The State of Western Australia v DKA
[2021] WADC 89
•24 SEPTEMBER 2021
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- DKA [2021] WADC 89
CORAM: STAUDE DCJ
HEARD: 3-6, 9-13, 16 & 18 AUGUST 2021
DELIVERED : 24 SEPTEMBER 2021
FILE NO/S: IND 959 of 2015
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
DKA
Catchwords:
Criminal law - Trial by judge alone - Multiple counts of sexual offences against a child
Legislation:
Criminal Procedure Act 2004 (WA)
Evidence Act 1906 (WA)
Criminal Code (WA)
Result:
Verdicts of guilty on each count
Representation:
Counsel:
| The State of Western Australia | : | Ms T M Payne |
| Accused | : | Mr T F Percy QC & Ms A N Blackburn |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | D G Price & Co |
Case(s) referred to in decision(s):
Bennett v The State of Western Australia [2012] WASCA 70
DKA v The State of Western Australia [2017] WASCA 44
DKA v The State of Western Australia [2019] WASCA 123
MCA v The State of Western Australia [2019] WASCA 22
MEN v The State of Western Australia [2020] WASCA 118
MNA v The State of Western Australia [2020] WASCA 84
SMA v The State of Western Australia [2021] WASCA 51
Table of Contents
Introduction
Indictment
Trial by judge alone
Principles
Presumption of innocence
Burden of proof
Standard of proof
Verdict based on the evidence
More than one charge
Directions
Evidence of special witnesses
Credibility of witnesses
Liberato
Police interviews
Motive
Inferential reasoning
Complaint
Delay in complaint
Family violence directions
Distress
Behavioural changes
Prior inconsistent statements
Cross-admissibility
Relationship evidence
Expert evidence
Longman
Section 32 admissions
Overview
Evidence
Evidence of R
The bathtub and bedroom incidents
Myrup
Milo incident
JUMP camp incident
The Bill incident
Seeds incident
El Dorado flats incident
Complaint
Cross-examination
Re-examination
Evidence of BA
Evidence of RH
Evidence of RO
Evidence of Georgina Conway
Evidence of Tracy Hallett
Evidence of Lisa Grant
Evidence of Wendy Carol Harkness
Evidence of police officers
Evidence of DKA
Evidence of KA
Evidence of Colin Alexander Barlow
Evidence of Clive Reginald Cartledge
Evidence of Noel Bruce Blakely
Evidence of Michael Hayes
Findings
DKA's impotence
Longman factors
Delayed complaint
Malice
Castletown – bathroom and bedroom incidents
Pornography
BA
The bedroom television
What BA saw in the bedroom
Gun cabinet in the garage
Bench grinder
Bedside drawers
Handgun
Mouth cracks
Grooming behaviour
The Bill incident
Milo incident
Seeds incident
JUMP camp incident
El Dorado flats incident
Good character
Demeanour of DKA
Conclusions and verdicts
STAUDE DCJ:
Introduction
DKA is charged on indictment with 15 sexual offences alleged to have been committed against R on six occasions between 2002 and 2005. DKA has pleaded not guilty. A trial by judge alone was ordered pursuant to s 118 of the Criminal Procedure Act 2004 (WA). It is a re‑trial for the second time. The previous verdicts and the reasons for the re‑trials are irrelevant to this trial. I am aware, however, of the Court of Appeal decisions in DKA v The State of Western Australia [2017] WASCA 44 and DKA v The State of Western Australia [2019] WASCA 123 as they are published judgments. The transcript of the trial and court record identify the persons involved in this case by name. As these reasons will be published it is appropriate that the names of certain witnesses and persons referred to in the evidence be anonymised.
Indictment
The counts on the indictment are as follows. There are no counts 7 or 15:
Count 1On a date unknown between 1 January 1999 and 31 May 2000 at Castletown, DKA indecently dealt with R, a child under the age of 13 years, by rubbing his penis against her stomach and vagina area.
Count 2On the same unknown date and at the same place, DKA again indecently dealt with R, a child under the age of 13 years, by rubbing his penis against her buttocks and back area.
Count 3On the same unknown date and at the same place, DKA again indecently dealt with R, a child under the age of 13 years, by placing her hand on his penis.
Count 4On the same unknown date and at the same place, DKA again indecently dealt with R, a child under the age of 13 years, by touching her vagina with his hand.
Count 5On the same unknown date and at the same place, DKA again indecently dealt with R, a child under the age of 13 years, by sucking her breast.
Count 6On the same unknown date and at the same place, DKA sexually penetrated R, a child under the age of 13 years, by penetrating her vagina with his thumbs.
Count 8On a date unknown between 1 January 2002 and 31 December 2002 at Myrup, DKA indecently dealt with R, a child of or over the age of 13 years and under the age of 16 years, by placing her hand on his penis.
Count 9On the same unknown date and at the same place as in count 8, DKA sexually penetrated R, a child of or over the age of 13 years and under the age of 16 years, by introducing his penis into her mouth.
Count 10 On another date unknown between 1 January 2002 and 31 December 2002 at Myrup, DKA indecently dealt with R, a child of or over the age of 13 years and under the age of 16 years, by removing her clothing.
Count 11On the same unknown date and at the same place as in count 10, DKA sexually penetrated R, a child of or over the age of 13 years and under the age of 16 years, by introducing his penis into her mouth.
Count 12On another date unknown between 1 January 2002 and 31 December 2002 at Myrup, DKA sexually penetrated R, a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his tongue.
Count 13On the same unknown date and at the same place as in count 12, DKA again sexually penetrated R, a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his fingers.
Count 14On the same unknown date and at the same place as in count 12, DKA again sexually penetrated R, a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with a penis shaped object.
Count 16On another date unknown between 1 January 2002 and 31 December 2002 at Myrup, DKA indecently dealt with R, a child of or over the age of 13 years and under the age of 16 years, by placing her hand on his penis.
Count 17On a date unknown between 1 January 2002 and 31 December 2002 at Esperance, DKA sexually penetrated R without her consent, by penetrating her vagina with his penis.
And that R was a child or of over the age of 13 years and under the age of 16 years.
DKA is the father of R's stepfather RO. The issue in respect of all 15 counts is whether DKA committed the alleged act of indecent dealing or sexual penetration. It is formally admitted that R was born in August 1988, that in 1999 she turned 11 and was in Year 6 at school (under the age of 13 years), and that in 2002 she turned 14 and was in Year 9 (of or over the age of 13 years and under the age of 16 years). There is, accordingly, no dispute with respect to the age element of each of counts 1 ‑ 6 and 8 ‑ 14 and 16, or with R's age as a circumstance of aggravation in count 17.
The defence accepts that the act alleged in each count would constitute the alleged offence if it were committed, indecent dealing or sexual penetration as the case may be, and that the act of sexual penetration alleged in count 17, if committed, would have been done without consent.
While the indictment alleges six occasions of offending (in terms of separate days), counts 1 ‑ 6 are said to have been committed in the course of two incidents that are said to have occurred on the same day.
Counts 1 ‑ 6 are said to have been committed on a date unknown between 1 January 1999 and 31 May 2000 at DKA's home in Castletown. On R's evidence the alleged offences were committed when she was 10 years of age and in Year 6 at school. It is alleged that on a Tuesday evening during school term time R was staying overnight at the home of DKA and his wife KA, the parents of her stepfather RO. She was told to have a bath with DKA. It is alleged that whilst in the bath with R, DKA committed the acts described in counts 1, 2 and 3. For convenience this incident has been referred to as the 'bathroom incident'.
It is further alleged that on the same occasion, after getting out of the bath DKA wrapped a towel around R and took her into the bedroom that he shared with his wife who was in the kitchen at the time. He put her on the bed. He then committed the acts described in counts 4, 5 and 6. This has been referred to as the 'bedroom incident'.
Counts 8 ‑ 14 and 16 are said to have been committed on various dates unknown between 1 January 2002 and 31 December 2002 at Myrup, where DKA and KA lived in a granny flat behind a house occupied by R and her family. In this period R was aged 13 ‑ 14 years and was in Year 9.
On one occasion it is alleged that one evening after watching a television programme called 'The Bill' with DKA and KA, R was told by KA to go into the bedroom to kiss her grandfather goodnight. On that occasion it is alleged that DKA committed the acts described in counts 8 and 9. This has been referred to as 'The Bill incident'.
It is alleged that on a further occasion when R was at the granny flat, DKA tipped a cup of Milo on her. DKA is said to have taken R's clothes off (count 10) and watched her shower, before taking her into the bedroom where he committed count 11. This has been referred to as the 'Milo incident'.
On a further occasion when R was helping KA in the garden, she was told by KA to get some seeds from the bedroom of the granny flat. DKA was in the bedroom. He closed the curtains and positioned R on the bed where he is alleged to have committed counts 12, 13 and 14. This has been referred to as the 'seeds incident'.
On another occasion before leaving to go on a junior netball umpires camp at Kalgoorlie, R went to the granny flat. KA told her that DKA had some money for her. R went into the bedroom where it is alleged that DKA again positioned R on the bed and committed count 16. This has been referred to as the 'JUMP camp incident'. (JUMP stands for Junior Umpire Mentoring Programme.)
Count 17 is said to have been committed at flat 8 at the El Dorado flats, a property managed by DKA for his uncle, JA. DKA is alleged to have taken R to flat 8, bound her wrists and sexually penetrated her without her consent on a mattress on the floor of the vacant flat. This has been referred to as the 'El Dorado flats incident'.
Trial by judge alone
Sitting alone, I may make any findings and give any verdict that a jury could have made or given. Section 119 and s 120 of the Criminal Procedure Act apply. Section 119 provides that in a trial by a judge alone, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury. If any written or other law requires information or a warning or instruction to be given to the jury in certain circumstances; or prohibits a warning from being given to a jury in certain circumstances, the judge must take the requirement or prohibition into account if those circumstances arise in the course of the trial. Section 120(2) provides that the court's judgment must include the principles of law that have been applied and the findings of fact upon which the judge has relied.
Principles
I note the following principles for their general application to this case. The specific application of these principles will be dealt with in the fullness of these reasons.
Presumption of innocence
DKA is presumed to be innocent of the charges against him. The presumption is not removed unless the court is satisfied beyond reasonable doubt of his guilt.
Burden of proof
The burden of proof is on the prosecution throughout. DKA does not have to prove his innocence or anything else.
Standard of proof
Each element of the charged defence must be proved beyond reasonable doubt. Those words bear their natural and ordinary meaning. They denote the highest standard of proof known to the law. I may not find DKA guilty of any offence with which he is charged unless on the evidence I have seen and heard I am satisfied beyond reasonable doubt of his guilt. If I am not so satisfied DKA must be acquitted.
The counts on the indictment allege serious offences. They are denied by DKA. The State's case depends on the court's acceptance of the evidence of R. I do not have to accept everything R has said as reliable in order to decide whether I am satisfied beyond reasonable doubt of a particular count, but in a case of this kind I could not convict DKA of any offence unless I were satisfied beyond reasonable doubt that the evidence of R of the act with which he is charged is truthful.
DKA has denied the offences. I could not convict him of any offence with which he is charged unless I were satisfied that his denials could not, as a reasonable possibility, be true. If his denials, or any other evidence, gave rise to a reasonable doubt as to his guilt, it would be my duty to acquit.
Verdict based on the evidence
My verdicts must be based solely upon the evidence presented at the trial. I may not inform myself by any other means. Neither sympathy nor prejudice may play any part in my decision making. I must consider the evidence objectively and dispassionately. I may not guess or speculate about matters of which there is no evidence. The absence of evidence proves nothing.
The evidence is the testimony of the witnesses given in court, the testimony of witnesses read by consent and physical items received as exhibits. Exhibit 1 is a statement of admissions of fact made pursuant to s 32 of the Evidence Act 1906 (WA). Those facts can be taken to be proved. The court is bound to consider all of the evidence presented at trial. It is for me to decide what weight to give to the evidence.
More than one charge
There are 15 offences with which DKA has been charged in this trial. They arise from six alleged incidents. In theory there could have been six or more separate trials, but it is not practical or fair to have trials in that way. I am bound to consider and decide each charge separately. My decisions must be based on the evidence that is relevant to that count. My verdicts do not have to be the same on each charge. If I find DKA guilty of one, it does not follow that he is guilty of another. I cannot find DKA guilty of any offence unless direct evidence that he has committed that offence satisfies me beyond reasonable doubt that he did so.
Having considered all the evidence, I may find DKA guilty of all charges, some of the charges or none of them. Importantly, I must not draw any inference against DKA, or be prejudiced against him, because of the number of charges against him. My duty is to consider the evidence relevant to each charge and on the basis of that evidence determine whether DKA is guilty or not guilty.
Directions
The following directions include information, instructions, warnings and prohibitions that a jury would be given. The specific application of these directions will be addressed in the context of the issues and the evidence in due course, as indicated.
Evidence of special witnesses
R in this case was a child at the time of the alleged offending. She is now an adult. She was declared a special witness for the purposes of s 106R of the Evidence Act. Her evidence was given at the first trial from a remote room by video link and was audio-visually recorded. By virtue of s 106T her evidence was played at the trial.
Similarly, recordings of the evidence given at the first trial by R's mother RH, and her brother BA, who had also been declared special witnesses, were played at the trial. This was done without objection.
The giving of evidence of a special witness from a remote room is a routine practice of the court and no inference is to be drawn against DKA by reason of the evidence being taken in that way.
I was informed at the trial that the recorded evidence of the three special witnesses had been edited and that the edits had been approved by another judge pursuant to s 106M(1) of the Evidence Act.
Credibility of witnesses
It is for me as the judge of the facts in this case to assess the credibility of the witnesses and to decide what weight is to be given to their evidence. Credibility involves honesty, but an honest witness may have a poor memory or might otherwise be mistaken, so I am not only concerned to decide whether a witness is honest, but whether the evidence the witness gives is reliable and accurate.
In this case, the real issue is whether the evidence of R that DKA sexually abused her in the manner alleged in the indictment is truthful. The prosecution depends upon the court's acceptance of the evidence of R: hers is the only evidence of the alleged offences. It requires careful consideration. There is other evidence to consider, but the State's case depends on an acceptance of R's evidence as truthful, that is, accurate and reliable.
Deciding what evidence I accept is not an all or nothing exercise. I may accept part but not all of what a witness says. I may find that some parts of a witness's evidence are reliable and accurate and others are not.
Liberato
A Liberato direction is required in a case in which there is a real risk that the jury may be left with the impression that the evidence on which DKA relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of R suffices to establish guilt. This is such a case. Pursuant to s 119 of the Criminal Procedure Act I am bound to direct myself as follows.
In this case DKA elected to give evidence. He did not have to do so. The fact that he chose to give evidence does not in any way detract from the principles that DKA is presumed to be innocent, the burden of proof is on the State and the standard of proof is beyond reasonable doubt. DKA does not have to prove his innocence.
In his evidence DKA denied the alleged offences. Obviously, if I believed the denials of DKA, or thought that they might be true as a reasonable possibility, then I would acquit him. But it would not follow that if I did not believe him that I would convict. The question for me to consider on each charge is whether, on the basis of evidence that I do accept, the State has proved the charge against DKA beyond reasonable doubt. If DKA's evidence, or any other evidence, has given rise to a reasonable doubt, then he is entitled to an acquittal. I could not find any issue against DKA leading to a conclusion of guilt if his evidence or any other evidence gave rise to a reasonable doubt on that issue.
So, even if I rejected DKA's evidence, it would not follow without more that he should be convicted of any offence with which he has been charged. If I were not to accept DKA's exculpatory evidence and I rejected it, I would simply pay no further regard to it. With respect to each count the question would remain: on the basis of evidence that I do accept, has the State proved beyond reasonable doubt that DKA committed the offence?
The defence submitted that this direction should apply to the evidence of KA on the basis, as the defence contends, that her evidence in some respects is necessarily exculpatory. In principle, a Liberato direction can be given in relation to evidence given by a defence witness other than DKA: MEN v The State of Western Australia [2020] WASCA 118 [694]. KA's evidence in a number of respects corroborates DKA's. It goes without saying that if that evidence gave rise to a reasonable doubt as to DKA's guilt in respect of any count, I would be bound to acquit. Obviously, to the extent that the evidence is necessarily exculpatory, if I accepted it or thought that it might be true I would acquit. If I rejected it altogether, I would not convict unless, on the basis of evidence that I did accept, I was satisfied beyond reasonable doubt of guilt.
Police interviews
In his recorded police interviews in 2007 and 2015, DKA denied the allegations of sexual abuse of R. He also made admissions as to relationship and opportunity that rendered the recorded interviews admissible in the State's case. I will deal with the substance of these interviews in due course. What DKA said in the interviews is evidence that I am to consider in deciding whether or not the various counts on the indictment have been proved beyond reasonable doubt. As with his evidence, if I did not accept his exculpatory statements, I would be bound to put them to the side, as he does not have to prove his innocence. It does not follow from a rejection of his evidence that he is guilty of any offence. As I have mentioned, if his denials might possibly be true, or if his evidence, or any evidence for that matter, gives rise to a reasonable doubt, then I must acquit. Needless to say, the questions, propositions and comments of the interviewers are not evidence.
Motive
It is DKA's position that R has fabricated false complaints and that her evidence is untruthful. Both DKA and KA gave evidence that R's mother RH threatened to make false allegations of sexual abuse against DKA because she wanted him and KA to leave the property at which they were residing, and that she otherwise bore a grievance against him. I will deal with this evidence in due course. The defence does not expressly point to any motive on the part of R to invent false complaints. Nevertheless, the submissions of senior counsel tacitly suggest at least the possibility that R was infected by malice that may have motivated her allegations and her evidence in court.
I am entitled to consider whether the evidence reveals anything that might indicate R had some motive for making a false complaint and giving false evidence. As a matter of commonsense, the possible presence of something of that kind has the potential to cast doubt on the reliability of R's evidence.
In dealing with this aspect of the case, I must bear in mind that the onus rests with the prosecution. DKA is not required to prove anything. There is, therefore, no onus on DKA to point to or establish any such motive. Furthermore, while the existence or possible existence of a motive is something that is potentially relevant, the apparent absence of a motive to lie is irrelevant and cannot be taken as something which strengthens the prosecution's submission that R's evidence was truthful.
Inferential reasoning
The evidence in this case is a combination of direct evidence and circumstantial evidence. The direct evidence of the charged offences is the evidence of R. The circumstantial evidence in this case is the evidence of other witnesses of circumstances that surrounded the matters of which R gave evidence. That evidence may support or detract from the veracity of her evidence. Such evidence may be of facts from which other facts may be inferred. The facts from which an inference is sought to be drawn must be proved on the evidence to the satisfaction of the court.
Circumstantial evidence is relevant in this case to enable the court to evaluate the critical evidence of R. It provides a context within which to view her evidence. It may also explain matters that would otherwise appear curious or unlikely. It may tend to enhance or diminish the cogency of other evidence. This is the basis on which the State relies on the evidence of witnesses other than R, and the physical evidence that was tendered. In the State's case the circumstantial evidence adduced at the trial is relevant to the cogency of R's testimony, increasing the likelihood that it is true.
The State does not rely on circumstantial evidence in this case to prove guilt by inference. Nevertheless, before I could find by inference any fact which constitutes an indispensable link in a chain of reasoning towards guilt, I must be satisfied that the inference is the only rational and reasonable inference, or conclusion, that can be drawn from all the facts established by the evidence. That is because the standard of proof is beyond reasonable doubt. Each of the facts supporting that inference does not have to be proved to that standard, but if the inference is adverse to DKA, it must be the only reasonable inference open on those facts, and the facts must be such as to exclude any inference consistent with innocence. The inference or conclusion must also be reasonable. For an inference to be reasonable, it must rest upon something more than mere conjecture or speculation. The facts are not to be looked at in isolation or on a piecemeal basis. Rather, I am to consider all the facts and circumstances as a whole to determine whether the particular inference adverse to DKA is the only rational and reasonable inference that the facts would enable me to draw, and that there is no inference consistent with the innocence of DKA reasonably open on the evidence.
Complaint
The court heard evidence of the circumstances in which R first reported that DKA had touched her inappropriately. R and her stepfather RO gave evidence of this incident. According to R and RO it was in late 2003. Both R and RO were cross‑examined about what occurred on that occasion. There was also evidence adduced as to an occasion in July 2004 on which R told her mother of certain things she said DKA had done.
It is not clear from R's evidence when the last alleged occasion of sexual abuse occurred prior to her complaint to her stepfather, or to what charged offence, if any, as opposed to other conduct of DKA, the complaint would relate. She did say the abuse continued in 2003, but did not give evidence of any particular incidents in that year.
The evidence of R's statement to her stepfather in late 2003 of DKA touching her is not evidence of recent complaint that would attract the usual direction as to proof of consistency of conduct that may bolster the credibility of R. The prosecution does not rely on the evidence as such. The evidence was not objected to, and R was cross‑examined in relation to it.
Having been admitted, evidence of the timing of her complaint, the contents of her complaint and the circumstances in which it was made can be taken into account in considering R's credibility and the truthfulness of her evidence: MNA v The State of Western Australia [2020] WASCA 84. Of course, I cannot treat it as separate or additional to her evidence. It is not evidence of the charged offences. That she did complain to her parents of inappropriate conduct by DKA is admissible, and what occurred on those occasions is relevant to delayed complaint as a credibility consideration.
Delay in complaint
It was put to R and she accepted that she did not complain to anyone to whom might have done, immediately or within a short time, of DKA committing any of the acts she alleged. Although she gave evidence that sometime after the El Dorado flats incident she told her maternal grandmother GB that DKA had been 'interfering' with her, she did not otherwise complain to anyone about DKA acting inappropriately towards her until she told RO in 2003 that he had been touching her. On the evidence her complaint was non‑specific as to DKA's acts.
In her police statement signed on 13 August 2004 she detailed some of the acts charged in the indictment, but she did not specifically complain of the acts charged in counts 3, 6, 8 ‑ 11, 13, 14 or 17 until she made a second statement to the police in 2015.
It was suggested that she did not complain immediately, as she might have, to her parents or her teachers because in truth, the acts of which she later complained and of which she gave evidence did not occur. Delay in making a complaint of sexual abuse is potentially relevant to the credibility of R. Any inconsistency between the complaint eventually made, and R's evidence is also capable of bearing on an assessment of her credibility.
While it can go to R's credibility that she did not complain to anyone earlier than she did, as a matter of law, delay in making a complaint that one has been sexually abused does not necessarily indicate that the acts complained of did not occur. There may be good reasons why a child who is the victim of offences such as those alleged may not complain of them promptly. Those reasons are captured to some extent by the following statutory directions.
I will deal with R's evidence of her explanation for not complaining sooner than she did in due course. Needless to say, the defence position is that delay in complaint and inconsistencies in R's accounts impugns the credibility of her evidence generally.
Family violence directions
The prosecution has sought family violence directions pursuant to s 39D of the Evidence Act. The relevant directions are set out in s 39F. Section 39G provides that:
if a court is sitting without a jury, the court's reasoning with respect to any matter in relation to which sections 39E and 39F make provision must, to such extent as the court thinks fit, be consistent with how a jury would be directed in accordance with those sections in the particular case.
Accordingly, I direct myself, as I would a jury in this case, that it is the experience of the court that there are some general misconceptions in the community about sexual abuse within families. As a matter of law, I should be aware that:
(a)people may react differently to sexual abuse in a family context, there being no typical, proper or normal response to sexual abuse in that context;
(b)it is not uncommon for a person who has been subject to sexual abuse in a family context to stay in the family context, in particular, if R is a child;
(c)it is not uncommon for a person who has been subject to sexual abuse in a family context not to report such abuse to police or seek assistance to stop the sexual abuse, even from people whom one might otherwise expect they could have trusted; and
(d)decisions made by a person subject to sexual abuse in a family context about how to address, respond to or avoid such sexual abuse may be influenced by a variety of factors.
In this case, some of the factors that may be taken into account when considering R's response, or lack of response, to the sexual abuse she described in her evidence are, on her evidence: her age when the alleged abuse first occurred, the nature of the abuse, the period of time over which it occurred, the state of health of her mother at the material time, the apparent complicity of her grandmother in the abuse as she described it, the power imbalance between R and DKA due to the step‑grandparent/grandchild relationship, her gender and age and the disparity in strength and size between them, and threats made by DKA of harm to her and her family.
Having acknowledged those matters, I remind myself that the case must be judged on the evidence. The alleged abuse is denied. The honesty of R is squarely in issue.
Distress
In the context of his evidence of what R told him of DKA's conduct in late 2003, RO gave evidence that he observed her to be distressed: to be 'crying and shaking'. Evidence of distress is capable of corroborating a sexual assault, but it was not part of the prosecution case that it should be treated as corroborative; merely, that it may be seen to be consistent with R having been sexually abused by DKA. While, in my view, it is capable of supporting R's testimony in this way, in mind it carries negligible weight because it is of observations made of R after the period of alleged offending and the evidence as a whole does not exclude other possible causes for distress at that time.
Behavioural changes
RH gave evidence of bedwetting, crying and R's grades at school dropping in 2003 (ts 556). Evidence of a change in behaviour on the part of R that is contemporaneous with the alleged offending is admissible to explain why R made no complaint at the time, to corroborate the evidence of R and to otherwise support the credibility of R on the basis that it is consistent with the alleged offending: MCA v The State of Western Australia [2019] WASCA 22 [59]; SMA v The State of Western Australia [2021] WASCA 51 [118].
It was not the State's case that RH's evidence of R's behaviour was corroborative, but that the behavioural changes were consistent with R's evidence that she was being sexually abused. It is a matter of common human experience that trauma may cause behavioural changes, but such changes can be caused by other factors. In this case, the evidence amounted to only one remark by R's mother. R herself did not give evidence of bed‑wetting or a deterioration of her performance at school. In the circumstances, though the evidence is admissible to support R's credibility, in my mind it carries negligible weight.
There was also evidence from R that she stopped going to her grandparents' cottage in 2003 in order to avoid DKA. Her evidence in this regard is simply part of the narrative of her relationship to DKA.
Prior inconsistent statements
R and other witnesses were cross‑examined about inconsistencies between their evidence at trial and what they had said on an earlier occasion, in a statement or in evidence given previously. I will come to consider those matters in due course.
The evidence of a witness is their testimony given in the trial. What a witness said on an earlier occasion is not evidence, though a witness may affirm what they said previously making it part of their evidence. If a witness is shown to have said something on a prior occasion that is different from their evidence at trial, that is a matter that may be taken into account in my assessment of their credibility. Whether it does affect that assessment is a matter for me.
Of particular significance in this case is that in her first statement to police in 2004, R did not mention the acts the subject of counts 3 (bathtub incident), 6 (bedroom incident), 7 ‑ 11 (The Bill and Milo incidents), 13 and 14 (seeds incident) or 17 (El Dorado flats incident). I will address this inconsistency in due course.
Cross-admissibility
The State's case is that the evidence of each count shows that DKA had a tendency to gratify himself sexually by engaging with R in a sexual way. The evidence led in proof of one offence against R does not prove another. Evidence that may satisfy me of DKA's guilt of one count cannot be used in substitution for evidence of another. It would be impermissible to reason that because DKA committed one offence that he committed another. I may not find DKA guilty of any offence with which he has been charged unless I am satisfied beyond reasonable doubt by direct evidence that he did in fact commit that offence.
But if, having found that R's evidence of another count or other counts, is truthful, I were satisfied beyond reasonable doubt that DKA did have a sexual interest in R upon which he would act when the opportunity to do so arose, that finding would be capable of supporting the evidence of another count, simply on the basis that although proof that he committed one offence does not prove that he committed another, it shows that he is the sort of person who would commit such an offence, and therefore more likely to have committed the offence under consideration. That is what is meant by propensity. Whether or not it assists the State's case in this way is for me to decide.
Relationship evidence
R gave evidence of DKA sexually abusing her on 'heaps' of occasions without specifying any offences other than those that are charged in the indictment. She also gave evidence of being shown pornographic videos, being touched frequently, DKA talking to her of other sexual conduct, and DKA taking nude photographs of her. There was also evidence of DKA doting on her. The evidence is relevant to show the nature of the relationship between DKA and R. It tends to show that the acts for which DKA is charged were not isolated or random, but occurred within a particular pattern or context, so it is relevant to my assessment of the credibility of R's evidence of the alleged offences.
The evidence is relevant to explain why R had difficulty distinguishing, and recalling specific details of, the incidents to which the various counts relate, and why she did not complain to her parents earlier than she did, DKA's conduct having become normalised as result of grooming conduct and repetition. In the State's case the evidence also tends to explain how DKA gained the confidence to act in a way that, on R's evidence, became more egregious over time.
The relationship evidence is admissible for those limited purposes. It is not evidence of any of the acts charged and it is not evidence of propensity. I cannot use it to find that it is more likely that DKA committed the charged offences. Of course, if I did not accept R's evidence of those matters, that would be a factor to be considered in assessing the credibility of her evidence of the alleged offences.
Expert evidence
Dr John Spencer was called by the State to give evidence of consultations with DKA with respect to various health issues, including erectile dysfunction. Principally, his evidence was of matters of fact, the witness relying on his medical practice records to be able to testify as to those matters.
He also gave some opinion evidence. There was no objection made on the basis that he lacked expertise to do so. An expert in an area of specialised knowledge can give evidence of their opinion if they are qualified by training or experience to give an expert opinion and the facts upon which they give that opinion are proved. Expert evidence is like other evidence in that it is for the tribunal of fact to decide whether to accept it and what weight to give it.
Longman
The purpose of the following direction is to warn a jury of risks of a miscarriage of justice of which the court is aware, but the jury may not be. Even so, in my opinion I am bound by s 119 of the Criminal Procedure Act to take the requirement for a Longman warning into account if the circumstances of the case occasion it.
Because of the crucial nature in this case of the evidence of R, and because of the seriousness of the allegations made by her, I must scrutinise her evidence with special care. I must also carefully take into account that the alleged offences are said to have been committed many years ago within the period 1999 to 2003.
While some allegations were put to DKA in 2007, he was not charged until 2015, by which time further allegations had been made of which he had not previously been given notice. R's evidence was given in 2016. The passage of time is capable of eroding memory and thus puts DKA at a real disadvantage in defending the charges.
This direction applies to each count on the indictment. I must follow this direction when considering my verdict on each of them. R is, of course, the only witness against DKA as to the happening of the events alleged in the indictment. There are no independent eyewitnesses. While there has been other evidence as to occasion and opportunity, no one has confirmed or corroborated R's evidence as to the alleged offences themselves. Accordingly, as I have previously directed, the position is that in each case I must be satisfied beyond reasonable doubt of the truthfulness, that is, the honesty, accuracy and reliability, of R's evidence, before I could convict DKA of any charge.
R was a child of 10 to 14 years of age in the period in question. I will come in due course to consider her evidence and the evidence of her initial complaints (which is not evidence of the charged offences, but relevant to her credibility). I will also consider the recorded police interview of DKA in 2007 when what R described in her first police statement was put to him. No charges were made against DKA at that time. R made a further statement in 2015 and DKA was again interviewed in March that year.
While this is a case where the defence contends that R's evidence of the alleged offences is fabricated, it is still necessary for the court to direct itself, in respect of R's evidence at trial, that human memory is fallible and that the longer the delay the more opportunity there is for error and that is particularly the case for events occurring in childhood. An honest witness can be wrong in their recollection.
It is a matter of common experience that the longer a person believes something to have happened the more convinced they are that it did. This can be so even if the person is mistaken in their recollection. This direction is particularly apposite in this case where, by her own admission, there are material differences between what R initially told her parents, what she said to the police in 2004, and what she said in her evidence.
I have to bear in mind all the matters that might have an impact on the reliability of the evidence of R. I will deal with these matters in these reasons.
I also have to bear in mind that because of the delay, the evidence of R cannot be adequately tested. By reason of the delay, DKA has lost the opportunity to bring forward matters of defence and to test the evidence of R and been disadvantaged. This self‑direction is based on the experience of courts of the difficulty that accused people have in cases such as this.
Now, the State does not have to prove that the offences were committed on a specific day, but, of course, because DKA does not know the precise days on which the offences were alleged to have been committed, he is not able to give evidence of what he was doing on those days, and he is unable to call witnesses as to what may have occurred on those days. So, he is at a real disadvantage in this trial.
Now, that forensic disadvantage is actual, even if it is confined to the loss of a chance or opportunity to meet these allegations. The forensic disadvantage suffered by DKA lies in not being able adequately to test R's evidence, or being able adequately to marshal a defence.
It is DKA's position that R's evidence of the alleged offences is untruthful. Now, the usual way of testing a complainant's evidence is by reference to the surrounding circumstances and to details that while not necessarily of significance in themselves may help to indicate whether R's evidence is accurate and reliable. R has been extensively cross‑examined about the surrounding circumstances and other evidence of them has been given by DKA and other witnesses. Still, had a complaint of an offence been made immediately, or at least sooner than it was, DKA may have retained a memory, or a better memory, of the occasion on which it was alleged to have occurred, as other witnesses, such as KA may have done, and thus be able to test R's evidence to a greater extent, and to give and adduce more precise evidence in relation to it and the surrounding circumstances.
By the delay, DKA has lost the chance to undertake timely investigations that may have discovered evidence that might have contradicted R's account or confirmed his denial of the offences. Senior counsel for DKA has particularised the forensic disadvantages perceived by the defence. I will deal with those in due course.
As a matter of law, I am bound to direct myself also that due to the passage of years between the alleged offending and the matters coming to court for hearing it is very important that I consider whether the evidence of R, which is the only evidence of the alleged offences, is truthful, and whether I can safely rely upon it. I am bound to scrutinise R's evidence with special care, taking into account all matters that affect its reliability. As I have acknowledged, the way in which the matter has unfolded over time also means DKA has, to a degree, lost the means of testing certain aspects of the evidence against him.
In these circumstances, I am bound to direct myself that I could not convict DKA of any offence on the evidence of R, which is uncorroborated, unless, having scrutinised her evidence with great care, having considered the circumstances relevant to that evidence to which I have referred, and having taken full account of the risks of a miscarriage of justice to which I have adverted, I were satisfied beyond reasonable doubt as to its truth and accuracy. To do otherwise would render my verdicts unsafe.
Section 32 admissions
Exhibit 1 sets out the admissions of facts made by DKA. Section 32 of the Evidence Act renders those admissions sufficient proof of the facts without other evidence.
One of the facts admitted is DKA's conviction of an offence against R's brother BA of making a threat to unlawfully kill him by holding a rifle to his forehead and saying 'if you tell anyone what you seen of your sister earlier I'm going to shoot you and your family'.
Irrespective of the formal admission, having been convicted of the offence DKA is unable to contradict the material facts that constitute it: Bennett v The State of Western Australia [2012] WASCA 70 [43]. Those facts are incontrovertible. DKA was convicted of the offence at the trial at which the evidence of R, RH and BA was recorded. BA's evidence included his evidence of DKA's threat to kill him (ts 447). He was cross‑examined with respect to that evidence (ts 474 ‑ ts 475). I can disregard the challenge to his evidence of the threat.
Overview
R was born in August 1988. Her mother is RO. She has a younger brother BA who was born in February 1991. In June 1993 in Esperance RH met RO, the third child of DKA and his wife KA. RH and RO established a relationship. R and her family lived in Albany from 1993 to 1996 before returning to Esperance. RO went to live in Albany. In October 1996 the family returned to Esperance where RO and RH were married in March 1997. At that time they lived in Frederick Street, Nulsen a suburb of Esperance. RO had no other children and treated R and BA as his own.
Through RO, R and BA met his parents DKA and KA who also lived in Esperance. They lived not far from Castletown Primary School where R was a pupil. Although DKA and KA had visited the family in Albany, from the time they returned to Esperance R and her brother would see their step‑grandparents, DKA and KA more often. On Friday evenings DKA would often take one of them with him when he went to collect rents at a block of flats called El Dorado owned by his uncle JA. Occasionally, the two children, alone or together would stay overnight at the Castletown home. DKA and KA would treat R and BA as they would their natural grandchildren. They were called granddad and nanna.
R's maternal grandmother GB also lived in Esperance. In 1997 GB bought a block of land in Myrup, with the intention of building a residence there for herself and her daughter's family. A large shed was built on the property in which R's family lived while a house was built by RO and his father DKA with the help of friends and contractors. During this period GB lived in a caravan on the property. The family moved into the completed dwelling in 1998 shortly after R's 10th birthday.
In 1998 GB made an agreement with DKA and KA to transfer an undivided half interest in the Myrup property to them as joint tenants, in consideration, it seems, of DKA and KA contributing to the cost of the construction of the residence and of a granny flat which was built over a period of two years from mid‑1998 to May 2000. The transfer was lodged on 26 June 1998 (exhibit 28). Until the completion of the granny flat DKA and KA continued to live in their home in Castletown.
In 1998 or 1999 RH became unwell due to a condition that was diagnosed as intracranial hypertension. She required specialist treatment for which she travelled to Perth with RO. In 1999 she underwent two surgical procedures for the insertion of shunts to drain cerebrospinal fluid. RH gave evidence by reference to her diaries that she went to Perth on 9 June 1999 for the first shunt procedure, returning to Esperance on 12 June. She went to Perth again on 24 August 1999 for a mammogram and for the second shunt to be inserted. She returned to Esperance on 31 August 1999 and spent three days in hospital in Esperance.
When RH and RO were away from Esperance in 1999 R and BA were looked after by DKA and KA at their Castletown home and also by GB at Myrup. R's evidence was that on one occasion when her parents were in Perth she stayed overnight with DKA and KA at Castletown. She recalled it was a Tuesday night. On that occasion she said the bathtub and bedroom incidents, to which counts 1 ‑ 6 relate, occurred. According to R, that was the only occasion of sexual abuse at the Castletown residence.
When DKA and KA went to live in the granny flat at Myrup in May 2000, R was 11 years of age and in Year 7. R's evidence was that on various occasions thereafter DKA sexually abused her, the specific acts alleged by her being committed in 2002.
In late 2002 DKA and KA went on an extended holiday. They drove to the eastern states and then travelled from Brisbane to New Zealand on 25 December 2002 returning on 2 February 2003 to Brisbane from where they drove back to Perth.
DKA and KA continued to live at the granny flat until a date in October 2003. KA left Perth to travel to New Zealand on 3 October 2003 and returned on 23 November 2003. Sometime later, it is unclear when, DKA and KA vacated the granny flat and went to live at the El Dorado flats. They went to New Zealand again on 27 May 2004 where they lived until they returned to Esperance in 2007.
On an occasion in late 2003, R told her stepfather RO that DKA had been touching her and was 'a dirty old man'. RO did not confront his father at this time, but it appears to have been shortly afterwards that DKA and KA vacated the granny flat. DKA's evidence was that he left Myrup while KA was in New Zealand and that he did so as a result of harassment by RH.
R's mother RH was not informed of any complaint against DKA until July 2004. The police were notified on 21 July 2004 and R was interviewed by Senior Constable Dale Robinson of Esperance Police on 23 July 2004, signing her first police statement on 13 August 2004. DKA was by that time in New Zealand. No further investigation was made at the time. The prosecution does not contend that any inference against DKA can be drawn from his leaving Esperance with KA in May 2004 to go to New Zealand to live.
In January 2007, R and her family went to live in the Bunbury area. GB died on 4 February 2007. DKA and KA acquired GB's interest in the Myrup property by survivorship.
In 2007, following DKA's return to Esperance, the police contacted R who told them that she still wanted her complaints investigated. DKA was then interviewed by officers Ryan Butler and Michael Mofflin at Esperance. The acts described by R in her August 2004 statement were put to him. He denied them. No charges were laid at that time.
In 2015, R contacted the police to find out what had happened to her case. She spoke to Detective Sergeant Ben Lucas of Esperance Detectives and subsequently Detective Sergeant Robert Martin of Bunbury to whom she gave a further statement on 27 March 2015.
Consequently, DKA and KA were arrested as suspects on 31 March 2015. The Myrup house in which they were then living was searched. They were each interviewed by the police. Following the interviews, DKA was charged with offences against R. KA was not.
On 9 February 2016 R gave a further statement to the prosecutor shortly before the first trial.
Evidence
I propose to summarise the material parts of the evidence. The fact that I do not mention something that a witness said does not mean that I have not considered all the evidence. The police interviews of DKA in 2007 and 2015 are referred only to the extent that they were referred to in cross‑examination.
Evidence of R
The bathtub and bedroom incidents
R gave evidence that while she was in Years 5, 6 and 7 she would go to her grandparents' house on weekends and occasionally after school, sometimes by herself and other times with her brother. She remembered KA cultivating orchids. DKA would take her and her brother out for fish and chips. She said that DKA would give them treats and would occasionally give her pocket money. She enjoyed her visits to, and outings with, her grandparents.
She recalled a Tuesday night when she went to stay over at her grandparents' house because her mother was in Perth for an operation. Her stepfather RO had gone with her. She was unsure whether her brother BA was with her, but she recalled being in Year 6 and her teacher being a Mrs Rose.
She remembered that KA cooked butterfly pasta for dinner. She did not like it. DKA put lots of cracked pepper on his. She then recalled KA undressing her in the spare room, pulling off her school uniform. This was not a usual occurrence. KA gave her a purple coloured towel to put around her. R said she then pushed her into the bathroom and shut the door, telling her that she was having a bath with granddad. This had never occurred before. R found herself in the bathroom. DKA was in the bath. She recalls the bath being half full. There was soap in the water. She said the water was murky. DKA had an erection. She felt scared and stayed at the side of the bath. She said he lent across and pulled the towel down and helped her into the bath. She then sat in the bath water between his legs. She described DKA sitting with his head towards the shower with his feet at the tap end. His back was towards the door. She said it was the first time she had seen DKA's penis. She said it was circumcised (though she did not know that at the time). She turned around so that her back was against the wall side of the bath and her knees were against the basin side. She was cramped up with her arms around her knees in between his legs facing the basin and mirror. DKA was on her left. She recalled scraping her hip on the tap as she got into the bath. She said that DKA grabbed her and positioned her body so that her front was against the front of his body and they were touching. She said he moved her body up and down with his hands initially on the outside of her shoulders and then under her arms in what she described as the armpit area. She said he was sliding her up and down against his penis. She felt it on her stomach and her vagina.
She said she then tried to get out of the bath, but could not do so. She said that he flipped her around the other side and 'done it on my backside as well'. She said he grabbed her shoulders and rubbed her up and down against his penis. She felt his erect penis on her bottom and her back. R said that she was sitting at the end of the bath when DKA grabbed her left hand and put it around his penis holding it there with his hand and moving it up and down. He did this until he ejaculated. She said that sperm came out and went over her hand. Asked how she reacted, she said:
I was trying not to look at him at all. All I could picture was his, you know, his hands and that's what I can see now still is his - you know, his hands, but when I saw the stuff come out, that's - I felt really scared and afraid. But he kept saying to me, 'don't tell your mum. Don't tell your mum'.
She said she did not respond to any of that. She said she was numb. She could not talk. She said she remembered putting her hand back in the water and washing it.
R said that when she tried to get out of the bath after he had moved her body up and down against his penis the first time, she kneed him with her right knee into his left inner thigh. Later, when he rubbed her back against his penis she pinched him in the thigh, trying to get out of the bath. She said that when she had her hand on his penis he said 'look at me', but she did not do so. R drew a diagram of the bathroom (exhibit 4).
R said that when they got out of the bath DKA put a towel around her. She next remembered being in her grandparents' bedroom from where she could see KA in the kitchen. She said she remembered lying on the bed on her towel having been put there by DKA. He then started to dry her. He dried her vaginal area and her nipples. He then sucked on her right breast. She remembered that he said it will help them grow. He then did it again. When he was drying her vagina with the towel she felt his fingers on her vagina. After he had sucked her breasts R said he got some moisturiser from the dressing table. She recalled it having a screw top and smelling like flowers. She said it was very floral, 'like rose or lavender … more rose than lavender'. She had not used that moisturiser before. She said that he put it on his left hand and rubbed his hands together. She remembered it was his left hand because it was on the same side of her body as her right breast that he had sucked. He rubbed moisturiser on her. R said she kept her legs tight together, scared that he would touch her vagina again. She said that DKA then used his knuckles to force open her legs. He then touched her vagina with his hands using his thumbs to put moisturiser on her vagina before putting his thumbs inside her vagina. She said she felt really scared. She said it stung. It felt like it was burning.
She remembered crying in bed later that night. She also remembered DKA telling her not to tell her mother about it. She said he was stern and she was scared. She did not call out to KA during the incident although she could hear her. She was worried that KA could see her from where she was. KA did not come into the bedroom during the incident.
R said she believed this happened on a Tuesday night because on Wednesday there was 'show‑and‑tell' at school. This was her favourite day for this reason. She had forgotten her socks and remembered wearing KA's socks to school and being teased about them during her 'show‑and‑tell'. She said they were too big for her and kept falling down. They were purple and white.
Myrup
R observed DKA to keep a number of rifles in Myrup. She described a safe in the granny flat between the bedroom and bathroom doors which she described as similar to a school locker, and another in the small garage attached to the granny flat that she described as being of a colour between grey and green and to have a round dial on it that was turned in order to open the safe.
R also observed DKA to have a handgun that he showed her when she was about 12 and in Year 7. She said:
It was in the bedroom. I don't remember what I was doing with him, but I just remember the handgun and I remember him telling me if I told anyone what he had been doing to me that he would kill me with the handgun.
She described the handgun as having weld marks on it; as having been modified. She said it almost looked a bit handmade. She said that he kept the handgun wrapped in a hankie in his top drawer in the granny flat bedroom where he also kept a box with a tube of KY jelly in it.
R gave evidence that she saw pornographic magazines and movies in DKA's top drawer. She said he kept lots of things in the drawer, including his handkerchiefs. R said that she had seen at least 10 different pornographic magazines during the period that DKA lived at Myrup. She also said that she would watch pornographic videos with him. She said he had them on all the time. She said:
There was Asian girls in the movies. They were young girls with old men. I remember one particular clip they had a double-ended dildo and another clip there was a girl with stockings, like fishnet stockings in them, and it was two lesbians and she was licking the other girl out through the stockings.
She said that DKA would play a pornographic video every time she had to go into the bedroom with him. She said it would happen most times that she visited. She said she would have to say goodnight to granddad or go and give him a cuddle. KA would make her do so. R gave evidence that DKA referred to pornographic films as blue movies. She said the first time he showed her one he called it a blue movie and she also heard him talk to his friend, FC, about blue movies.
R also gave evidence that there were two occasions, six months apart, on which DKA took photographs of her in the nude. She recalled that on the first occasion she was shown a photograph of a person called Liesl. R said that DKA told her that he and Liesl had sex all the time and showed her a photograph of her that was in his wallet. R said she had seen photographs of Liesl at the house of Lavina Skipworth, a family friend of DKA and KA. She understood Liesl to be Mrs Skipworth's granddaughter, but she never met her.
R said DKA told her that he could take photographs of her with him during sex and that his friend Tracy at Camera House in Esperance would develop them. She said he then made her stand against the wall near the bathroom in the granny flat and took naked photographs of her.
The next occasion that photographs were taken occurred about six months later in the middle of 2002, prior to her 14th birthday. DKA took photographs of her at the same place. Again, she was told that they would be developed by Tracy at Camera House. R said she never saw any photographs that were taken of her.
R gave evidence of an incident when DKA tried to pin her on the bed in the granny flat and she punched him in the chest. She said that it hurt him and that he sprayed something under his tongue saying 'look what you've done'. She was aware that DKA had suffered a heart attack when he lived in Castletown. She said she hit him because she did not want to put up with it anymore. At that time she was 14.
R said that during the incidents of sexual activity at the granny flat, KA was present, though not in the bedroom. She thought there were occasions where her brother BA may have seen her with DKA. On one occasion she recalled seeing BA looking through the sliding door of the bedroom between a gap in the curtain. She recalled DKA being on top of her, but no other details. She recalled feeling panicked and scared that BA had seen something. She said that she did not want him to tell her parents. She thought that DKA would kill them because that is what he would say all the time. She said:
If I told anyone he would kill me. At the flats he said to me that he would have his bikie mates do worse than what he had just done to me.
R said that DKA threatened to hurt her brother and her parents if she told anyone. It was R's evidence that when she would go with DKA to collect rent from the flats he told her that he had a master key that opened every door. She said he also had spare keys for the units that were empty. She said he would write receipts in a small book.
R said she was often given money by DKA. She said 'He told me that I couldn't tell anyone that I was being paid'. Most of the sexual acts that she remembered occurred in 2002 when she was in Year 9.
R was questioned about the layout of the granny flat. She gave evidence that one could see the television in the bedroom from the kitchen area. She drew two sketch plans of the granny flat (exhibit 12).
Milo incident
R gave evidence that she was at the granny flat on a weekend. She was sitting at the end of the dining table. KA had placed a drink of Milo on the table. DKA was sitting at the table and 'pushed the Milo onto me.' She said she screamed as it was really hot. She said that DKA got up and stripped her down taking her pyjamas and underwear off. She said that KA and BA were present at that time. She could not recall what they were doing at the table, but remembered that they would play Yahtzee a lot and on those occasions KA would give them Milo. She described DKA tipping the Milo on her by pushing the cup towards her with the back of his hand. She said she recalled DKA stripping her down quickly. She was screaming and crying. She said he took her into the bathroom and watched her shower. He then gave her KA's dressing gown to wear and took her into his bedroom. He put pornography on the television. It was a video cassette. She said the sound was low, but she could hear it and was worried that BA would be able to do so from the dining table. She said:
We were watching the pornography. [BA] was at the table playing Yahtzee and [DKA] grabbed the back of my head. He had an erection and he forced my head onto his penis. He was moving my head up and down.
He was holding the back of her hair 'really tight against my head'. She said this went on for a few minutes. She also remembered him touching her breasts. Her grandmother's dressing gown was 'really big' on her and exposed her breasts. DKA touched one nipple then the other. This continued for about five minutes before he ejaculated in her mouth. She said she spat the ejaculate out and then went to the bathroom and washed her mouth out. On this occasion she also remembered DKA touching her vagina and putting his fingers in it. Afterwards, she remembered being in the kitchen and KA washing her clothes. She recalled it was daytime not night.
R also said that she remembered having splits at the side of her mouth that she said was from DKA forcing his penis into her mouth and tearing it. She said that happened quite regularly. She said 'I just remember always feeling like I had cold sores'. She did not see a doctor. She said her mother and GB were prone to cold sores.
JUMP camp incident
R said that when she was 13 and in Year 9 she was involved in junior umpiring for netball. One weekend in 2002 she went to Kalgoorlie for a netball umpiring camp. The junior umpire group was run by Mrs Wendy Harkness. On the Friday night, before leaving for the camp on Saturday, R went to see her grandparents. KA told her to go into the bedroom saying that there was money on the bedside table for her. She went into the bedroom where DKA was. She said that he cornered her on KA's side of the bed. She said he 'put his leg up against the bedside table and had me pressed against the table'. He was wearing boxer shorts that he pulled down. He had an erect penis. He pulled her onto the bed so that she was on her back. He then grabbed her hand and put it on his penis and moved it up and down really hard. She said she remembered him having really big hands. Her hand was grabbed 'really hard' and hurt. After a few minutes he ejaculated. She said there was sperm (semen) between her fingers. She washed her hand in the bathroom and went back out to the kitchen. KA was still there. KA then went to the bedroom and got $25 from DKA that she gave to R. R did not recall her saying anything. She went to the camp the following day.
The Bill incident
On this occasion R said that she was watching The Bill in the lounge room, sitting on a couch with KA and DKA. BA was not there. It was a weekend. She was in Year 9. She had not turned 14. She recalled the show being on at 8.30 pm on a Saturday night. After they watched The Bill she said that DKA got up and changed into his boxers and a singlet. She said that KA told her to go into the bedroom and give DKA a kiss goodnight. She went in and he was naked. She said:
He pulled me - I went around to the other side where he was laying in bed and I went to give him a cuddle on the side - like from the side of the bed. And then he grabbed his arm around and pulled me back onto the covers, so I landed, like, on my back.
R said that he 'pulled the covers back and he had an erection'. She said he grabbed her hand and put it on his penis. She also recalled that he touched her breasts and then her vagina, putting his hand down her pants. Then he forced her head onto his penis for a few minutes, using his hand to move her head up and down before ejaculating in her mouth. She recalled spitting out the ejaculate, getting up and washing her mouth out in the bathroom. She remembered going back to the house. Her stepfather was on the computer and her mother was in bed. She recalled crying to the point that she made herself sick in her bin.
Seeds incident
R gave evidence that she observed DKA to make two penis‑shaped objects in the garage next to the granny flat. She said:
I was sitting on a green stool. It had little - a white trim around the outside. It had little feet on it; like a little stool rest. My feet couldn't reach the stool rest so I was sitting on the end of the stool. And he had a workbench at the very end of his shed and he was making two penises. One was out of a green - almost see through plastic; it was like a dark green material. And the other one was wood. And he was grinding it on a little grinder that was there; it had two round bits, one was hard and one was soft, and he was making the end shape like a penis.
She said that there was a red Subaru vehicle in the garage. She described the workbench as being really small and against the wall. She said that DKA asked her if it was the right shape and size. The incident occurred on a weekend. She did not know where her parents or KA or GB were. She said DKA told her that he was going to use the objects on her.
On the occasion of the seeds incident she said that she was gardening with KA on a weekend. She was 13 and in Year 9. KA asked her to go inside and get some seeds for her. She said:
I just remember them being like a herb or like a herbie flower. They weren't like a big plant or anything.
She said that she went into the bedroom. DKA was in there wearing chequered shorts and a white singlet. She said:
He closed the curtains because they were open and then he came around to the bed, put his leg against the cupboard to stop me from going anywhere, and then I remember him putting me against the bed on my back.
He pulled down her pants and underwear. She recalled him touching her breasts and putting his tongue in her vagina:
. … He had whiskers - scratched the side of my legs. It was really hard. He put his tongue in really deep.
She said that DKA said to her 'you're ready'. She did not know what he meant. She said he then turned her around so that she was on her back on the side of the bed. Her backside towards the curtains. She remembered him putting a pink towel under her bottom. He then used one of his arms to hold down her arm and his knee to hold her waist area. She started to struggle to get away. She said he then took the green object that he made in the garage from the drawer next to him. He put lubricant on it and forced it into her vagina. It did not go in. He then put one finger in her vagina and then another. She was bleeding. She said he moved his fingers around a bit and then when he had finished he wiped them on the towel. She could see her blood. He then put the object in her vagina. She remembered it going in and out for a few minutes. R said the activity ended when she heard a noise on the veranda. She thought it was BA on his scooter or his bike. DKA stopped. She recalled putting her pants on and taking the seeds to KA outside. She said there was blood on her vagina and it was sore. DKA had wiped her vagina with the pink towel.
R said that when she left the bedroom DKA told her to tell KA she had been 'a good girl'. R said that she gave the seeds to her grandmother, but did not say anything. KA did not ask where she had been, but when she gave her the seeds she asked 'if I had a good time'. She remembered her pants being wet and having blood on them. She washed them with Napisan.
R said that there were other occasions when DKA put his finger in her vagina and would say that she was ready for him. She also said:
He once told me he took [KA's] virginity at 13 and said that I was also ready and I was at the right age.
She recalled other sexual incidents at Myrup. She said that DKA would touch her every time she went there. She would always be touched or forced to touch him at the granny flat. He would put his fingers in her vagina or get her to touch his penis or put her mouth on his penis. However, she could recall no other occasion where he inserted an object in her vagina.
R accepted that there was no mention in her 2004 statement of DKA making penises in her presence. She maintained that he did so. She said that there was a work bench at the end of the garage next to the granny flat on which there was a grinder that had two round things on it. She described one of the objects as a clear dark green product, like a plastic. She said it could have been something different, but it was like plastic and was not wood. She said that she saw DKA shape both objects with it. She firmly denied the proposition that there was no grinder in the garage.
El Dorado flats incident
R gave evidence that on Friday nights she would often go with DKA to collect rents at the El Dorado flats. Afterwards they would have fish and chips. KA would be with them. On these occasions DKA would give her pocket money.
R described an occasion that occurred about a month before her 14th birthday. She said she was only 'roughly' sure of the time period as a lot of events occurred that year. She remembered that she got her first period a week before her 14th birthday. She said it was a Sunday and that DKA said that they had to go and collect some money from the flats. KA did not go with them. She told her to have fun. DKA then drove her in his green Hyundai Elantra motor vehicle to the El Dorado flats. She said:
We got out of the car, which was usual, like, we would park and get out to go and get the rent money. Granddad got something off the back seat of the car.
She said he had a white towel, KY jelly and a singlet. She knew what was going to happen. He took her into one of the flats. She said:
I can't even remember the layout. I just remember laying on the mattress. I tried really hard not to remember but all I can see is [DKA] standing there.
R said that she remembered being on a mattress in the bedroom. It smelt like smoke and was stale. There were no sheets, blankets or pillows. She was lying on the towel. She said that DKA stuffed his singlet into her mouth. She could not breathe and was starting to cry. She felt like she was going to choke. She said that he then put a cable tie around her wrists in front of her and then put her wrists above her head. She then remembered him pulling down his shorts and putting KY jelly on his erect penis. She was wearing her favourite purple pants and some white underwear. She could not remember what shirt she was wearing but she had a maroon hoodie. DKA was wearing a yellow polo shirt with an alligator symbol on it. He put his penis in her vagina. She said 'I couldn't breathe. I kept - I kept passing out. I could smell the blood'.
She said her grandfather was holding her legs open with his hands. She thought his penis was in her vagina for five minutes, possibly 5 ‑ 10 minutes, but she could not be sure. She remembered him making noises like he was ejaculating which he did. She said she felt semen run out of her vagina. R said that he told her 'stop the act, you love it'. At this point she still had the singlet in her mouth.
He then took what she described as a Swiss army knife out of his pocket and cut the cable tie. Her next memory was standing in a cold shower with DKA standing at the door watching. She remembered blood coming out from her vagina. She was there for a long time. It was 'really cold'.
She then remembered putting her clothes on. DKA had the towel and singlet and cable ties wrapped up. She then recalled being almost at the car and he did not have the towel anymore. DKA did not collect any rent that day. R's evidence was:
You said that when you saw the towel and the singlet before you went to the unit you were feeling, was it, scared? --- Yes.
You said you knew what was going to happen? --- Yes.
And why did you keep going with granddad? --- I felt like I didn't have any other option. There was nowhere to run. There was nowhere to go. He was going to do it anyway. He would have done it - he did it - did it to me all the time.
Did you want to have sex with granddad on that occasion? --- No. Never.
Did you say to granddad that you wanted to have sex? --- No.
[R], is that the only occasion you can remember granddad putting his penis inside your vagina? --- No. I know that he did it heaps of times.
…
Do you have any other specific memories of any other incident where his penis was inside your vagina? --- No. I just have flashbacks of him being on top of me. And that's - I just remember that was always at [Myrup].
…
Are there any other occasions when a sexual incident with granddad happened at the El Dorado flats? --- No. It was the only time.
R drew a sketch diagram of the El Dorado flats and a plan of the layout of the flat where she said that count 17 was committed (exhibit 5). The flat indicated in the sketch corresponds with flat 8. The sketch depicts one bedroom.
Complaint
During 2003 R said that the abuse was ongoing but not as frequent. She recalled being touched on the odd occasion but she said 'everything started to slow down'. To avoid DKA she refused to go to the granny flat.
Towards the end of 2003 she told her stepfather about it. She did not tell her mother at that time because she was unwell. She remembered DKA and KA leaving Myrup within a day or two of a conversation that she heard between her stepfather and KA in which he accused DKA of interfering with the children.
R recalled telling her mother in April 2004 (though she later agreed it was in July 2004), and talking to the police in August 2004. About three years later she received a telephone call from a detective from Esperance who she said told her that DKA and KA had returned from New Zealand and that DKA had been arrested at the airport. He wanted to know whether she wished to continue with the case. She replied that she did. She thought that the investigation had not proceeded because DKA was out of the country. She said that within a couple of days of speaking with the detective she was approached by a man at the French bread shop on Victoria Street in Bunbury. As she went from the shop to her car, the person approached her and said that she needed to let recent matters go. She described the person as looking like a bikie with a black jacket and black pants. She said it scared her. She said that the incident held her back from pursuing the matter.
It is not the prosecution case that the person who made the threat to R was acting at the behest of DKA. Rather, the evidence goes to R's reasons for not pressing the matter of her 2004 complaint with the police.
Cross-examination
It was suggested to R in cross‑examination that when her parents were away for her mother's medical treatment she was cared for by her maternal grandmother GB who lived with the family in Myrup. R's evidence was that her and her brother's care on these occasions was shared between GB and DKA and KA.
She accepted that in her first statement to the police in 2004 she told the police that the incident had occurred on a Friday night. In her 2015 statement that she said it occurred on a Tuesday night. She said that the second statement was correct. In relation to exhibit 4 she indicated what she described as a shell soap holder on the wall over the bath about half-way between the ends. She confirmed that the tap or spout on which she scraped herself was at the end of the bath. When she was shown a picture that depicted the taps near the soap holder she said that was not how she remembered them, but she accepted that the photo shown to her depicted the bath at the Castletown house (exhibit 32).
R agreed that she made no mention in her first statement of DKA putting his hand over her hand on his penis and masturbating him in the bathtub, nor of DKA penetrating her vagina with his thumbs. She agreed that she did so deliberately. She said 'No, stupidly I was ‑ was scared of him'. She said 'I was humiliated. I was only 10 at the time they happened'. R agreed that her first account was a selective account. She said she was too scared to tell the truth. She did not accept the proposition that her 2004 statement was misleading. R also accepted that she said nothing in her first statement about DKA's penis being circumcised. She said that she was never asked about that. She agreed she did not mention scraping her hip and being bruised, being undressed from a school uniform, 'show and tell' being a favourite part of school and being laughed at for wearing her nanna's socks, or eating butterfly pasta.
In relation to her evidence that DKA ejaculated in the bathtub, R was taken to her statement in relation to the JUMP camp incident in which she had described DKA getting her to masturbate his penis to ejaculation. In that statement she said that she had never seen semen before. She accepted that she had in fact seen semen during the bathtub incident and that she lied in that respect.
Gun cabinet in the garage
BA and R both gave unequivocal evidence that there was a gun cabinet in the garage. It was an important detail of BA's account of being threatened that there was a rifle leaning against the open cabinet in the garage where that offence took place. In R's evidence it was an incidental detail that she recalled of the garage where, on her evidence, she saw DKA making two penis-shaped objects. She recalled two safes, one in the flat that looked like a locker and the other in the garage that looked handmade.
DKA maintained that he had only one firearm safe, being the one he installed in the granny flat in 2000. I have no difficulty is finding that there was such a safe. The issue that arises, and it goes to the credibility of R, is whether there was another gun cabinet in the garage. DKA, who owned seven licensed firearms at that time, gave evidence that when he lived in Castletown there was no requirement for a firearm safe. He kept his rifles in a cupboard in a locked garage. While there was no evidence that he brought that cupboard to Myrup, it does not follow from the fact that DKA installed a compliant firearm safe in the granny flat, that he did not have another receptacle for his guns elsewhere. BA's evidence supports R's evidence. R's evidence is also supported by the evidence of RH. On the other hand, RO was not sure if there was a gun cabinet in the garage. The cabinet described by R would not have been capable of being bolted to the floor of the garage which was earthen, but that does not mean it could not be used to hold guns or could not reasonably be described by her as a gun cabinet or safe, whether it held guns or not.
Bench grinder
It was BA's evidence also that there was a grinder on a bench in the garage as R described in the context of her evidence of DKA fashioning two penis shaped objects, one of which was later used to assault her. If there were no bench grinder, that finding would bear on her credibility.
DKA denied that he had a bench grinder at any time in the garage, saying that he had sold the one he had in Kalgoorlie before he went to Esperance and that he did not acquire another until 2007. And he denied making any penis‑shaped object. He said a bench grinder would not handle plastic. RO's evidence, on the other hand, was that a bench grinder could be used for any material.
I disbelieve DKA's evidence. He told the police he had a bench grinder for 40 years, but in cross‑examination he said that was a mistake. When he was asked the question by senior counsel, he admitted having a bench grinder, although he quickly corrected that statement when prompted. I accept RO's evidence that there was a bench grinder at Castletown that he used when he was repairing a motor vehicle. It is implausible that DKA, who gave evidence that he engaged in tool sharpening to make money, would have sold his bench grinder before he went to Esperance. There was no reason for him to do so. Indeed, I found the joint narrative of DKA and KA to the effect that he sold her plants and she sold his tools quite unbelievable, given that they were moving a relatively short distance. DKA tried to rationalise his position by saying that a bench grinder near an ammunition reloading bench would be a hazard. As a matter of commonsense that would only be the case if the bench grinder was used at the same time as reloading. The existence of a bench grinder is not incompatible with reloading activity in the same space.
Bedside drawers
I also reject the evidence of DKA that in the course of moving from Castletown to Myrup he sold the bedhead and bedside drawers and that he then made a pair of bedside tables with no drawers for the granny flat. On the evidence he had KA had bedside drawers at Castletown and in the Myrup house when they were arrested in 2015. They may not have been the same, but it shows a pattern. There was no reason to sell the bedroom furniture from Castletown and I am unable to find that it occurred. His evidence of making bedside tables was untrue. Each of R, RH, RO and BA gave evidence of DKA having a bedside drawer in the flat.
Handgun
Another issue taken with R's evidence was whether in fact DKA had a handgun that he threatened her with and that she recalled seeing in his bedside drawer. Her evidence was very specific. R said DKA threatened her with the gun at the end of Year 7 (2000). By that time DKA and KA were living in Myrup. Although none of the charged offences is said to have been committed in that year it was R's evidence that there were 'heaps' of incidents of abuse at Myrup. There was evidence that DKA had a deep and longstanding interest in firearms, but he said he never had a licence for a handgun and, in fact, never had one. RO never saw his father with a handgun even though they shared a common interest in shooting.
The fact that DKA never had a licence for a handgun does not make R's evidence unacceptable. R's evidence was that it had weld marks on it and looked modified and handmade. DKA admitted to some proficiency with firearms, at least to the extent of converting a rifle for RO. He said 'I built him a special rifle'. Against that background it is not implausible that DKA possessed a handmade firearm. In that respect I note that KA gave evidence that DKA had never made a handgun, but had a Russian lathe suitable for manufacturing firearms. RH's evidence was that she saw DKA with a handgun on one occasion. She was able to recognise it as such because she had some familiarity with handguns. That DKA threatened R with a handgun in the way she described is consistent with him threatening BA with a rifle.
Mouth cracks
R gave evidence of cracks at the side of her mouth that she associated with oral sex. She passed them off as cold sores. I accept that she had cracks at the sides of her mouth, but I am unable to find that the condition was due to injury from acts of oral sex. It is understandable, however, that she made that association. As a matter of commonsense it is reasonable to think that such sexual activity could well exacerbate the condition she described. Accordingly, I reject the defence contention that her evidence in relation to cracks at the sides her mouth impugns her credibility.
Grooming behaviour
R's evidence was that there were two occasions when she was photographed in the nude by DKA. She also gave evidence that DKA told her that he knew a person called Tracy who would develop the photos. Ms Hallett worked at DNR Camera House in Esperance at the material time and knew DKA as a customer. Any indecent photographs would be noticed and reported making it unlikely that DKA, if he did ever take nude photographs of anyone, would have submitted the film for developing by that firm. That Ms Hallett was employed at the DNR Camera House and knew DKA makes it likely that R was given her name by him. There is no evidence that R knew of Ms Hallett otherwise. Having found that DKA did have a sexual interest in R on which he acted, it is likely that he did photograph her as she described, albeit that no such photographs may have been developed. It is in the nature of grooming behaviour.
That R said in her 2004 statement that she had not posed for DKA does not affect my assessment of her credibility generally. She did not want it known that he had taken pictures of her. Nor does the evidence of Ms Hallett have that effect.
DKA, according to R, was shown a photograph of a person called Liesl with whom DKA said he had sex all the time and had photographed. R understood that Liesl was a granddaughter of Mrs Skipworth but did not know her. No person of that name was identified except by Lisa Grant, a granddaughter of Mrs Skipworth who said that she had a cousin called Liesl who was also a granddaughter of Mrs Skipworth. It seems that it was Ms Grant who was called Little Lisie. R's evidence was that DKA had told her about a person called Lisa or Little Lisie. My impression of her evidence was that she thought Lisa was the same person as Liesl. Again, without being concerned to be satisfied beyond reasonable doubt, I consider it likely that DKA, in grooming R for sexual activity, did tell her that he had sex with Liesl. That is not to find he did, but that he said he did. Significantly, R remembered that DKA had a picture of Liesl in his wallet that he showed her. I do not consider R is mistaken in this respect, or that she made up this detail.
Another aspect of R's evidence was that DKA told her that her grandmother was 13 when he took her virginity. Again, this is evidence that is relevant to prove grooming activity on the part of DKA. It is not in issue that KA was 14 when DKA met her and only 17 when they married. That fact lends some weight to the likelihood that DKA did in fact make that statement to R in the course of grooming her for sexual activity.
The defence has observed that there is no evidence in this case, apart from the evidence of R, of DKA having any deviant sexual interest in children such as would be shown by a prior record or the possession of child exploitation material. In my view, the absence of any other evidence of tendency has no significance.
The Bill incident
It is formally admitted that the television drama The Bill was broadcast by the ABC on Tuesday and Saturday evenings, as well as on most weekdays during the period 1 January 1999 and 31 December 2003. The Bill was a very popular series and as a matter of common knowledge ran for over 20 years. Although the subject matter of The Bill was not a matter of evidence it is a notorious fact that it was a drama set in a fictional London police station. On Tuesday and Saturday nights it was shown at 8.30 pm, a prime‑time slot.
R's evidence was that she used to watch this programme with DKA and KA in their granny flat and on such occasions DKA would usually touch her indecently on her breasts. On a particular occasion after watching the programme R said that she was told by KA to go into the bedroom and kiss her grandfather goodnight. That is the occasion when DKA is alleged to have committed the acts described in counts 8 and 9 by putting R's hand on his penis, touching her breasts and vagina and then forcing her to fellate him.
DKA denies those allegations. DKA and KA both gave evidence that R was not allowed to watch The Bill. They considered it unsuitable. The evidence of each of them in this regard was quite unbelievable. Avoiding reliance on my own experience of The Bill, I find as a matter of commonsense and experience that it would not have been broadcast regularly during the day if it were such a violent or distasteful nature that a young teenager could not safely watch it. I find that DKA and KA's evidence that they never watched The Bill with R can be safely rejected.
R said that on that occasion DKA changed into boxers and a singlet. He denied that he wore boxer shorts. DKA was not a believable historian as to what he wore in bed, telling the police on the first occasion that he wore pyjamas, and on the next, that he slept in the nude. I do not accept his evidence that he only ever wore white Y‑fronts, and never boxer shorts. Be that as it may, I do not consider that it is a point of detail that would reflect on R's credibility even if she were mistaken. I do not consider that her evidence of this incident was fabricated. I accept her evidence that DKA committed the acts described in counts 8 and 9.
R's evidence of being touched indecently by DKA every time they watched The Bill together I accept is probably exaggerated, but it is consistent with these events occurring often. In my view it is more likely to signify her inability to separate those occasions of abuse that had become routine, than an attempt to embellish her account. She remembered this particular occasion because of the abuse the followed in the bedroom. R agreed that her 2004 statement did not mention the act of sexual penetration on that occasion. She also agreed that she did not tell her stepfather of it when she returned to the house. For reasons expressed elsewhere, I do not consider that her failure to complain of such an egregious act when she was first interviewed by the police reflects on her credibility. The same goes for her not telling her stepfather of it immediately.
Milo incident
DKA and KA gave evidence of an incident were Milo was spilt on R causing KA to take her into the bathroom of the granny flat to wash her legs. Their evidence was that the Milo was lukewarm, not hot, but that R nevertheless screamed, causing her stepfather RO to come to the granny flat straight away.
R did not describe this incident in her 2004 police statement but gave evidence of an occasion when DKA deliberately spilled Milo over her before removing her clothes and taking her into the bathroom where he watched her shower (count 9). She said he then put KA's dressing gown on her and took her into his bedroom where he committed the act described in count 11. On that occasion he put a video cassette containing pornography on the bedroom television. She remembered being concerned as to whether her brother BA would hear it. Her recollection is particularly detailed. She remembered the dressing gown being big on her and exposing her breasts. She remembered going into the bathroom after the incident in the bedroom and washing her mouth out, and KA later washing her clothes.
On R's evidence, being with her brother at her grandparents' flat and drinking Milo at the kitchen table was a common event. The spillage of hot Milo on her legs causing her to scream and then to be taken to the bathroom to wash if off would have been an unusual event. It is the sort of event that would enable in my view R to distinguish a particular incident of sexual abuse, which she said there were in 'heaps'. BA gave no evidence of such an incident, although did give evidence of an occasion where DKA and R went into the bedroom where he could see them watching pornography on the television. RO did not recall an incident where he went to the granny flat after hearing R screaming, having spilled Milo on herself.
R's account of having Milo spilt on her by DKA suggests a rather unlikely way for him to create an opportunity for sexual abuse. The evidence of DKA and KA also depicts an implausible scenario: R spilling lukewarm Milo on herself and then screaming, thereby attracting her stepfather's attention. It is unlikely, in my view, that R would have reacted in that way to an accidental spillage of lukewarm Milo. I am satisfied to the required standard that there was an incident involving the spillage of Milo that resulted in R having to take off her clothes and shower before having her grandmother's dressing gown put on her and then being sexually abused by DKA. Also, I am so satisfied that the evidence of R of what occurred in the bathroom and the bedroom on that occasion is accurate and reliable. DKA and KA have tailored their evidence in relation to the Milo incident so as to bring RO into the picture in order to negate opportunity.
Seeds incident
On the evidence KA was a keen gardener. Photographs of her garden were received in evidence (exhibit 34). The issue taken with respect to R's evidence of the seeds incident is that KA would have had no cause to ask her to get seeds from her bedside table as she did not grow any plants from seeds, and in any event had a cupboard on the veranda of the granny flat in which she kept all her gardener paraphernalia. KA denies that she ever asked R to get seeds from the bedroom.
Being asked to retrieve some seeds is likely to be an accurate memory particularly as R also recalls after the incident of abuse taking the seeds to her grandmother. I accept that the main gardening interest of KA was growing ferns and orchids, neither of which she grew from seeds, but the photographs of the garden do show other garden plants in hanging baskets and pots. The evidence of DKA and KA in relation to the surrounding circumstances of this incident, as with others, was directed at negating opportunity. It told against the truthfulness of DKA, in my view, that when the police put the to him R's account of the incident he denied doing what was alleged, but did not say there were no seeds in the bedroom as he maintained at trial.
Certainly, there is a degree of implausibility about this incident as there is about the others, but when viewed against the background of the evidence as a whole, mere implausibility does not give rise to a reasonable doubt as to the truthfulness of R's testimony. It does not preclude an acceptance of her account.
On this occasion R described DKA as wearing chequered shorts, something he denied ever doing. Again, I do not accept that denial. R's account was rich in detail. She described DKA's whiskers scratching the side of her legs. She remembered a pink towel being placed under her and being penetrated by the green object that she had seen being made in the garage, and by DKA's fingers. She remembers bleeding. She recalled DKA saying the words 'you're ready'. R's evidence of these acts impressed me as being her true recollection.
She admitted not saying anything in her 2004 police statement about being penetrated by DKA's fingers, or with a penis shaped object, and she agreed that she said nothing about KY jelly. The failure of R to complain of the acts of sexual penetration in 2004 is understandable for the reasons I have given elsewhere and does not reflect adversely on her credibility.
It was also a matter of comment on behalf of the defence that in her evidence of the seeds incident she said that the incident came to an end when DKA was interrupted by a noise from outside. She did not mention this in her 2015 police statement in which she said 'I don't know why, but all of a sudden he got up and went to the toilet. I got up as soon as he left, pulled my pants up and ran outside'. Her explanation was 'I wrote there, I didn't know why. But I wrote in my statement of 2015 I remember there being an interruption'. There is an inconsistency between her 2015 statement and her evidence, but I do not consider this is material to her credibility.
JUMP camp incident
It is clear on the evidence that there was a junior umpire's camp in August 2002 as R recalls. KA recalled the occasion of R going to Kalgoorlie and agreed that she gave her $25 after which she went home. DKA denied sexually assaulting R on this or any occasion. R's evidence was that KA directed her to go into the bedroom the get money from DKA. Her evidence of this event was that DKA cornered her in the bedroom and made her masturbate him to ejaculation (count 16). She specifically remembered washing her hand in the bathroom and KA getting the money from DKA. In my view the evidence of Ms Harkness that there was indeed a junior umpire's camp at Kalgoorlie in August 2002 lends credence to R's account of the incident that occurred when she went to get her camp money from her grandparents. It is likely in my view to be a true association. My finding that R's evidence of this incident is reliable and accurate as to the commission of count 16 is supported by other findings I have made that DKA sexually abused R in the way that she described.
El Dorado flats incident
The offence that is alleged to have been committed by DKA at El Dorado flats is on its facts the most egregious offence with which he is charged as it involves a brutal act of sexual penetration without consent. It was described in awful detail by R who demonstrated more distress in recounting this incident than she had shown throughout the rest of her evidence.
The manner in which R recalled the details of the incident was consistent with it being a particularly traumatic experience against which the other occasions of abuse paled. The State's case, based on R's evidence, is that DKA purposefully took R to a vacant flat at theEl Dorado flats taking with him cable ties, one of which he used to bind her wrists, a singlet that he put in her mouth, a towel that he placed on the mattress in the flat, and a tube of KY jelly.
R's account included detailed sensory perceptions. She remembered the mattress 'smelt like smoke, and was stale'. With the singlet in her mouth she could not breathe and felt like she was going to choke. She recalled wearing purple pants and white underwear with a maroon hoodie, but she could not remember the shirt she was wearing. She remembered DKA wearing a yellow polo shirt. She said that she could smell blood and felt semen running out of her vagina. She remembered DKA using the words 'stop the act, you love it', and later standing in a cold shower with blood coming from her vagina.
A number of factual issues arose with respect to this incident. Both R and her brother had experience of regularly going to the El Dorado flats with DKA on a Friday night in order to collect rents from tenants. R's evidence was that she never went into the flats that they visited for that purpose, yet BA's recollection was of going inside the flats on some occasions. On the evidence as a whole there was no master key as such, but DKA had a set of keys to enable him to access each of the flats. R remembered being told that he had a master key. She is probably mistaken in that respect, but it does not bear on the credibility of her evidence generally. Nor does it bear on my assessment of her credibility that she gave evidence that she would receive pocket money from cash that DKA collected and that he told her on one occasion not to tell his uncle that he did so. Such issues are immaterial.
The defence position was that DKA did not commit count 17 and there was no occasion of any sexual abuse at the El Dorado flats or anywhere else.
On the description of the flat given by R it is clear that she was referring to flat 8, a two bedroom unit that according to the rent book was tenanted by a Mr Phillips whose last payment of rent was made on 9 August 2002. The rent receipt bearing that date shows that rent of $120 was paid to 16 August 2002 (exhibit 24). The documentary evidence is consistent with DKA's evidence that Mr Phillips and his family vacated flat 8 shortly after 9 August 2002 following a fire in the kitchen that made the flat unsuitable for occupation.
DKA's evidence was that the flat was cleaned immediately and there was nothing left in it. He denied that there was a mattress in the flat. His position is that the flat was occupied in June and July when R suggested the incident occurred, and that there was negligible opportunity after the flat was vacated shortly after 9 August for any offending to occur there as alleged or at all, DKA having gone to Newdegate on the weekend of 24 ‑ 25 August as the news report of his shooting success there proves.
R's evidence was that the incident occurred 'just before my 14th birthday'. Asked what she meant, she said 'Like a month or two - like, probably July, I reckon, June or July'. She recalled getting her first period a week before her birthday. She then said it was 'approximately a month'. Asked how sure she was, she said 'Roughly - there was a lot of events that year'. She recalled it was a Sunday.
It was not the State's case that the offence charged in count 17 was committed at a particular time. R did not ascribe a particular date to the incident. It was referenced only to her birthday. Yet, clearly, the offence could not have been committed as R described unless flat 8 was vacant, so to that extent the date is material. On the evidence as a whole the flat was vacant from a date shortly after 9 August and remained so for the rest of that month. While R seemed to recall the incident being a month or even two before her birthday, she was unsure about this. She was only 'roughly' sure of the time. There was opportunity for the offending to occur in August prior to her birthday even taking into account DKA's trip to Newdegate. The fact that the flat was vacant for two to three weeks before her 14th birthday is consistent with her evidence of there being nothing in the flat except a mattress. R's evidence that the mattress smelled of smoke is not inconsistent with the fire that DKA said had occurred in the flat some days after 9 August 2002. R's recollection of the shower being cold is consistent with the flat being vacant at the time.
The evidence as a whole was to the effect that the flats were let unfurnished, but that occasionally tenants left items behind that were eventually disposed of. Accordingly, in my view R's recollection of a mattress in flat 8 at the time of the incident, although it is contradicted by DKA, does not render her evidence unreliable.
Nor does the fact that R's sketch of that unit does not depict two bedrooms. Her sketch of the unit does not depict two bedrooms. R's evidence was that she remembered only the mattress on the floor and the cold shower. She did not remember the layout of the unit and rejected the suggestion that her diagram depicted a one bedroom unit.
The defence position is that it is an inaccuracy that throws doubt on the truthfulness of her account of the incident. It is not apparent that her sketch was any more than her impression of the flat, her main memories being of the mattress and the cold shower. It is a rough sketch. That it is not accurate as to the number of rooms in the flat does not in my view affect the reliability of her recollection of the incident generally.
The sexual act that was described by R involved her being bound by the wrists with a cable tie and being gagged by a singlet in her mouth. These features represent a high degree of depravity. They provide some explanation for the offence being committed in a vacant flat to which DKA had access, rather than the granny flat where, on the evidence he was able to commit less violent acts of abuse against R.
R's evidence of this incident was compelling. An acceptance of her evidence of count 17 is supported by my findings of guilt in respect of the other counts from which I conclude as a fact that DKA had a sexual interest in R on which he was prepared to act when the opportunity presented. I do not consider that the evidence that points (in the defence submission) to impossibility, improbability and implausibility stands in the way of an acceptance of R's evidence, or that it gives rise to a reasonable doubt as to guilt.
In coming to a conclusion of guilt on count 17, I have upon careful scrutiny of R's evidence and consideration of the risk of a possible miscarriage of justice due to the forensic disadvantage to DKA occasioned by delay been satisfied beyond reasonable doubt of the truthfulness of her evidence which precludes the reasonable possibility that DKA's denial is true.
Good character
It is submitted on behalf of DKA that he was, prior to his conviction of the offence of threatening BA, a person of good character, though no evidence was given of his general reputation. The absence of a criminal record does not necessarily establish good character though it is common for that nexus to be sought. In the circumstances of this case, the mere fact that DKA had no record of prior offending does not impact on my assessment of his credit, or the likelihood that he would commit the offences charged.
Demeanour of DKA
I been careful to observe DKA being interviewed on two occasions and while giving evidence. I was conscious of the fact that he had given evidence on two prior occasions. His general demeanour was consistent with his presentation in the police interviews.
He impressed me as being quite intelligent despite his lack of formal education. He appeared from his history to be resourceful and quite capable of looking after his own interests. He appeared to appreciate the import of every question he was asked, and indeed had an answer for everything put against him in the prosecution case, yet in both in the interviews and in his evidence he answered at times in a garrulous manner, often digressing from the subject of the question, resulting in a longwinded and tangential response. My impression was that he was trying to endear himself to his audience in a 'hail fellow, well‑met' fashion. Despite his claimed low back disability he appeared quite comfortable throughout his evidence and able to focus his attention appropriately.
I have not made any adverse findings on the basis solely of DKA's demeanour. But in considering the evidence as a whole, I have found much of his evidence to be untruthful. As stated earlier, his denials of the charged offences have not left me with any reasonable doubt as to his guilt.
Conclusions and verdicts
For the reasons I set out this judgment I am satisfied beyond reasonable doubt that DKA committed each of the offences charged. I have viewed R's evidence mindful of the necessity to scrutinise it with care giving consideration to those matters that might bear upon its reliability. Nothing in her presentation as a witness gave me any concern that the evidence she gave was not honestly given. There are some features of it that have brought into question the reliability of her memory of events in certain respects and there are matters about which she is or may be mistaken. There are matters about which her evidence is imprecise. There is the failure to make any timely complaint, and there are significant inconsistencies between her initial complaints as reported to her parents, her two police statements and her evidence, for which she has had to answer. Having duly considered those matters that may impugn her credibility, I find her evidence of each of the acts charged in the indictment to be accurate and reliable.
I am mindful of the serious nature of the offences charged and the risks of miscarriage of justice due to the effect of the passage of time on the evidence of R and other witnesses and the associated forensic disadvantage occasioned to the defence. I appreciate that separate verdicts are required and that the verdicts do not have to be the same.
I am satisfied beyond reasonable doubt that:
1.On a date in 1999 at his residence at Castletown, when R was aged 12, DKA indecently dealt with her in a bathtub by rubbing his penis against her stomach and vaginal area, committing count 1, by rubbing his penis against her buttocks and back area, committing count 2, and by placing her hand on his penis to masturbate him, committing count 3.
2.On the same date in the bedroom of the residence DKA indecently dealt with R by touching her vagina with his hand, committing count 4, and by sucking her breast, committing count 5, and sexually penetrated R by penetrating her vagina with his thumbs, committing count 6.
3.On a date in 2002 in the granny flat at Myrup, when R was aged 13 years, DKA indecently dealt with her by placing her hand on his penis to masturbate him, committing count 8, and on the same occasion sexually penetrated her by putting his penis in her mouth, committing count 9.
4.On another date in 2002 at the same place, when R was aged 13 or 14 years, DKA indecently dealt with her by removing her clothing, committing count 10, and sexually penetrated her by putting his penis in her mouth committing count 11.
5.On another date in 2002 at the same place, when R was aged 13 or 14 years, DKA sexually penetrated her by penetrating her vagina with his tongue, committing count 12, by putting his fingers in her vagina, committing count 13, and by penetrating her vagina with a penis shaped object, committing count 14.
6.On another date in 2002 at the same place, when R was aged 13 years, DKA indecently dealt with her by placing her hand on his penis to masturbate him, committing count 16.
7.On another date in 2002 at El Dorado flats in Esperance DKA sexually penetrated R without her consent by penetrating her vagina with his penis, committing count 17, and that she was aged 13 years.
In accordance with the findings recorded in these reasons, I find DKA guilty of each count on the indictment.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AZ
Associate to Judge Staude
23 SEPTEMBER 2021
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