; they did not discuss what was said in the art room.[210]
[208] T 133.
[209] T 134.
[210] T 134.
Evidence of Ms T
Initial complaint in relation to Counts 2, 3, 4, 5, 6, 7, 8
Ms T is currently 18 years old and lives in Sydney. Ms T has been living in Sydney since February of this year.[211]
[211] T 169.
She is currently studying TAFE GSC to get into university.[212]
[212] T 169.
Ms T lived in Adelaide from when she was born until February of this year.[213]
[213] T 169.
Ms T started Year 8, in 2008, at Windsor Gardens Vocational College.[214]
[214] T 169.

She met C briefly in 2008, at a school camp.[215]
[215] T 169.
Ms T said she did not become friends with C until 2009 when they shared an art class together in Year 9.[216]
[216] T 169.
Ms T said that she saw C in the yard and they shared mutual friends.[217]
[217] T 170.
Ms T gave evidence. She recalled a conversation taking place between her and C in the art room in 2009.[218]
[218] T 170.
Ms T, C and a girl named Ms J were present in the art room when the conversation took place.[219]
[219] T 170.
The conversation began on the topic of Ms T recently contacting her mother again after incidents that had happened to her when she was young.[220] Ms T then told C and Ms J about a bad experience she had as a kid. Ms T said to C and Ms J, ‘When I was young, I was abused by a family friend’.[221] Ms T said C looked really sad; she did not remember what Ms J said.[222]
[220] T 175.
[221] T 170.
[222] T 170.
C said something similar had happened to her; she said someone was abusing her but never went into details. Ms T said she and Ms J both asked C what happened. C said that she was getting money to stay quiet.[223]
[223] T 170.
Ms T asked C who was abusing her and C said, ‘Her grandfather’.[224] Ms T and Ms J told C that she should tell someone but C shrugged it off.[225]
[224] T 170.
[225] T 170.
Ms T asked C if the abuse was still happening. Ms T said C just looked away and did not answer.[226]
[226] T 171.
Ms T could not recall if Ms J had any input into the conversation.[227]
[227] T 171.
Ms T said that the conversation in the art room may have taken place about a month or two before C moved in 2009.[228] However, Ms T said that she was not exactly sure.[229]
[228] T 171.
[229] T 171.
After C moved away, Ms T kept in contact with C via Facebook but not on a regular basis.[230]
[230] T 171.
Ms T said that she caught up with C about a month and a half ago (mid February) when she was last in Adelaide. She said they went out for dinner.[231]
[231] T 171.
Ms T and C did not talk about the matter when they caught up for dinner.[232] Ms T said they just talked about when court was taking place. Ms T also asked C how she was feeling about court, confronting her grandfather and whether she was scared.[233]
[232] T 172.
[233] T 172.
Ms T said they did not discuss what was said in the art room in 2009. Ms T said she asked C a few questions such as, ‘What did you say?’ or ‘What happened?’ but C said she could not talk about it.[234]
[234] T 172.
Ms T also asked C whether Ms J was going to be a witness but C said, ‘No’.[235]
[235] T 172.
During cross-examination, it was put to Ms T that when she made a statement to police on 30 June 2012, she did not mention anything about Ms J.[236] Ms T said she did not mention Ms J because she did not think it was relevant. Ms T said she had been thinking and remembered that Ms J was present at the time of the conversation in the art room and that is when she asked C if Ms J was going to be a witness.[237]
[236] T 173.
[237] T 173.
Ms T said she was concerned for C and wanted C to get all the help she could and that it would have helped if C had told someone else or someone else knew.[238]
Telephone conversation with C
[238] T 173.
It was put to Ms T during cross-examination, that she had a telephone conversation with C before she made her police statement.[239]
[239] T 173.
Ms T did not recall having a conversation with C prior to speaking to the detective.[240] Ms T said that she recalled having a conversation with C after she spoke to the detective but she was not one hundred per cent sure.[241] However, if a telephone conversation did take place before she spoke to the detective, the telephone conversation did not have anything to do with the trial.[242]
[240] T 173.
[241] T 174.
[242] T 173.
Ms T was not sure whether the conversation in the art room was discussed during the telephone conversation with C. Ms T could only recall that C was at school and on the oval.[243]
[243] T 175.
It was put to Ms T that in her statement to police, she said, ‘This occasion in the art room was the only time I spoke to [C] about this matter until she contacted me a few weeks ago to ask if I would speak to Detective Malam about the matter’.[244] Ms T agreed that she said this in her statement to police.
[244] T 175.
Ms T said C would have said to her, ‘Do you remember what happened?’ and ‘Would you be willing to give a statement to the police?’ and would she come to court if needed.[245]
[245] T 175.
Discussion re second complaint
I accept the evidence of Ms T. I do not intend to go through the law in relation to ‘complaint’ evidence again. I refer to what I said earlier in these reasons.
The evidence of what C said to Ms T cannot amount to an elaboration of the initial complaint. There was less detail than that given to her grandmother.
It, of itself, must therefore be an initial complaint in relation to the later counts on the information.
The evidence was vague but did potentially identify the accused. Although weak, arguably it is referrable to later counts on the information. I find that the evidence is admissible and relevant to Counts 2-8 on the information. What weight can be given to the evidence is therefore a matter for me to determine.
Given the circumstances in which the complaint came about, I do not find it to be of assistance in determining the issues in the case. I do not find that this evidence assists in my assessment of the credibility of C.
Complainant’s evidence
Reporting sexual abuse
C did not report the sexual abuse to any school counsellors or teachers. She said she had told her grandmother but nothing was done so she did not see the difference in telling a teacher.[246] C was unaware there was Community Welfare services available to report to, if she was being ill treated.[247]
Other issues
C’s schooling
[246] T 109.
[247] T 109.
C described her schooling as ‘normal’, saying that she had her good days and her bad days. She described a bad day at school as being one where she would call out or not wait her turn to speak when in the classroom. She said the teachers used to say she talked back but she did not see it that way. C said teachers would ask her a rhetorical question and she did not know it was a rhetorical question.[248]
1^st Suspension at Dernancourt Primary School
[248] T 116.
C transferred to Dernancourt Primary School a year and a half after a meeting at St Martin’s Primary School.[249]
[249] T 115.
C did not remember why she was first suspended at Dernancourt Primary School. It was suggested to her that her first suspension was in August 2006 when she was 11 years old. C said that it sounded right.[250]
[250] T 118.
C was unsure how long she was suspended for.[251]
[251] T 118.
It was suggested to C in cross-examination, that one of the reasons she was suspended was because she interfered with other students’ learning and she had interrupted an excursion.[252] C recalled attending a tennis excursion and refusing to play tennis because it was hot. She remembered walking from Dernancourt Primary School down to the tennis courts on a hot day. She said no one wanted to play tennis that day. C recalled sitting down in the middle of the court and refusing to play.[253]
2^nd Suspension at Dernancourt Primary School
[252] T 118-119.
[253] T 119.
In cross-examination, it was suggested to C that she was suspended a second time, in September 2006, for showing continual disrespect of teachers. C said that it was what the teachers called it and not how she saw it. C said she did not like the teacher at the time.
C said she was never involved in any physical fights at school but she most likely would have had verbal arguments with other students.[254]
3^rd Suspension at Dernancourt Primary School
[254] T 120.
It was suggested to C in cross-examination that she was suspended again in June 2007 for not following instructions and being aggressive to staff members. C did not recall being suspended in 2007 as it was her final year of primary school and she said she had ‘the best teacher’.[255]
[255] T 120.
C said that in 2007, she was part of the choir and SRC. She was also part of a special unit in school that helped students with cerebral palsy or who were deaf.[256]
[256] T 120-121.
It was further suggested to C, in cross-examination, that a suspension conference was held where Kay Terrill, the principal of the school, and C’s father attended.[257] C did not recall this suspension conference but said that when she was suspended at school, she had re-entry meetings. These meetings would be held the day she was allowed to go back to school following suspension. C recalled that her parents would receive paperwork and she would sit outside the office and wait.[258]
4^th suspension at Dernancourt Primary School
[257] T 121.
[258] T 121.
It was suggested to C in cross-examination that she was suspended on 6 September 2007, for being rude to the principal and using a phone in school. C did not recall being suspended on this occasion.[259]
[259] T 121.
C remembered there was a meeting held on 10 September 2007 where her grandmother attended because her mum was sick at the time.[260]
[260] T 121-122.
C said the purpose of the meeting was to try and work out how she could improve her behaviour at school so that she did not get suspended again. The meetings involved making a plan to achieve desirable outcomes.[261] At no point during any re-entry meetings did she, or her grandmother, say anything about the sexual abuse that was happening to her.[262]
[261] T 123.
[262] T 127.
C said she told her grandmother about the sexual abuse and nothing was done. C thought that even if she was to tell someone what was going on, nothing would be done about it. She said she trusted a family member and they did nothing about it, so she did not know how she would be able to put her trust in someone else and tell them about the abuse that happened to her and expect them to do something about it, when nothing was done.[263]
5^th Suspension at Dernancourt Primary School
[263] T 127.
It was suggested to C during cross-examination that she was suspended on 31 October 2007 and her grandmother attended a second meeting following her suspension. C did not recall being suspended on that occasion or her grandmother attending a meeting more than once.[264]
Suspensions at Windsor Gardens Vocational College
[264] T 124.
It was put to C during cross-examination, that she was suspended from Windsor Gardens Vocational College on 1 September 2008. C did not initially remember what she was suspended for but when it was put to her that she was suspended for not doing what she was told on an excursion, C then said she remembered.[265]
[265] T 125.
C said she went on an excursion to the movies. Instead of sitting in the allocated cinema, C, along with other students, sat in the cinema next door and watched a different movie. She said that she and a group of other students were talking and being rowdy while in the cinema. A number of students got in trouble.[266]
[266] T 125.
It was suggested to C that she was also suspended on 7 August 2009, for not following school policy and interfering with the rights of others to learn and teachers to teach. C did not recall being suspended on this occasion.[267]
Exhibit D5 – Photograph of the accused and C
[267] T 125-126.
During cross-examination, C was shown a photograph of her and the accused. It was suggested to C that the photograph was taken at the accused’s 70^th birthday. C said that it was before his 70^th birthday. It was also suggested to her that the photograph was taken on the seat in the accused’s TV room and she agreed.[268]
[268] T 135.
C said that the photograph was taken by her grandmother to put into a photo frame. C disagreed that she looked happy in the photograph and said, ‘If you could false smiles happy, I was very happy there’.[269]
Exhibit D6 – Photograph and text
[269] T 136.
During cross-examination, C admitted that the photograph was posted on Facebook some years after it was taken. However, she said that she was the one that deleted it off Facebook as well.[270]
[270] T 136.
C agreed that the photograph had been posted by her grandmother. At the bottom of the photograph was a caption that read, ‘This is granddaughter spoilt by her grandad’. C said the caption was from her grandmother.[271]
[271] T 136.
At the top of Exhibit D6 was a comment that read, ‘Ewwwwww yiyia u didn’t I look like shit’. C said she did not like the photo because the accused could see her and had a photo of them together.[272] C said she also did not like the photo as it made her feel sick; it reminded her of everything.[273]
[272] T 136, T 138.
[273] T 138.
C did not know when the photograph was posted on Facebook but said the text was on February 20, 2010 at 10.23 am.[274]
[274] T 136.
C said she shared a good relationship with the accused before the abuse started.[275] She described her relationship with the accused as ‘a normal typical grandfather/granddaughter relationship’ after the abuse started.[276]
The accused’s trip to Sydney
[275] T 138.
[276] T 138.
In 2010, the accused visited C and her family in Sydney.[277]
[277] T 39, T 105.
C’s mother had invited the accused to Sydney to help in the business she was setting up.[278] The accused stayed in Sydney for a few months.[279]
[278] T 105.
[279] T 40.
The accused slept in a room, in the house, C shared with her mother, stepdad S and brothers.[280]
[280] T 40, T 105.
C said she treated the accused ‘like dirt’ because he was dirt to her at that stage.[281]
[281] T 40.
C said there was never any touching when the accused visited her in Sydney but he had tried to.[282]
[282] T 40.
C said when she was in the shower, the accused tried to walk in on her.[283] The accused tried to jiggle the handle open.[284] C said she knew it was the accused at the door because her little brothers or mother would have knocked on the door or said something; they would not have tried to storm into the bathroom.[285]
[283] T 40.
[284] T 106.
[285] T 107.
C also said when she was in her bedroom late one night the accused had tried to come into her room. C had a chair in front of her bedroom door.[286] The accused managed to open the door to C’s bedroom and that is when she screamed for him to ‘fuck off’.
Exhibit D3 – Stylised photo frame
[286] T 40.
Exhibit D3 was purchased from C’s little brothers’ primary school Father’s Day stall.[287]
[287] T 108.
C said her younger brothers got Father’s Day presents and her name may have been on the card but she did not buy Exhibit D3.[288]
[288] T 108.
C had nothing to do with the purchase of the photo frame.[289]
[289] T 108.
Incident involving the Department for Family and Youth Services
This incident formed an important part of the defence case. It will be necessary at this juncture to discuss the evidence called on behalf of the accused so as to put C’s evidence on the topic in context.
Evidence of Ms Hosking
Ms Hosking gave evidence on behalf of the accused. She had been involved in the production of what eventually became Exhibit D4. The document related to an incident that the Department investigated in 2003.
Ms Hosking’s current role is as a clinical social worker with Child and Adolescent Mental Health Service. She specialises in therapeutic work alongside children, adolescents and their families.[290]
[290] T 216.
From 2000 to 2005, Ms Hosking worked as a social worker, full-time, with Family and Youth Services. For the first four of those years, Ms Hosking was based at the Modbury office; she later moved to the Netley office. For the first two of those years, Ms Hosking was part of the intake and assessment team.[291]
[291] T 216.
As part of her duties at that time, Ms Hosking received child protection reports and undertook investigations. This often involved interviewing children and parents. It sometimes included speaking with school staff and other professionals involved with the child and family.[292]
[292] T 216.
Ms Hosking often became aware that an investigation was needed due to there being a ‘notifier’. A notifier could be a member of the public who made a report to the Child Abuse Report Line.[293]
[293] T 216.
Depending on where the child lived, the report was sent to the regional district centre of Family and Youth Services. The report then went to the intake assessment team for a decision as to how the investigation would proceed.[294]
[294] T 217.
An assessment as to how an investigation would be undertaken involved a consultation with a senior practitioner and/or supervisor. At the consultation, it would be decided who needed to be involved in the interviews; for example, the child, parents and school staff etc.[295]
[295] T 217.
Discussions also took place about who would be involved interviewing those people and whether there was a need for a strategy discussion with police. This was often the case when it came to allegations of sexual and physical abuse. There were often strategy discussions with police and Child Protection Services to gauge whether they wished to be a part of the process.[296]
[296] T 217.
At the Modbury office, when workers received an intake regarding physical and sexual abuse, a phone call would be made to police and Child Protection Services.[297]
[297] T 217.
The various stages of the investigation were documented.[298] Every effort was made by social workers, involved in investigations, to be accurate in the information they were recording.[299]
Exhibit D4 – Documents from Department of Families and Communities
[298] T 217.
[299] T 222.
Ms Hosking described Exhibit D4[300] as a ‘child protection intake’. The report identified the officer who raised the report. Generally, the officer within the Child Abuse Report Line who took the phone call would be the officer who raised the report.[301]
[300] On page 2 of Exhibit D4, under the heading ‘Concerns’, there was an entry for 6 March 2003; under the heading ‘Assessment’, there was an entry for 7 March 2003; and on page 4 under the heading ‘Investigation Action Details’, there was an entry for 7 March 2002. Ms Hosking said the entry of 7 March 2002 was not correct in context of the other dates provided on Exhibit D4; it clearly should have been 7 March 2003. Ms Hosking said that the person who made the particular entry was Ms Palmer. Ms Hosking was not the author of the document although she was involved in this particular investigation.
[301] T 218.
The intake report identifies the people involved and other background information such as whether the family had been in contact with the system before.[302]
[302] T 218.
The report identifies the specific concerns. The specific concerns included when the notifier made a report to the Child Abuse Report Line and what the notifier said they were worried about with regard to the child’s safety.[303]
[303] T 218.
The assessment area of the report was when discussions occurred regarding the next steps that would be taken.[304]
[304] T 218.
Relevance of Exhibit D4
Exhibit D4 was a child protection intake about C which was raised on 6 March 2003.
I do not intend to set out all of the details of Exhibit D4. The relevance of Exhibit D4 is that two notifiers (not disclosed) reported that C had been the subject of physical abuse by her stepfather. C had said (to the notifier) that he had whipped her with a piece of rope leaving a number of bruises on her left thigh. C’s mother was alleged to have found out about it and ‘gone off her tree’ stating that he was not to touch C.
C was also said to have told the notifier that she had once called her stepfather an idiot and then locked herself in her room. She was alleged to have said that he came after her and the door ‘came down on her’. He had also allegedly threatened to ‘get her’.
Exhibit D4, shows that Ms Hosking and Ms Palmer investigated the allegations. The investigation included interviewing C at school where she in effect confirmed (with some variation) what the Department was told by the notifiers. I will turn in more detail to the investigation later in these reasons.
C’s evidence about the incident

The incident was raised with C during the course of cross-examination.
C said she was never ill treated or abused by other adults including her previous stepdad, P.[305]
[305] T 109.
C said she could vaguely remember a meeting was held in 2003 where people from Community Welfare, and a teacher or two, were present. C recalled being eight years old at the time. She attended St Martin’s Primary School in March of 2003.[306]
[306] T 110.
C could not remember what was said at that meeting. She did not recall telling people at the meeting, that her stepfather had whipped her with a piece of rope.[307]
[307] T 111.
C said she remembered that she had bruises on her thigh because she fell off the McDonald’s playground while at a birthday party. She did not recall telling people at the meeting that the bruises were caused by her stepfather whipping her with a piece of rope.[308]
[308] T 112.
C did not recall telling people at the meeting that, at the end of 2002, her stepfather had tried to get into the bathroom when she was in there. She did not recall saying that her stepfather had pushed the bathroom door off its hinges, causing the door to fall on her, and thereby causing bruising to her back.[309]
[309] T 112.
C said her stepfather did discipline her as a child by sending her to her room if she was cheeky or naughty. She said he hit her on the bottom to discipline her but that the hitting was ‘nothing major’.[310] C did not remember telling people at the meeting that her stepfather had hit her, threatened her, sworn at her and told her to ‘shut the fuck up’ in the past.[311]
[310] T 112.
[311] T 113.
Ms Hosking’s evidence as to the Report
Ms Hosking and another worker, Ms Palmer attended C’s school to conduct an interview.[312] Ms Hosking did not have any independent recollection of the notification or interview.[313]
[312] T 219-220.
[313] T 219-220.
Ms Hosking said it was quite common, when they interviewed children, to explore whether it was appropriate to do the interview at home. But in many instances the investigations were undertaken within a school context given that sometimes concerns were regarding family members. The priority was for a child to feel safe and often that was within the school context.[314]
[314] T 220.
It was a priority for workers to have a consultation with the supervisor after the investigation. The consultation was held to discuss what information had been gathered during the interview, whether further questions needed to be asked, whether further follow-up with the child was required and what the next steps would be. The next steps often involved interviewing people concerned, who were sometimes parents and people outside of the family.[315]
[315] T 221.
There was generally an agreement between two social workers, before the interview, as to who was going to take notes and who was going to lead the interview. Ms Hosking could not recall what role she and Ms Palmer took in relation to C’s investigation. It was common that the social worker who made the notes would type the document.[316]
[316] T 222.
Ms Hosking said Ms Palmer was the person who typed up the particular section under the ‘Investigation Action Details’ for 7 March 2003.[317]
[317] T 222.
After the interview with C, C’s mother and her partner were interviewed. The results of the interview, where the allegations were strenuously denied, are contained within Exhibit D4. Again Ms Hosking did not have any independent recollection of undertaking the interview with C’s mother and C’s mother’s partner.[318] That is not intended in any way to be a criticism of her evidence. Indeed, given her workload and the number of similar type cases it would have been surprising if she did have an independent recollection. C’s mother and her partner stated that the bruising occurred when C fell off some play equipment at McDonald’s Restaurant. That is of course consistent with what C now says happened.
[318] T 222.
Exhibit D4 confirms that C did, in fact, make the allegations. She confirmed the allegations made by the ‘notifiers’.
Exhibit D4 showed that physical and emotional abuse in C’s case were not confirmed.[319]
[319] T 222.
Ms Hosking said there were several checks and balances to arrive at the conclusion that physical and emotional abuse was not confirmed. The conclusions were reached through consultation with the supervisor. The confirmations or non-confirmations were not recorded on the system without a consultation with a supervisor. Once they were typed up on the system, a supervisor or senior practitioner read through the recorded information to ensure they were satisfied with the way junior staff members had recorded it.[320]
Exhibit D11 – Formal notification to school dated 07/03/2003
[320] T 223.
Ms Hosking identified Exhibit D11 as a formal notification by the Department, to the school, of the Department’s intention to interview C at her school. Ms Hosking said, ‘In general, there would be contact made with the school beforehand’.[321]
[321] T 224.
Exhibit D11 nominated Ms Hosking and Ms Palmer as the social workers who undertook the interview.[322] Ms Hosking said Exhibit D11 was a standard document.[323]
Exhibit D12 – Fax cover to police
[322] T 224.
[323] T 224.
Ms Hosking identified Exhibit D12 as a facsimile cover sheet with her handwriting and signed by her. It may have been a fax to Mr Woolven, who, at the time, was a police officer. The fax queried whether Mr Woolven wanted to have police involvement during the investigation. The fax would most likely have been sent prior to a strategy discussion.[324]
Exhibit D9 – Letter dated 10 March from Youth Services
[324] T 225.
When an investigation was completed, it was practice for workers to give a courtesy call to the family, or sometimes a follow up in person if deemed appropriate. This was done to let the family know the outcome of the investigation. A letter was also sent to the family, clearly stating whether abuse had been confirmed or not confirmed.[325]
[325] T 225.
Ms Hosking identified Exhibit D9 as a letter sent to C’s family to conclude the investigation.[326]
[326] T 225.
Evidence of Mrs Z
Mrs Z is 64 years old. She was first married to MP whom she had two children with; M and N.[327]
[327] T 177.
Mrs Z married the accused, on 1 April 1976. They have a son together; his name is P.[328]
[328] T 178.
Mrs Z said the accused’s first wife died. The accused has three boys from his first marriage S, R and J.[329]
[329] T 178.
Mrs Z said S was eight years old, R was seven and J was between five and six years old when they came into her care.[330]
[330] T 178.
Mrs Z described the household as a happy one. The accused’s sons got on very well with Mrs Z. Mrs Z said they never called her ‘stepmother’; she was their mother from day one.[331]
[331] T 178.
When Mrs Z first married the accused, they lived in Melbourne. Her two children, M and N, lived in Adelaide.[332] M went to live with Mrs Z when she was 11 years old and N was 16 years old when he went to live with his mother.[333]
[332] T 178.
[333] T 178.
Mrs Z and the accused eventually came back to live in Adelaide. They lived at Trinity Gardens then at a house in Valley View.[334]
[334] T 178.
Mrs Z and the accused lived at the house in Valley View just after the accused’s son J got married. She could not recall the exact date.[335]
[335] T 178.
Mrs Z said she has a number of grandchildren including C.[336] C was born while she and the accused were living at Valley View.[337]
[336] T 179.
[337] T 179.
Mrs Z said all her grandchildren had a relationship with her and the accused. She said the accused was ‘very good towards all his grandchildren’ and they ‘never had any problems’.[338]
[338] T 179.
Mrs Z has separated from the accused. Since this matter has come to light, Mrs Z has been living in Sydney with her daughter M, her daughter’s two sons and husband and C.[339]
[339] T 192.
The accused’s relationship with his grandchildren
Mrs Z said there was a little bit of a difference when it came to the accused’s relationship with C as compared to his other grandchildren because his other grandchildren lived on the other side of town.[340]
[340] T 180.
Mrs Z said that at Christmas time and on their grandchildren’s birthdays, she and the accused had a rule that their grandchildren would get $50 each. When it was Christmas, sometimes it would be $100.[341]
[341] T 180.
Mrs Z said the accused was very close to C. He bought C small gifts and took her out to buy her ice-cream. Mrs Z said the accused was just a little bit different towards C.[342]
[342] T 180.
Business relationship with accused
Mrs Z said she owned snack bars with the accused; one on Waymouth Street then one at Greenacres.[343] Mrs Z and the accused also owned shops in Melbourne together.[344]
[343] T 180.
[344] T 180
Mrs Z said she went into partnership with her daughter, M. They owned a restaurant in North Adelaide. Mrs Z said the restaurant opened in Christmas of 2007.[345]
[345] T 181.
Mrs Z said the accused was guarantee at the bank for the restaurant but he never worked at the restaurant.[346]
[346] T 181.
Mrs Z also said she helped her daughter, M, out with her shop.[347] Mrs Z at the time had a snack bar in Greenacres so she helped her daughter out at the shop on the weekends.[348] Mrs Z said she helped out as much as she could because at that stage, her daughter was not well as she had a problem with her heart.[349]
[347] T 181.
[348] T 181.
[349] T 181.
Mrs Z also helped to look after M’s children. She said she looked after C and M’s two young sons. Mrs Z mainly looked after C because C was always very close to their family.[350]
C’s time at her grandparents’ house
[350] T 181.
Mrs Z said C first started spending time at her house when she was four or five years old.[351]
[351] T 181-182.
Mrs Z said C liked going to her house. C went to Mrs Z’s house on the weekends, whenever Mrs Z or the accused were not working and whenever she could.[352]
[352] T 182.
Mrs Z said C’s younger brothers were too small to go and L, C’s sister, occasionally used to go to her house but not as much as what C used to.[353]
[353] T 182.
C always stayed at her grandparents’ house on the weekends, from the time she was nine or 10 years old, up until she was a teenager.[354] C slept in Mrs Z and the accused’s bedroom and then she slept on the floor.[355] Mrs Z said C used to sleep in a little bed in between where she used to sleep.[356]
[354] T 181-182.
[355] T 182.
[356] T 181.
Mrs Z was shown Exhibit D7, a plan of the house at Valley View. Mrs Z said that bedroom 1 on Exhibit D7 was the bedroom she shared with the accused.[357]
[357] T 182.
As C grew up, she occasionally watched TV and fell asleep on the couch. Mrs Z said she would cover C up and make sure she was all right.[358] When C slept on the couch in the lounge room, Mrs Z slept in bedroom 1 (shown on Exhibit D7). Mrs Z said the area marked ‘lounge’ on Exhibit D7 was the lounge room.
Falling out with M
[358] T 181.
At the end of January to early February 2008, Mrs Z and her daughter, M, had a falling out. She said it was around the time they went into partnership for the restaurant ‘A’.[359]
[359] T 183.
Mrs Z said the falling out was when the Food and Wine Festival was on. Mrs Z and M argued and M left the business; Mrs Z stayed on.[360]
[360] T 183.
Eventually the business failed and Mrs Z went bankrupt. She filed for bankruptcy in August of that year.[361]
[361] T 183.
Mrs Z said the accused used to see M (and therefore C) after she and M had a falling out. Mrs Z would say to the accused, ‘Why do you go and see M? You know she doesn’t listen to me, you know what happened to me’. Mrs Z was very upset with the accused for visiting M. [362]
[362] T 184.
Mrs Z said she was angry with the accused because she did not want the accused going around there for reasons that she knew.[363]
[363] T 186.
Mrs Z said there were times when C was little and when M had the shop. It was after that she started trying to be careful with C and keeping an eye on her.[364]
[364] T 186.
Mrs Z did not speak to M at the time of the falling out. She said her other children supported her; they helped out at the restaurant until she went bankrupt. Mrs Z said she did not speak to M until just before M moved to Sydney.[365]
Events after the falling out with M
[365] T 184.
In 2008 when Mrs Z had the falling out with M, C was still going to her house. Mrs Z said C was 12 or 13 years old. C did not go to her house as often as what she used to because C was in high school.[366]
[366] T 184.
Mrs Z said C came past the restaurant once with the accused. Mrs Z said she was cross with C because she did not want her to. Mrs Z said C was going to a boot camp/gym next door to the restaurant.[367]
[367] T 185.
Mrs Z said she thought C came through the restaurant around that time, on two occasions.[368]
Uncharged kissing incident between the accused and C
[368] T 185.
Mrs Z recalled a time in 2004, when C was about eight or nine years old; C came running inside the house.[369]
[369] T 187.
Mrs Z said C ‘was sort of screaming and jumping around ...’[370] C said, ‘Grandfather kissed me. He kissed me on the lips’.[371] Mrs Z and M were present inside the house at the time. Mrs Z said someone else was also present but she could not remember who.[372]
[370] T 187.
[371] T 188.
[372] T 187.
Mrs Z said they all turned around and said to C, ‘Don’t be silly, Grandpa is giving you a grandfather kiss.’[373]
[373] T 187.
When C and M left the house, Mrs Z said to the accused, ‘[C] told me that you kissed her on the lips’. The accused said to Mrs Z, ‘So what’.[374] The matter was left at that.[375]
[374] T 198.
[375] T 187.
At the time Mrs Z did not tell anyone else about the kiss.[376] She said M was there when it happened.[377] This was an isolated incident. There was no suggestion that such behaviour continued. It may well have been accidental. In my view it adds little to the case.
Trip to Greece
[376] T 188, T 198.
[377] T 188.
Mrs Z said that she and the accused went overseas to Greece in November and returned just before C’s birthday, in March of the following year 2005.[378]
C’s cat
[378] T 189.
Mrs Z said she was dusting in the TV room one day. When she opened the cupboard, a piece of paper fell out. The paper was about a cat the accused had bought for C.[379]
[379] T 190.
Mrs Z confronted the accused about the cat he had bought. She said to the accused, ‘Why did you go out and buy such an expensive cat for?’ She said the cat cost nearly $300.[380] Mrs Z could not remember the exact amount the cat cost but said she knew the cat was very expensive. Mrs Z said the cat ‘was over $200’.[381]
[380] T 190.
[381] T 202.
Mrs Z was very upset with the accused about the cat.[382] The accused told Mrs Z that he had bought C a present because he loved her.[383]
C’s 16^th birthday present
[382] T 190.
[383] T 190.
For C’s 16^th birthday, C, Mrs Z and the accused went to the Central Market.[384] The accused said he was going to buy C a present, in particular a gold chain.[385]
[384] T 190.
[385] T 190.
Mrs Z, the accused and C went to a jeweller in the Central Market and saw an 18 carat gold chain. Mrs Z said the gold chain ‘must have been between 51 to 55 cm and it cost about $750’.[386] During cross-examination, it was put to Mrs Z that the accused paid $350 for the gold chain. Mrs Z said if the accused paid $350 then he paid $350 but she was told the chain was $750.[387]
[386] T 190.
[387] T 203.
Mrs Z said to the accused, ‘Why are you buying her an expensive gift like that ... do you know if you do that to one grandchild you have to do it to all the rest ... you can’t just go and buy one particular person one thing and then go and do another thing for someone else. Everyone has to be equal’.[388] The accused said to Mrs Z that C was special and that he loved her.[389]
[388] T 190.
[389] T 190.
Mrs Z was present when the necklace was bought for C.[390] The gold chain was a gift for C for her 16^th birthday from the accused and Mrs Z. But, Mrs Z said she did not pay for the chain, the accused paid for it because he had the money. She said she did not know how much money the accused was going to spend on C’s present.[391]
[390] T 190.
[391] T 203.
Mrs Z said she did not see the accused give the same type of gift to his other grandchildren.[392]
Mrs Z’s current relationship with C
[392] T 190-191.
Mrs Z said she is not as close to C as she once was.[393]
Confronting the accused
[393] T 192.
In late 2011, Mrs Z confronted the accused about C. She was at the accused’s house and she said to the accused, ‘Why ... why, would you do such things?’[394] Mrs Z said they might not have been the words she wrote down in her statement but this was the way she was saying it.[395]
[394] T 195.
[395] T 196.
Mrs Z was very upset that day. The accused said Mrs Z was mad.
Before she left the house, she said to the accused, ‘Would you have done this to your granddaughters?’ C was the accused’s step-granddaughter and there were granddaughters from the accused’s blood. Mrs Z said they were split as a family.[396]
[396] T 196.
Mrs Z said she may have confronted the accused, after the conversation with C at Woolworths, but she was not one hundred per cent sure.[397]
[397] T 197.
Mrs Z was shown her statement of 12 April 2012. She agreed that nowhere in that statement did she refer speaking to the accused about what C had told her.[398]
Exhibit D5 – Photograph of the accused and C
[398] T 197.
Mrs Z was shown Exhibit D5. She said she took the photograph and it could have been taken near the time of the accused’s 70^th birthday.[399]
[399] T 203.
It was put to Mrs Z during cross-examination that the photograph was posted on her Facebook. Mrs Z said there were lots of photographs on her Facebook and she could not remember exactly which ones were on there.[400]
Exhibit D6 – Photograph and text
[400] T 203.
Mrs Z was shown Exhibit D6. At the bottom of the photograph in Exhibit D6 was a caption which read, ‘This granddaughter spoilt by her granddad.’[401]
[401] T 204.
Mrs Z said she did not write the caption at the bottom of the photo. She said that anyone could go into her Facebook account and write whatever they wanted.[402]
Defence evidence
[402] T 204.
Evidence of Ms JZ
Background
Ms JZ gave evidence. She is currently 17 years old and attends Adelaide High School.[403]
[403] T 228.
Her grandfather is the accused. Ms JZ’s father is S. S is the accused’s son.[404]
[404] T 228.
Ms JZ spent time at her grandparents’ house when she was growing up as a child. She said she was there a couple of times a month; for birthdays, Easter or Christmas.[405] All the grandchildren, aunties and uncles attended those occasions. She described those occasions as being ‘pretty big’.[406]
[405] T 228.
[406] T 228.
When JZ said there were a fair few grandchildren; Ms JZ said C is a couple of months older than her.[407]
Character evidence
[407] T 229.
Ms JZ described the accused as being caring, friendly, nice and just what a grandfather would be.[408]
[408] T 229.
Ms JZ said she was aware of the allegations made against the accused. The allegations did not fit with the grandfather she knew. She said the accused was not like that.[409]
[409] T 229.
Prior to and after hearing the allegations made by C against the accused, Ms JZ had not heard of any similar allegations from anybody.[410]
[410] T 230.
Ms JZ still continues to visit the accused.[411] She said she loved the accused; he has always been good to her.[412]
[411] T 230.
[412] T 230.
Ms JZ said the accused never bought her a gold chain or a pet cat.[413]
[413] T 230.
Ms JZ said she stayed over at her grandparents’ house a couple of times when her parents went to a wedding. She stayed over when her parents had events on.[414]
[414] T 230.
Ms JZ did not notice any sort of special relationship between the accused and C.[415]
[415] T 230.
Discussion
I found C to be a generally reliable witness. As discussed, in relation to the complaint to her grandmother, I accept her evidence about that. Of course that is not evidence of the truth of what occurred; it is only evidence which I may use when assessing her credibility. It may be used to buttress her credibility.

A number of criticisms were made by Mr Algie SC, counsel for the accused, regarding C’s evidence. Many of the criticisms I reject. However, I find that in relation to two matters, I am unable to reject, at least as a reasonable possibility, the points made by Mr Algie.
Much was made by Mr Algie regarding the ‘mechanics’ of what is alleged to have occurred on various occasions. I do not intend to go through the submissions in relation to this topic. I reject the submissions. There was nothing in my view about her evidence that made the ‘mechanics’ implausible.
Mr Algie further submitted that her evidence about the number of times she visited her grandparents’ house during the time of the allegations is inconsistent with the occurrence of the abuse. I reject that submission. Given her age at the time of the allegations and her family circumstances at the time, I find nothing surprising about her evidence.
I also reject Mr Algie’s submission about the way in which C gave her evidence. I do not find that she was ‘reluctant’ when having to concede ground or that in some way she would be evasive in answering questions to give herself ‘thinking time’.
Indeed when she gave evidence about her ‘discipline’ problems at school, she was refreshingly frank. She admitted most of the issues although she saw them in terms of problems with the teachers rather than her behaviour. In my view, it is drawing a long bow to suggest that because she ‘stood’ her ground at school it makes her allegations of ‘compliant’ behaviour with the accused less likely to be true. The school environment and the home environment are simply not really comparable.
Mr Algie made two further submissions which in my view have merit. The first related to the question of money being paid to C by the accused; the second to the incident relating to the incident with the Department of Family and Youth Services.
In relation to the question of money, C stated that the accused ‘put money into my bank account.’[416] C had produced some bank statements and she was cross-examined about them. She identified a number of transactions unrelated to the accused. She stated that the accused would ring her and tell her that he had put money into her account. C said that the accused gave her money which she did not put into her bank account. C said that the accused gave her ‘thousands of dollars’ and ‘in some way related to the sexual abuse’[417].
[416] T 51.
[417] T 56.
C was cross-examined about a prior statement she made to the police on the 8 June 2012. She admitted signing it.
The statement to the police clearly suggests that the bank statements were produced by her to substantiate the allegation of ‘thousands of dollars’ being paid. In fact the statements do not support the allegation.
I find that C, in giving her evidence to explain the problem, was evasive and indeed in parts disingenuous. Her answers were in my view not truthful. The clear implication from her statement to the police was that the bank statements supported her version of events. The cross-examination demonstrated the contrary.
Her answers, on this topic, affect her credibility.
The matter raised, relating to the Department for Family and Youth Services, is of more concern. C said that her stepfather did not hit her, that she got on well with him and further that the bruises that were noticed by Ms Hosking came from a fall on equipment at a McDonald’s Restaurant. Her mother gave evidence consistent with that.
The evidence is clear however, that she made a complaint in March 2003 against her stepfather alleging that he hit her with a piece of rope. She is now unable to explain her report.
There are a number of possibilities in relation to that evidence. First, it may be true that her stepfather hit her and that she now does not remember. Her evidence is now consistent with the ‘family’ position that having been the position she has been told for many years. Second, she may have made a false allegation for reasons she now cannot remember and that she honestly believes that she hurt herself falling off the equipment. Thirdly, it may have been a false report, she knows it was and her evidence in court is simply disingenuous.
I do not have to entirely resolve the issue. Her mother says that she received the bruises at McDonald’s. There is no reason for me to not accept, at least as a possibility, her evidence.
The delay in this matter has led to the accused suffering from a significant forensic disadvantage. He has been restricted in what information he can obtain about this issue. In those circumstances it is appropriate that I resolve the issue in his favour. I find that, at least a reasonable possibility, that C made a false complaint against her stepfather in 2003. It involved a false complaint against a ‘step’ relative for which the authorities became involved. Whether she now remembers it or not I am unable to say. It occurred at a time when these incidents were alleged to have occurred.
However this matter, by itself, has a significant effect on my assessment of reliability, credibility and honesty. The first matter discussed above relating to the money allegedly paid by the accused also creates a problem in relation to her credibility and reliability. The two matters combined have the effect in this case of creating a reasonable doubt in my mind as to whether I can accept C’s evidence in relation to the allegations of sexual abuse.
Conclusion
This has been a very difficult matter. As mentioned I found that C’s evidence was generally reliable. Her complaint to her grandmother buttressed her credibility. The complaint to Ms T does not really assist in this case.
Against that background I have the doubts I have already expressed in relation to her evidence.
The criminal law demands proof beyond a reasonable doubt in relation to each element of each charge. Generally the allegations stand or fall together in this case. Due to the delay, the accused has suffered a significant forensic disadvantage. C’s evidence must be scrutinised with care. I have taken into account Ms J Z’s evidence of good character.
I am in the circumstances unable to say that I am satisfied beyond a reasonable doubt of C’s evidence. It is often not easy to articulate why a reasonable doubt arises on the evidence. I am unable to reject C’s evidence, but for the reasons outlined, despite the evidence of complaint, I am unable to be satisfied of the reliability and truthfulness of her evidence beyond reasonable doubt. In the circumstances of this case it fails to satisfy me to the high standard required by the criminal law.
The accused is entitled to the benefit of the doubt. I find him not guilty of all charges.