The State of Western Australia v GT - [2020] WADC 65

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- GT [2020] WADC 65
CORAM:   DAVIS DCJ
HEARD:   6-17 APRIL 2020
DELIVERED          :   1 MAY 2020
PUBLISHED           :   15 MAY 2020
FILE NO/S:   IND 667 of 2018
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
GT

Catchwords:

Criminal law - Trial by judge alone - Multiple charges of sexual offending against a child - Turns on own facts

Legislation:

Criminal Code Compilation Act 1913 (WA)
Criminal Procedure Act 2004 (WA)
Evidence Act 1906 (WA)

Result:

Verdicts of not guilty and judgments of acquittal entered on counts 2, 3 and 14 on the indictment.

Verdicts of guilty and judgments of conviction entered on counts 1, 4 - 7, counts 8 ‑ 13 and counts 15 - 18 on the indictment.

Representation:

Counsel:

Applicant	:	Mr S Dworcan
Accused	:	Ms M R Barone SC

Solicitors:

Applicant	:	State Director of Public Prosecutions
Accused	:	AP Legal Pty Ltd

Case(s) referred to in decision(s):

Azarian v The State of Western Australia [2007] WASCA 249
Beverland v The State of Western Australia [2009] WASCA 2
Coates v The State of Western Australia [2009] WASCA 142
Crofts v The Queen (1996) 139 ALR 455
De Silva v The Queen [2019] HCA 48
DKA v The State of Western Australia [2017] WASCA 44
Drago v The Queen (1992) 8 WAR 488
FGC v Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Huggins v The State of Western Australia [2018] WASCA 61
Humphry v The Queen [2003] WASCA 53
JJR v The State of Western Australia [2018] WASCA 51
Johnson v The Queen [2018] HCA 48; (2018) 360 ALR 246
Liberato v The Queen (1985) 159 CLR 507
Longman v The Queen (1989) 168 CLR 79
Mansell v The State of Western Australia [2009] WASCA 140
MB v The State of Western Australia [2016] WASCA 160
McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
NTH v The State of Western Australia [2020] WASCA 22
O'Halloran v O'Byrne [1974] WAR 45
Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1
Panda v The State of Western Australia [2017] WASCA 5
R v Bauer (a pseudonym) [2018] HCA 40; (2018) 359 ALR 359
R v Carroll [2002] HCA 55; (2002) 213 CLR 635
RMD v The State of Western Australia [2017] WASCA 70
The State of Western Australia v Atherton [2009] WASCA 148
The State of Western Australia v Jackson [2019] WASCA 118
The State of Western Australia v WCM [2014] WASCA 38
Tradesman Technologies Pty Ltd v Ameduri [No 2] [2013] WASCA 252
Zoneff v The Queen (2000) 200 CLR 234

DAVIS DCJ:

The accused is charged with 18 charges of sexual offending against three different complainants.
Counts 1 to 3 concern the first complainant 'G'. He is a second cousin of the accused. Counts 1 and 2 allege that on an unknown date between 30 April and 1 July 1982, the accused unlawfully and indecently dealt with G, a child under the age of 14 years, by touching G's penis with his hand and engaging in fellatio. Count 3 is a charge of unlawful and indecent assault of G touching his penis, which is said to have occurred on a date unknown between 28 February 1987 and 1 October 1987.
Counts 4 to 7 inclusive concern the second complainant 'J'. He is also related to the accused; he is a nephew by marriage. The alleged offending against J is said to have occurred between 11 May 1999 and 13 May 2001, when J was over the age of 13 years and under the age of 16 years. Counts 4, 6 and 7 all allege an indecent dealing by the accused doing an indecent act in the presence of J, namely masturbating. Count 5 alleges an indecent dealing by the accused placing J's hand on the accused's penis.
The third complainant is the accused's daughter, 'C'. The alleged offending against her is the subject of counts 8 to 18 inclusive, all said to have occurred on various unknown dates between 30 July 2001 and 1 August 2006. There are 10 charges of sexual penetration - counts 8, 9, 10 and 15 allege that the accused penetrated C's vagina with his finger; count 16 is an allegation that the accused penetrated her vagina with his penis; counts 12, 13 and 17 allege sexual penetration by the accused introducing his penis into her mouth; and counts 14 and 18 involve the alleged penetration of C's vagina with an object or thing. There is one charge of procuring C to engage in sexual activity, count 11.
The trial of these charges took place before me, sitting as both the judge of the law and of the facts, over eight days between 6 and 17 April 2020.
For the following reasons I find the accused guilty of counts 1, 4 to 7 inclusive, counts 8 to 13 inclusive and counts 15 to 18 inclusive, and not guilty of counts 2, 3 and 14.
In these reasons, because the complainants were children at the time, I have not included any details which might lead to the identification of the complainants. This includes changing names and deleting locations or other identifying details of locations, both generally and when quoting from passages of the transcript.

General legal principles and directions

I have had regard to the principles set out in s 119 and s 120 of the Criminal Procedure Act 2004 (WA) relating to trials by judge alone. I have reminded myself of the following legal principles which apply to my consideration of this case.
The accused is presumed to be innocent of the charges brought against him.
The burden of proving each charge rests on the State of Western Australia. The accused does not have to prove anything in this trial.
The State must prove each charge beyond reasonable doubt. If there is a reasonable doubt as to whether the accused is guilty of one or more of the charges, then it is my duty to acquit him on such charge or charges upon which I have such a reasonable doubt.
There are 18 offences with which the accused has been charged in this trial. I must not draw any inference against the accused or make any conclusion against him or be prejudiced against him because there is more than one charge. I must determine each charge separately, based on the evidence relevant to each charge. My verdict does not have to be the same on each charge. I cannot find the accused guilty of any charge unless the evidence in relation to it satisfies me beyond reasonable doubt that he did commit that offence.
The evidence is of course what witnesses have said on oath and the exhibits which have been produced. What counsel have said is not evidence.
I must assess the evidence dispassionately and objectively and not decide the case on any prejudice or sympathy.
I am not permitted to undertake, and I have not undertaken, research of my own in respect of the evidence and I must decide the case only on the evidence which the parties have decided to place before me.
I must not guess or speculate about matters which are not in evidence. I may, however, draw inferences from proven facts. An inference is a logical deduction from facts which I find proven. I can only draw an inference against the accused if it is the only reasonable inference, or conclusion, that can be drawn consistent with the proven facts. In drawing inferences, I do not consider the facts in isolation but consider them as a whole.
So far as the evidence of witnesses is concerned (and the witnesses include the accused who elected to give evidence in his defence in this trial), it is necessary for me to consider the credibility or believability of each witness, the reliability and accuracy of his or her evidence, and the weight to be given to it. A witness may be truthful but have a poor memory or otherwise be mistaken. I am able to accept all or part of the evidence of any witness and disregard all or part of the evidence of that witness.
The evidence of G and C was recorded on two other occasions before another judge. Each of the complainants (whether the evidence was pre-recorded or not) gave evidence from a remote room which was linked by closed circuit television to the court room. The giving of evidence in these ways are routine practices of the court and I cannot draw any inference as to the accused's guilt from the use of these routine procedures.
So far as processing the evidence of the accused is concerned:[1]
•If I believe his evidence I must acquit him and return a verdict of not guilty.
•If I do not accept his evidence but consider it might be true, I must acquit.
•If I do not believe his evidence, I must put it to one side. That is because he does not have to prove anything in this trial. The question will remain: has the State on the basis of evidence that I do accept, proved his guilt beyond reasonable doubt?
[1] De Silva v The Queen [2019] HCA 48 [12]; Liberato v The Queen (1985) 159 CLR 507.
There are some other legal principles relevant to specific aspects of the evidence which I set out later.

The elements of the offences

For each of the charges there is a date range and a specified place for the alleged offence. The State does not have to prove the date and place of the alleged offence beyond reasonable doubt.

Indecent dealing

Each of counts 1 and 2 allege an unlawful and indecent dealing with G contrary to s 183 of the Criminal Code (WA) (Code) (as it then stood). For these charges the elements of the offence which the State must prove beyond reasonable doubt are:
1.Identity. The State must establish that it was the accused who did the act alleged.
2.That the accused 'dealt with' G.
3.That the dealing was 'indecent'.
4.That the dealing was unlawful.
5.That G was a child under the age of 14 years.
Each of counts 4 to 7 inclusive allege an indecent dealing of J contrary to s 321(4) of the Code. For these charges the elements of the offence which the State must prove beyond reasonable doubt are:
1.Identity. The State must establish that it was the accused who did the act alleged.
2.That the accused 'dealt with' J.
3.That the dealing was 'indecent'.
4.That J was a child over the age of 13 years and under the age of 16 years.
The words 'dealt with' include any physical contact, including touching. Counts 1, 2 and 5 all allege touching or physical contact. Counts 4, 6 and 7 do not allege any touching, but that the accused masturbated in the complainant's presence. As defined in the Code s 319(3)(c), a reference to a person indecently dealing with a child includes a reference to the person committing an indecent act in the presence of the child. Masturbating in front of a child falls within that definition.
A dealing is indecent if it is unbecoming or offensive to common propriety. The conduct must also have a sexual character. This is because the word 'indecent' can only be referrable to the involvement of the human body, bodily actions or bodily functions in a sexual way.[2] Conduct - whether a touching or an act in the presence of a child - which is sexual and which contravenes a right-thinking person's standards would be indecent.
[2] Drago v The Queen (1992) 8 WAR 488, 497 - 498 (Nicholson J, with whom Wallwork J agreed), 503 (Murray J).
Whether conduct is of a sexual character must be viewed in light of all of the circumstances including the nature of the conduct, the situation in which it occurred and any words or gestures accompanying the conduct.
A dealing is unlawful unless it is authorised, justified or excused by law. An example of how a dealing could be justified or excused by law is if it occurred by accident or occurred independently of the exercise of the will of the accused. The dealing in each of these counts must be intentional and willed. An accidental touching could not be a dealing.

Indecent and unlawful assault

Count 3 alleges an unlawful and indecent assault of G, said to have occurred between 28 February and 1 October 1987 contrary to s 324B of the Code (as it then stood). For these charges the elements of the offence which the State must prove beyond reasonable doubt are:
1.Identity. The State must establish that it was the accused who did the act alleged.
2.That the accused assaulted G.
3.That the assault was 'indecent'.
4.That the assault was unlawful.
A person assaults another within the meaning of s 324B if he strikes, touches or moves, or otherwise applies force of any kind, either directly or indirectly, to the other person without that other person's consent.[3] Consent in this context referred to a consent freely and voluntarily given.
[3] Code s 222.
An assault is indecent within the meaning of s 324B if it is unbecoming or offensive to common propriety. This needs to be judged in light of the time, place and circumstances prevailing at the time of the assault. A touching which is sexual and which contravenes a right‑thinking person's standards would be indecent.
An assault is unlawful within the meaning of s 324B unless it is authorised, justified or excused by law. Like the counts dealing with indecent dealings, the assault must be willed and intentional.

Sexual penetration

Each of counts 8 to 10 inclusive and 12 to 18 inclusive allege a sexual penetration of C, a child under the age of 13, on various dates between 30 July 2001 and 1 August 2006. These charges are brought pursuant to s 320(2) of the Code. The elements of the offence which the State must prove beyond reasonable doubt are:
1.Identity. The State must establish that it was the accused who did the act alleged.
2.That the accused sexually penetrated C.
3.That C was a child under the age of 13 at the time.
Sexual penetration can take many forms. There are different forms of sexual penetration alleged in these counts.
In counts 8, 9, 10, and 15 it is alleged that the accused penetrated the C's vagina with his fingers. In count 14 the allegation is that the accused penetrated C's vagina with a guinea pig. In count 16 it is alleged that the accused penetrated her vagina with his penis. Count 18 alleges that he penetrated her vagina with a toothbrush. The law in relation to these charges is that if a person penetrates the vagina of another person with any part of his body, or with an object or thing, he sexually penetrates that person. The term vagina includes the labia majora.[4]Any degree of penetration of the outer lips of the vagina is sufficient. Vagina is used in a non-technical way. For count 16, ejaculation is not necessary for sexual penetration to have occurred.
[4] Code s 319(1) to sexually penetrate (a).
In counts 12, 13 and 17 it is alleged that the accused sexually penetrated C by introducing his penis into her mouth. The law in relation to these charges is that if a person introduces any part of his penis into the mouth of another person, he sexually penetrates that person.[5]
[5] Code s 319(1) to sexually penetrate (c).

Procuring a child to engage in sexual behaviour

Count 11 alleges that the accused procured C, a child under the age of 13, to engage in sexual behaviour. This is said to have followed the sexual penetration the subject of count 10. The elements of the offence which the State must prove beyond reasonable doubt are:
1.Identity. The State must establish that it was the accused who did the act alleged.
2.That the accused procured C to engage in sexual behaviour.
3.That C was a child under the age of 13 at the time.
To 'procure' has its ordinary dictionary meaning which includes to prevail upon, induce or persuade a person to do something'.[6] Someone procures something by setting out to see that it happens and taking the appropriate steps to produce that happening.[7]
[6] Oxford English Dictionary Online (online at 24 April 2020).
[7] Humphry v The Queen [2003] WASCA 53, [40] - [42]; Coates v The State of Western Australia [2009] WASCA 142 [55].
The term 'engage in sexual behaviour' is a term defined in s 319(4) of the Code. For the purposes of this charge the Code provides that a person is said to engage in sexual behaviour if the person penetrates the person's own vagina (which term includes the labia majora) with any object.
The sexual behaviour here which it is alleged the accused procured C to do was to insert a stick of lip gloss into her vagina.

The issues for counts 1 to 7

There was no issue in this case about identity for counts 1 to 7 inclusive. For counts 1, 2 and 4 to 7 there is no issue about the element of the age of the complainant at the time of the alleged incident the subject of each charge (whether the age is under 14, or between the ages of 13 and 16).
There is also no issue that the dealing or assault, if found to have occurred, would constitute an indecent dealing or unlawful and indecent assault, as the case may be.
The real issue for each of counts 1 to 7 is whether what the complainant alleges, did in fact happen.
For count 3, there is also an issue of the defence raised under s 17 of the Code. I discuss that defence and how it arises later in these reasons.

The issues for counts 8 to 18

There is an issue regarding identity in relation to counts 8 to 18. There is, however, no issue that C was a child under the age of 13 at the time of the alleged incident the subject of these charges.
There is no issue that if the act occurred as described by C in each of counts 8, 9, 12, 13, and 15 to 17, that would constitute a sexual penetration. It is not conceded, however, that if the act in counts 10, 14 and 18 occurred, that this constitutes a sexual penetration.
The main issues for counts 8 to 18 are:
(a)identity; and
(b)whether what C alleges, did in fact happen.

The evidence - an overview

The following is non-contentious or undisputed background evidence.
G met the accused, through their mothers, when G was about 10 years old and the accused was about 19 years old. G visited the accused at his parents' home, where the accused then lived. The accused also went and picked up G from his home and took him to do activities like going to waterslide parks, cable waterskiing, going to the beach and similar activities. G described the accused as 'like a big brother', and that they were 'just good friends'.[8]
[8] ts 141.
While the accused's evidence as to the circumstances in which he first met G and their family relationship was in substance the same as G's evidence, the accused stated that he met G at a later time, in 1983, when the accused was aged 20 or 21.
At the time of counts 1 and 2, the accused was living at his parents' home. G was aged either 10 or 11 years old and the accused was 19 or 20 years old.
The accused became qualified as a school teacher. In 1985 he was posted to work in a country town.
In 1986 when he was in Year 8 at high school, G had some academic and behavioural problems at school and had been expelled from a school he was attending in that year. G gave evidence of visiting the accused in the country town where he worked at the end of the school year. When G came back to Perth, he asked his parents if he could go and live with the accused and attend school in the country town.[9] His parents agreed, and G went to the country town to live with the accused and attend the school where the accused taught.
[9] ts 152 - ts 153.
At the time of count 3, G was 15 years old, living with the accused in that country town. He started living with the accused at the start of year 9, 1987. Initially, it was just the two of them living alone together, but towards the end of the year they were joined by another housemate, S, an adult friend of the accused's.
At the end of the year, in November 1987, G made a complaint to S about the accused's sexual behaviour towards him. S told G that G had to call his parents, which he did, and then S drove G to his parent's house in Perth. G did not return to the country town.
In 1989 the accused was charged with the following offence (which I will refer to as the 1989 charge), to which the accused pleaded not guilty:[10]
On a date unknown between 1 November 1987 and 30 November 1987 at [country town], you unlawfully and indecently assaulted [G], a person under the age of 16 years.
[10] Exhibit 22.

The facts alleged in relation to the 1989 charge were, in summary, that one evening in November 1987 the accused and G were at the house with others watching videos and drinking alcohol. The others at the house were G's school friend, GL, who was staying overnight with him, GL's brother and his brother's girlfriend (S was not at the house that night). G and GL went to bed, sleeping head to toe in G's bed. G woke up to find the accused with his hands down G's pyjama pants and touching him on the penis. GL did not wake up.[11]
[11] Exhibit 22, ts 2, ts 4 - ts 5, ts 26 - ts 28.
On the evening of the next day G spoke to S about this. S told him to ring his parents, which he did, and the next weekend G returned to Perth.[12] S also gave evidence of the complaint which G made during the trial of the 1989 charge (and was cross‑examined in this trial on that evidence).[13]
[12] Exhibit 22, ts 29 - ts 30.
[13] ts 638.
Following the trial, the accused was acquitted of the 1989 charge.
The State has run its case concerning count 3 in this trial on the basis that this is a different occasion of unlawful and indecent assault. The accused's position is that count 3 is in substance the same as the 1989 charge for which the accused was acquitted. Thus the defence under s 17 of the Code is raised.
While living in the country town, the accused met a female teacher, P, who became his girlfriend. The accused and P married in 1991. They had three children together, C who was born in mid-1998, a son born in 1999 and another daughter in 2005.
J was the accused's nephew - the son of one of P's brothers. In his adolescent years, when he was in Year 8 and Year 9 at school, J began to have behavioural difficulties at school. J began to spend time with the accused and his wife, visiting the accused's home on most weekends and spending the night there on occasions. J described the accused as a 'father figure'. J's own parents struggled with raising him through his teenage years and he was struggling at school. At the start of Year 9 he was suspended from school for two weeks and then a short time later he was suspended for one week, after which he left school.
At the time of counts 4 to 7, between May 1999 and May 2001, J was aged between 13 and 14 years old and the accused was aged 36 to 38.
At the time of counts 8 to 18, between 30 July 2001 and 1 August 2006, C was aged between 3 and 8 and the accused, her father, was aged between 38 and 43.
In 2010 the accused was charged with other offences of sexual offending against a child, indecently dealing with a boy.[14] After a trial in August 2010, the accused was acquitted.
[14] ts 915.
In mid-2017 the accused and his wife, P, separated. She has since remarried.
On 26 July 2017 the accused was arrested in relation to charges of sexual offending against a young boy, 'A'.[15]
[15] ts 920, ts 921.
On 4 September 2017, the accused became aware of the allegations made against him by another young boy, 'L', and each of the three complainants in this trial, G, J and C.[16]
[16] ts 921 - ts 922 and ts 1,031.
In 2019 the accused pleaded guilty to the charges of sexually offending against A, and two further charges of sexually offending against L.
The accused admitted in cross‑examination that he had a sexual interest in boys 'around about 12 years of age', but denied any sexual interest in young girls. He agreed that he had been attracted to young boys for a long time, and when it was put to him that he had had that interest since he was around 19 years of age, the accused responded 'I won't deny that'.[17]
[17] ts 953 - ts 954.

Evidence of the accused's prior convictions

The State produced evidence of the accused's conduct the subject of the convictions in 2019. The evidence produced was in the form of some agreed facts, which became exhibit 1A in this trial.
I do not propose to repeat in these reasons all of the facts relating to the conduct of the accused the subject of these prior convictions. In summary, however, there were two victims, both young boys. The first victim, A, was aged 11 to 12 years old and the second victim, L, was 11 years old. The sexual offending against A and L occurred between August 2016 and August 2017.
In relation to the first victim, A, the accused pleaded guilty to six counts of indecent dealing with a child under 13 years, one count of sexual penetration of a child under 13 years and one count of attempted sexual penetration of a child under 13.
The first three offences of indecent dealing involved the accused showering with A, washing A and hugging him in the shower on three different occasions (counts 1, 2 and 3).
On another occasion in July 2017 the accused committed the sexual penetration, three further indecent dealings and an attempted sexual penetration against A (counts 4 to 8), one after the other. The offending started with the accused lying on a mattress with A watching a movie. The accused was drinking alcohol and provided an alcoholic drink to A. After A undressed himself intending to change into his pyjamas, the accused told him to stay undressed and then the accused undressed himself. The accused performed fellatio on A, then took hold of A's hand, placed it on the accused's penis and encouraged A to masturbate him. The accused then placed his hand on A's buttocks. A pulled away and went and had a shower. The accused got into the shower, naked, with A, rubbed his buttocks and then attempted to insert his penis into A's anus. He then washed A, hugging him tightly.
Some of what happened between the accused and A on the occasion in July 2017 was seen by three witnesses watching from outside the house - the accused's daughter C, the accused's son and a friend of theirs. They saw part of the incident and rang the police.
In relation to the second victim, L, the accused was convicted of two counts of indecent dealing with a child under 13 years (counts 9 and 10), both of which occurred on two different occasions between 1 June and 30 July 2017. The first incident of indecent dealing involved the accused getting L to sit on his lap, placing his hands over L's groin area and using his thumbs to stimulate L's penis. The second incident also involved the accused making L sit on his lap, shifting his hands close to L's groin area, resting his hands on L's penis (over his clothes) and moving his thumb over his penis.
The tendering of this evidence of the accused's conduct the subject of the prior convictions was not opposed, and the defence admitted the facts of the prior convictions. (I will refer to this as the 'prior convictions' as a convenient short hand way of referring to the accused's conduct set out in exhibit 1A). The State had earlier obtained the leave of another judge of this court to adduce the evidence of the prior convictions pursuant to s 31A of the Evidence Act 1906 (WA).
I did query with counsel at the beginning of the trial whether the evidence of the prior convictions was being relied upon by the State only for the charges relating to G and J, or also with C. I was advised it was relied upon for all charges.
The purpose of leading this evidence, as described to me by counsel for the State, was as both relationship and propensity evidence. It was evidence of the propensity of the accused to engage in sexual activity with young children and evidence of the attitude and conduct of the accused towards young children. The prior convictions showed the accused had a sexual interest in young children, which he acted upon. This tendency or propensity made it significantly more likely that he had engaged in the type of behaviour alleged by the complainants in this trial.
As I have already set out, the accused admitted during the course of his evidence that he had a sexual interest in young boys, which had existed from the age of 19. He denied any sexual interest in young girls, or C.[18]
[18] ts 954.
He was, however, cross-examined in relation to count 17, which it was alleged occurred during a shower with C, about his previous conduct in getting into a shower and sexually offending against A.
At the end of the trial, having heard all of the evidence, I asked again for the State to identify the purpose for which the evidence of the prior convictions was led. I indicated that now having heard the evidence, and notwithstanding the earlier ruling by the other judge of this court, I would hear submissions on whether the evidence of the prior convictions had significant probative value and should be used when determining the charges relating to C.
The parties have made submissions about whether I should use the evidence of the prior convictions for all counts (which was the State's submission), or only those relating to G and J (and excluding the shower incident, count 17, which was the submission made on behalf of the accused).
Having considered the submissions and applying the principles in recent authorities,[19] I am satisfied that the evidence of the prior convictions discloses the accused's sexual interest in children of a particular sex and age bracket, namely young boys around the age of 12 years, and a tendency to act on it, including by touching the young boy's penis, performing fellatio and getting the young boy to masturbate the accused. This is significantly probative and rationally affects the assessment of the probability that the accused acted as alleged against G and J in counts 1 to 7 inclusive.
[19] The State of Western Australia v Jackson [2019] WASCA 118; Johnson v The Queen [2018] HCA 48; (2018) 360 ALR 246; R v Bauer (a pseudonym) [2018] HCA 40; (2018) 359 ALR 359 and McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045.
I am also satisfied that the probative value of the evidence of the prior convictions compared to the degree of risk of an unfair trial for the accused in relation to counts 1 to 7 is such that fair-minded people would think that the public interest in adducing all relevant evidence should take priority over the risk of an unfair trial. To alleviate the risk of an unfair trial, I have given myself specific directions in relation to the evidence of the accused's prior convictions, which I have set out in [355] ‑ [360] below.
While the evidence of the prior convictions has probative value in relation to the third complainant, C, I am not satisfied that the probative value is significant. The evidence of the prior convictions does not, in my view, establish that the accused had a sexual interest, and a propensity to act on that interest, in children other than young boys. In addition, the nature, quality and extent of the conduct the subject of the prior convictions is, in my view, fundamentally different to the charged acts against C. Accordingly, the extent to which that evidence is capable of rationally affecting the assessment of the probability that the accused acted as alleged in any or all of the charges relating to C cannot properly be characterised as significant.[20]
[20] The State of Western Australia v Jackson [26]; DKA v The State of Western Australia [2017] WASCA 44 [55]; RMD v The State of Western Australia [2017] WASCA 70.

The evidence - counts 1 to 3

The evidence of the first complainant 'G'

G gave evidence of spending time at the accused's parent's house where he lived at the time. G's evidence was that he often stayed there overnight.[21]
[21] ts 142 and in cross-examination ts 173.
He gave evidence of counts 1 and 2 happening during the same incident, when he was approximately 10 or 11 years old. Earlier, however, G had described how he was 10 years old when he met the accused and that this incident happened about a year later.[22]
[22] ts 142.
G said he remembered this incident because it was around the time of his birthday and the accused suggested that they could celebrate his birthday and have 'a few drinks'. His evidence was that on the day of this incident he and the accused went to the beach during the afternoon to a local surf club, going for a paddle on the club boards there. The accused drove back to his place with G in the passenger seat. The accused stopped and bought some beer on the way home. G had a specific memory of the beer being in long necked bottles and that the brand was Coopers Ale.[23]
[23] ts 143 and in cross-examination ts 180.
The accused told G that his parents were away for the weekend and that is why they could have a few drinks. G had never drunk alcohol before. The accused poured drinks into small glasses and they played a game where they had to drink as many as possible in a short period of time. G remembered he was very drunk, feeling dizzy and a little bit ill.[24]
[24] ts 143 - ts 144.
This drinking and what followed took place in the living room of the accused's parents' home. The accused had pulled out a mattress from the bedroom and put that on the floor in front of the television and the two of them sat or laid on the mattress to watch a movie. While G lay on his left hand side facing the television, the accused lay behind him 'spooning' G. Somehow, although he could not remember how, both he and the accused were only wearing briefs. The accused put his hand on G's penis and started stroking it, over his briefs, moving it up and down.
G gave evidence that he froze in fear and did not know what to do. He thought that he coughed and rolled onto his stomach so that the accused could not reach his penis, then pretended to be asleep.
G then described how the accused stood up, turned off the television, picked up G and laid him on his back on the mattress. The accused lay on his stomach between G's legs, removed his briefs and put his mouth over G's penis and performed oral sex for approximately five minutes. G recalled that he had an erection.[25]
[25] ts 146.
G could not remember what happened to cause the accused to finish what he was doing, but remembered how the accused pulled G's briefs back up, stood up and walked into a room, which G described as the spare room.
On the night of this particular incident G gave evidence that he slept on the mattress where it lay in the living room. Ordinarily when he stayed overnight, he slept on a mattress at the foot of the accused's bed in the accused's bedroom, while the accused slept in his bed. G gave evidence that he never slept in the accused's bed, but the accused used to get him to go in there in the morning when they woke up and G could remember there would be kissing and cuddling.[26] In cross‑examination G described these as kisses on his back, and cheeks, which occurred about a dozen times.[27] He also gave evidence that this had occurred before the incident the subject of counts 1 and 2.[28]
[26] ts 150.
[27] ts 151.
[28] ts 151.
G described how he and the accused did not ever discuss what happened on the night of the alleged incident the subject of counts 1 and 2, nor did G tell anyone about what had happened. As to why he did not tell anyone, he gave evidence that he was confused, scared, and trying to rationalise it.[29]
[29] ts 141.
After this incident, he saw less of the accused. He gave an explanation that he realised what the accused had done was wrong, even though he did not understand it completely, and thought that he would not put himself in that situation again.[30]
[30] ts 152.
There followed a time where G did not do well at school, as I have described in [52] above. G gave evidence that the accused came and visited G and his family, and arrangements were made for him to see the accused again after that, with the two of them participating in some of the activities G had previously enjoyed with the accused, such as going to water parks.
By this time the accused had been posted to work in the country town. G gave evidence of visiting the accused in that country town at the end of the school year. He made some friends in the town. When he came back he asked his parents if he could go and live with the accused and attend school in the country town.[31] When asked whether he had any concerns about doing this, G answered that he should have, but he remembered explaining them away to himself at the time. He explained this further:[32]
Can I just come back to what you said a moment ago? You said you explained away your concerns. How did you explain away those concerns?---As a general - would who doesn't understand his sexuality and things like that. I just thought it was a mistake. He made a mistake. It was because he was drunk. And you know, when he was a really nice, caring guy towards me. And I wouldn't have thought that he'd do anything to hurt me. That's my thought process as a 10-year-old.
And what was your thought process as a slightly older child, a 14‑year‑old wanting to go to [the country town] with [the accused]? ---Much the same. Forgiving.
[31] ts 152 - ts 153.
[32] ts 153.
G then went to live with the accused at the start of the next school year, which was Year 9. Initially it was only G living with the accused but later in the year a housemate, S, who was an adult and close to the accused's age, moved in.
G gave evidence that as the year progressed the accused became more authoritarian, and was strict about doing chores and strict about where G went and who he spent his time with. However, he was allowed to drink alcohol on a few occasions, with the accused.
The circumstances of count 3 as given during G's evidence was that this happened at night after he had been with the accused watching a football grand final. On returning home they began to drink beer. GL, a school friend of G's, was also there at the house drinking beer with G and the accused and listening to music. GL went home, after which G went to bed. The other housemate S was not in the house that night but was away in Perth.[33]
[33] ts 161 - ts 162.
G's evidence was that he woke up to find the accused sitting on the side of the bed. He had his hand down G's pyjama pants, playing with his penis. When asked to describe what he meant when he said that the accused was playing with his penis, G answered 'from memory, he was like rolling it around in his fingers'. G described how he was petrified, coughed to let the accused know that he was awake and when that did not work, G rolled onto his stomach. The touching then stopped and after a while the accused stood up and walked out of the room. G did not consent to this touching.[34]
[34] ts 163 - ts 164.
G gave evidence that this time was different from the alleged touching the subject of the 1989 charge, of which the accused was acquitted. G described how while it was similar, in that he had been drinking at the house with the accused and GL, there were other people there, namely GL's older brother and his girlfriend. Also on this occasion GL had stayed the night, with G and GL sleeping top to toe in G's bed.
As to which of the alleged incidents happened first in time, in examination‑in‑chief G believed that the incident where GL had stayed the night (the 1989 charge) happened first, and that there was a time difference between the two incidents of one to two months.[35] He said he had not told anyone about what happened on that first occasion, and believed he told someone after the second time (ie: the one the subject of count 3). He later stated that the 'last time' or 'second time' was the time without GL staying over, meaning the subject of count 3.[36]
[35] ts 168 - ts 168.
[36] ts 170 - ts 171.
G gave evidence that he spoke to S two nights afterwards, describing how he basically broke down crying and said '[the accused] has been coming into my room at night after he's - after we've been drinking'. S was adamant that G needed to tell someone straight away, so G telephoned his father.[37] G's evidence was he phoned his father from a payphone in town the next night, and told his father that the accused had been letting him drink and that the accused was coming into his room and touching him.[38]
[37] ts 170.
[38] ts 171.
G was cross-examined at length about the circumstances of each count, but maintained his earlier evidence.

There was also much cross-examination of G about matters which he had mentioned in his evidence in this trial which he had not previously mentioned. He was also cross‑examined about aspects of his evidence in this trial which in some way differed from previous statements he had given, either to the police, to prosecutors or during his evidence at the trial of the 1989 charge. The following are relied on by the defence as inconsistencies which affect G's credibility and reliability.
As to the age which G said he was at the time of counts 1 and 2, he admitted that he was not 100% clear of his age at the time of counts 1 and 2, saying it was either 10 or 11, and around the time of his birthday. This was the first time he had drunk beer.[39] In his evidence at the trial of the 1989 charge, G had said he was 12 years old when the accused gave him his first drink.[40]
[39] ts 181.
[40] ts 187 - ts 181.
When he gave a statement to police in 1989 about what the accused had done to him in the country town, G made no mention of the accused touching G's penis or giving him 'a head job' at the accused's parents' house when he was 10 (or 11) years old.[41] G agreed that when he gave his statement to the police in 1989 it would have been the perfect time to say something, but went on to give the following explanations:[42]
All right. You didn't say, hey, look, he's done it to me before?---No, no, I didn't want to talk about it or something. I was still trying to work out in my head. I didn't like talking about the occasion that he was going to trial for.
…
So I'd say to you again, isn't it the case that it's the perfect time to tell them about what happened at [the accused]'s house?---It might appear so looking in but no, from where I was, it was traumatic, it was upsetting and the less I spoke about it the better.
[41] ts 190.
[42] ts 191 and ts 199.
During his evidence in the trial for the 1989 charge G did give evidence that the accused had put his hand on his penis when he was 12 years old, whereas in this trial his evidence was that he was around 10 to 11 years old.[43] However, he made it clear that when he gave evidence that the accused touched his penis when he was 12 years old, he was referring to the incident the subject of count 1.[44]
[43] ts 193, ts 196, ts 198 and ts 203 - ts 204.
[44] ts 199.
Relevant to count 2, during his evidence in the trial for the 1989 charge, while he gave evidence that the accused had touched his penis when he was 12 years old, he specifically denied that the accused had given him 'a head job' when he was younger. G gave an explanation for this denial, saying that he was very embarrassed and did not want to talk about the accused giving him a head job, he was young at the time of the trial (17 years old at the time), he was in an open courtroom full of people, his father was in the courtroom and it was 'very traumatic'. G did admit, however, that he appreciated that during the trial of the 1989 charge he was under oath to tell the truth and he was giving evidence to the court about a serious offence.[45]
[45] ts 192 - ts 193, ts 196 and ts 199.
In his previous statements to police, both in 1989 and in 2017, G had not mentioned being kissed and cuddled in bed by the accused while at his parents' house. G did not mention kissing and cuddling until speaking with the prosecutor before this trial. He did, however, explain that he did not recognise this as inappropriate when he spoke to the police originally in the 1980s, but after having children himself, he would certainly object to such conduct if either of his children were involved. He told the prosecutor recently after going away, thinking about the whole thing and realising it was something that needed to be said.[46]
[46] ts 202 - ts 203.
When G gave his statement to police in 1989 about what the accused had done to him in the country town, he made no mention of what has been referred to as the second incident, the incident the subject of count 3. The explanation which G gave for this was that he did not initiate contact with the police, the police came to him and he was reluctant to even talk about one of the incidents.[47] G did not make any complaint to police until 2017 when he heard that the accused was standing trial again.[48]
[47] ts 206.
[48] ts 207.
As to the timing of the two incidents, initially during cross‑examination G maintained that the incident the subject of count 3 was the second incident, with the incident the subject of the 1989 charge being first in time. The following exchange taking place with counsel for the accused:[49]
[49] ts 211.
…. the allegation that you've made more recently, have you told anyone that that actually was the one that happened first in time?---Not that I recall. But possibly, I guess.
Well, you told the DPP prosecutors that, didn't you, recently?---I may have. Well, the thing is that these two occasions have been - as I've said they're very similar.
Yes?---And some of them have meshed.
Some of them have meshed?---Yeah.
Yes?---I mean, I told the story originally in 1989 - - -
Well - - -?---- - - as the solitary incident. So I had to change details about that cos I didn't want to refer to the other time.
You had to change details about it? When did you change details?---Well, when I was in court, when I said that it had happened, the only time. And I spoke to my parents after that time. And I got out after that time.
So when you say you changed details, do you mean that you lied in court?---No, I don't mean that.
Well, did you - were you not honest in court when you were giving evidence under oath about the details?---No, I was unsure.
You were unsure?---Yeah.
Did you say that you were unsure?---I was - as I said, it was very traumatic. I don't know. No, I don't think so.
No, you didn't say look, I'm unsure about these things, did you?---No, I just wanted it to end.
No, and you didn't say look, it happened twice - - -?---No.
- - - at [the accused]'s place in [the country town], did you?---No, I didn't.
And now you're saying that some of these details are meshing into each other, are they?---Well, yes.
Yes. So are you finding it difficult to distinguish the one from the other, is that what you're saying? ---No I can definitely distinguish the occasions.
G denied that he was describing the same incident in count 3 as the incident about which he gave evidence in 1989.
However, in his evidence on oath at the trial of the 1989 charge, he said that he left the country town immediately after the incident the subject of the 1989 charge. G admitted in his evidence in this trial that what he had said in court at the trial of the 1989 charge was untrue, and that he knew at the time he was giving that evidence it was untrue.[50] Put simply, G admitted to lying under oath. G's explanation for lying under oath was again that he was traumatised.[51]
[50] ts 216 - ts 218.
[51] ts 218.
Later in cross-examination G said that he was only '60% sure' as to which of these alleged incidents came first and which happened second.[52]
[52] ts 228.
G also denied that the reason he was doing this (ie: making his complaint and giving evidence that there were two incidents in the country town) was because the accused was acquitted of the 1989 charge, however, he said the following:[53]
And you just want to have another crack at him, don't you?---No, that's not the case at all. I think he should be held to account for what he's done and it's not just - - -
And he wasn't held to account in 1989 at the trial, was he, at the trial?---No.
He was acquitted?---No, nor was he in 2010.
[53] ts 212.
G then gave evidence that he went to the trial of the 2010 charges, sat throughout the trial, sat with a police officer and did not tell that police officer about these incidents. G's explanation was that he was not ready, he was there to support the 'new victim' and it was not the time or place. He was not ready 'in my own head' to tell it until August 2017.[54]
[54] ts 212 - ts 213.
G admitted during cross-examination that he had a long standing drug problem with convictions for drug related offences starting in 2010 and a 'shocking' criminal record. He denied that his drug use had caused any memory problems.[55]
[55] ts 225 - ts 228.

Evidence of complaint from S

S gave evidence that he had more than one conversation with G over the course of a few days. In the first conversation G told 'a story' that he had been 'touched up' when he was asleep at night. S gave evidence that G was known to be a troublemaker and loose with the truth, so he spoke to him more than once until the next Friday night when S drove G back to Perth.[56]
[56] ts 628 - ts 629.
S gave evidence that when G first approached him, there were a 'lot of tears' and G was pretty emotional. S gave evidence that G basically said that the accused had come into his room late on returning home one night and had played with him in his sleep. G indicated that 'played with him' meant that the hand was touching his genitals and his penis.[57]
[57] ts 631.
S gave evidence that he asked G to come to S's office so he could use the phone there to make a call to his parents.[58] S was in the vicinity but did not hear the call. As to when that call was made, S said it may have been made on the Thursday or Friday.
[58] ts 632.
S drove G to Perth on the Friday of the same week, dropped him at his parents' home and never saw him again.
In cross-examination S agreed he had no recollection of what G said word for word, but S was almost 100% sure about G describing the touching of his genitals and his penis. S was not 100% sure that this took place in the first conversation.
S agreed that this was not the first time he had spoken about his discussions with G, and that he had given evidence during the trial of the 1989 charge. In that trial, S had given evidence about the same week he was talking about in this trial.[59]
[59] ts 638.
S was cross-examined about the statement he made to police in 1989, which he adopted again in 2017, and differences between that statement and his evidence. He agreed that in his statement to the police he did not mention that G had used the words 'genitals' or 'penis', S had only said that G had said 'something to the effect that [the accused] had been playing with him in his sleep', and that S assumed it had been a sexual touching.[60]
[60] ts 640 - ts 643.
However, in re-examination another part of S' statement to police was put to him where it was said 'The first time that I was aware of any problems between [G] and [the accused] was when [G] told me that [the accused] had touched him sexually'.[61]
[61] ts 652.
S was also cross-examined about his earlier evidence in the trial of the 1989 charge, where S had given evidence that G had approached him and said 'that he had been touched sexually and so on in his sleep' and that G had inferred that it had been the accused. S agreed that for the purpose of giving evidence in court, he had told the truth and it was fair to say that in 1989 he had a better recollection of the events.[62]
[62] ts 645 - ts 647.
S also agreed that in his evidence in the 1989 trial he had said that he suggested to G that he (S) was not going to believe him at all unless he did make the effort to ring his parents and let his parents know.

Evidence of complaint from G's father

G's father gave evidence that on one occasion when G was living with the accused in the country town, he received a phone call from G. In that phone call G said that the accused had assaulted him. G's father gave evidence that he asked 'Do you mean that he beat you up?' and G answered 'No, sexually'. Very soon after that phone call, G came home to Perth.[63]
[63] ts 815 - ts 816.
G's father gave evidence that he did not speak to him at all about what happened. This was because it was G's father's belief, then and now, that if he spoke to his son about the sexual abuse, it would only make things worse. G's father did not seek any of the details, and G did not offer any details.[64]
[64] ts 816 - ts 817.
In cross-examination G's father was taken to a previous statement he had provided to the police in which the conversation with his son was recorded as taking place in a slightly different way - after G's father asked 'Do you mean he beat you up?' G said 'no', and then G's father asked 'Do you mean sexually?' and G answered 'Yes'. In his evidence in this trial G's father said that was not how it happened, and held to the evidence he gave as I have set out in [132].[65]
[65] ts 819 - ts 820.

Evidence from the accused

The accused agreed that G had often visited his parents' home, however he gave evidence that when G did so he was always in the company of his mother.[66] Later in cross-examination, however, the accused agreed that there were occasions when he was alone with G when he was a young boy from the age of 10.[67]
[66] ts 880 - ts 881 and ts 886.
[67] ts 1,028.
The accused gave evidence that he spent more time with G towards the end of 1984. G was having troubles at school and as the accused was a qualified teacher, G's mother had talked to him about G's problems. The accused and G had 'a bit of a rapport' going on towards the end of 1984 and spent time together, probably once every couple of weeks or so.
When asked what kinds of things they would do together, the accused said his recollection was that at that stage they probably went to the beach together a couple of times.[68] The accused also gave evidence that he could not recall his parents going away during the time he spent time with G.[69]
[68] ts 882.
[69] ts 886.
The accused gave evidence that G never spent the night at his parents' home and had never shared a bedroom with the accused at his parents' home. G never had a reason to sleep on a mattress at any point at the accused's parents' home while he was there. The accused could not recall any night where he and G had spent the night together in this parents' home.[70]
[70] ts 883.
He denied ever touching G's penis with his hand or engaging in fellatio with him, in either the living room at his parents' home or anywhere else. The accused maintained he had never done anything sexual to G.
In 1985 the accused was posted to the country town as a teacher. When the accused was asked to take G with him to the country town, by then he had been working as a teacher in that town for two years. The accused's understanding was that it was G's mother's idea for G to live with the accused, and that G's parents were at their 'wit's end'. It was proposed that G come to live with the accused to see if that would sort him out. G then came up for the 1987 school year and repeated Year 9 at the school where the accused taught. G was a student in a couple of classes taken by the accused.[71]
[71] ts 884 - ts 885.
In the house at the country town G had his own bedroom, as did S when he lived at the house in the second half of the year. The accused described his relationship with G as very good initially.
The accused gave evidence that G went back to Perth on school holidays and the occasional weekend. After the second set of school holidays, mid-year in July, the accused's relationship with G changed. G returned from Perth with a different, 'dreadful' attitude which then became worse. He began to get into trouble and the accused had to discipline him. The type of things he said he disciplined G about were smoking, sneaking out, particularly sneaking out and drinking. The accused gave evidence that he did not tolerate smoking, did not tolerate G sneaking out and drinking, or either of those two separately ie: sneaking out and/or drinking.[72]
[72] ts 88.
When the accused confronted G with information about what he had been doing, G would deny he had done anything and the two of them would argue. This became more of an issue as the year went on. Eventually G left in November that year.
The accused denied doing anything sexual with G in the house they shared in the country town, and specifically denied doing the acts the subject of count 3, or indeed anything sexual to G at all. He denied that he had got G drunk at any point.[73]
[73] ts 889 - ts 890 and ts 891.
In cross-examination while the accused admitted he was fond of G, in a non-sexual way,[74] and enjoyed G's company, the accused denied having any sexual interest in G. While the accused admitted that he had a sexual interest in young boys, he denied having acted upon it.[75] He said he had a girlfriend at the time, had always had a steady girlfriend from about the age of 18 and he said 'I have always enjoyed a good, solid sexual relationships with my girlfriends and my wife'.[76]
[74] ts 962.
[75] ts 953, ts 960 and ts 963 - ts 964.
[76] ts 954.
Immediately after saying that, however, when he was then asked about his offending against A and L which took place while he was married to his wife, the accused then gave an explanation that he had been depressed, medication he was taking had interfered with his sex life with his wife and he was under enormous amount of stress at the time.[77]
[77] ts 954.
In cross-examination the accused agreed that before he went to the country, he spent time alone with G. When asked about going to the beach, the accused added that 'we went to the surf club and to the rooms' and then agreed that it was just him and G, although he said that this was in 1984 and not earlier.[78] The accused also agreed that he went to a water park but could not remember whether that was in 1984 or 1986. He then added that if they went to the waterslides, it was always with the accused's brother and a few friends.[79]
[78] ts 955 and ts 959.
[79] ts 955 - ts 956.
The accused agreed he had watched movies with G when G lived with him in the country town, but denied having watched any movies with G when at his parent's home, but then changed this slightly to say 'I don't recall ever watching a movie at that house with [G]'. The accused had no recollection of lying on a mattress with G.[80]
[80] ts 957.
Having previously said that he did not tolerate G drinking, in cross‑examination the accused's evidence changed when he gave evidence that towards the end of his stay in the country town, he allowed G to have some alcohol.[81] He later stated that there were a few occasions towards the end of the year when G drank alcohol in front of him. The accused would allow G to drink sips of his beer from time to time.[82]
[81] ts 960.
[82] ts 967 - ts 968. The accused went onto say that this was a compromise he had reached with G to stop him from sneaking out to go and have drinks with others.
Later in cross-examination, the accused was taken to a statement he had provided to the police in 1989 (in relation to the 1989 charge). In that statement, the accused had said that G 'would have had a couple of glasses of beer'. The accused stated that this was an estimate he had given of how much G had drunk, and denied that G was drinking from a glass, as opposed to taking sips from the accused's beer.[83]
[83] ts 975.
While the accused agreed that G's friend GL had also drunk alcohol in front of the accused at the accused's home, he denied that there had been any occasion where just he, G and GL were home drinking alcohol. The accused stated that there were always others present.[84]
[84] ts 969 - ts 970 and ts 972.
The accused gave evidence about G's departure from the country town. The accused said he did not know G was leaving or had left for good until the following Monday. He heard from the principal of the school that G had made an allegation against him. The accused agreed that after this he never tried to contact G or his parents. He denied that this was because he knew he had touched G's penis.[85]
[85] ts 977 - ts 978 and ts 981.

The evidence - counts 4 to 7

The evidence of the second complainant 'J'

J's evidence about count 4 was that the indecent act the accused is alleged to have done in J's presence, namely masturbating, arose while they measured each other's penises. This count came to be referred to as 'the measuring incident'.

J's evidence was that this happened in the living room of the accused's house. The two of them had been watching TV. J was unable to recall exactly how this came about, but he gave evidence that he and the accused would always talk about sexual things and what J should expect. J asked the accused whether his penis was the right size or too small and the accused suggested that they measure it and find out. The accused got up to get a ruler and came back to the couch. Both the accused and J both pulled their pants down and measured each other's penises. J described how he and the accused were both hard (ie: their penises were erect). He said that they were stroking their penises to get them hard in order to measure them.[86] That was subsequently clarified, in both examination‑in‑chief and cross‑examination, as both stroking their own penises and stroking each others' penises.[87]
[86] ts 663 - ts 665.
[87] ts 716. J was stroking his own penis, the accused was stroking J's penis, J was stroking the accused's penis and, importantly for count 4, the accused was stroking his own penis.
J gave evidence that C (who was very young, a toddler, at the time) was present in the house during this incident and grabbed the accused's penis when he got up to get tissues from the kitchen, after ejaculating.[88]
[88] ts 662 and ts 711.
J gave evidence that he could remember the measurements. His penis was 16 cm long and the accused's penis was 14 cm or 14.5 cm. They discussed that this was normal, but when J made the comment about the accused having a small penis compared to J's, the accused got quite angry.[89]
[89] ts 664.
J's evidence about count 5 was that he was at the accused's home, in the living room sitting on a couch watching TV when 'one thing led to another' and his hand was on the accused's penis. J started to masturbate the accused on top of his clothes. J was unable to recall how this started. The accused remained seated until he ejaculated - he told J that he had ejaculated. The accused then got up to get tissues. J at this time was aged 13, had pubic hair, and knew what masturbation was.[90] I will refer to count 5 as the 'over the pants masturbating incident'.
[90] ts 661 - ts 662.
J gave a detail when describing this incident that 'If you were looking at us, I was on the right, [the accused] was on the left, on the same couch'.[91]
[91] ts 661.
Count 6 is alleged to have occurred on an occasion when the accused and J travelled to a farm owned by P's brothers (also J's uncles, J's father's brothers). J gave evidence that he had been to this farm at various times as a teenager. There were occasions that the family went there to work on the farm. On the particular occasion the subject of count 6, J's evidence was that he, his father and the accused drove to the farm together. J said his father drove his car on that particular occasion. J gave evidence that he had taken a pornographic magazine on that trip which he had placed under the driver's seat. This was a magazine which the accused had asked him to bring on the trip which J had obtained from a friend's father's garage. At lunchtime, the accused and J went together to get lunch from a lunch bar down the road. The accused drove. Before reaching the lunch bar, he pulled the car over to a side street or gravel track and asked J to get the magazine. J got the magazine out. The accused then pulled down his pants and started to masturbate to one of the girls in the magazine. The accused grabbed some tissues from his pocket, ejaculated into the tissues, then pulled his pants back up, threw the tissues out the window and drove off.[92]
[92] ts 666 - ts 667.
In describing this incident the subject of count 6, which I will refer to as the 'farm incident', J gave evidence that he could remember the accused calling out the name of a girl in the magazine as he was playing with his penis.[93] In cross-examination he gave evidence that he remembered this happened during school holidays, although he could not remember which holidays.[94]
[93] ts 668.
[94] ts 727.
The final charge, count 7 was an event which took place at his grandparents' house and I will refer to this as 'the incident at the grandparents' house'. Present at the house was J, the accused, J's grandmother and grandfather and also P. They all went out and left J and the accused at the house. The two of them were in the TV room. J had the same pornographic magazine, which the accused had told him to bring with him. J said that he put this magazine inside another magazine so no one could tell what they were looking at.[95]
[95] ts 668 - ts 669.
J gave evidence that he sat next to the accused, on the accused's right. Together they looked at the magazine which J described as an x rated magazine, where 'you could see everything'. One of the photos in the magazine was of a man with red testicles having sex with a lady, and all J and the accused could see was his red balls.[96] J asked the accused why they were red and the accused said it was because the man was about to ejaculate. The accused, who had pulled his pants down once everyone had left and started playing with his penis, then ejaculated. The accused went and cleaned himself up and J then hid the magazine. The two of them returned to watching TV. There was no discussion about what had happened.[97]
[96] ts 673.
[97] ts 669 - ts 670.
Apart from the evidence he gave about each of the charges, J gave evidence of other inappropriate or sexual conduct by the accused towards him.
J gave evidence that when he and the accused were travelling together in a car, alone, the accused would grab J's hand and put it on his inside upper thigh. J was able to feel the accused's testicles, as the accused usually wore shorts. J had no discussion with the accused about what was happening and did not tell anyone about it afterwards. At the time J thought nothing of it and thought it was just the accused being affectionate.[98] I will refer to this as the 'thigh touching'.
[98] ts 660 - ts 661.
J gave evidence of another occasion in the living room when the accused took his skinfolds and asked J to strip down to his underwear. I will refer to as the 'skinfolds incident.' J gave evidence that the accused said to him 'look, if you want me to take your skinfolds, then you're going to have to take your clothes off'.[99] The skinfolds were taken by the accused by pinching and touching J all over his body - his arms, legs, stomach, chest and bottom.[100] In cross-examination J agreed that he wanted assistance from the accused in order to lose weight. He also agreed that the accused did not touch J's penis or testicles or rub or do anything with his genitals, at least not that J could recall.
[99] ts 662.
[100] ts 671.
J did give evidence that he told his mother about the skinfolds incident. His mother rang and told P, but nothing was done and it just 'got swept under the carpet'.[101]
[101] ts 671.
Another occasion involving inappropriate behaviour which J gave evidence about was a time when he was staying over at the accused's home. J gave evidence that he and the accused spoke about sexual things all the time. They would talk about stuff that the accused would do with a cousin of his when he was younger and experimenting, and how they would do everything together except sex, so that they were experienced. J gave evidence that the accused counselled J to wait until he was 18 years old before having sex with females, but that he should start experimenting. The accused said it was the safest thing to experiment with a boy instead of a girl and try 'taking it up the bum and vice versa'. As J explained in his evidence, however, he was not that way inclined.[102] I will refer to this incident as the 'sex talk'.
[102] ts 670 - ts 671.
J gave evidence of having played squash quite regularly with accused, after which they would always shower. They were both always naked in the change rooms, both J and the accused. J said he always was a bit funny about being naked but the accused told him it was perfectly normal to be naked in the shower area. J said he did not feel comfortable but the accused always said it was nothing to be ashamed of.[103] I will refer to this as the squash incident.
[103]ts 672.
J gave evidence that the sexual things happened when he was between the ages of 13 and 14. He gave evidence that most Saturdays when he was at the accused's house, P was not home, as most of the time she was out playing softball or out with friends. C was just a baby.
At the age of 15, J got a girlfriend and did not then see much of the accused and his wife, rather he spent more time with his girlfriend. J could recall a particular conversation with the accused when, after J had lost his virginity he called the accused to let him know. The accused got angry with him.[104]
[104] ts 672 - ts 673.
J gave evidence that these occasions he had spoken about were not the only times, there were various times. J explained that he had 'blanked' a lot out of his memory, but these were the 'ones that just really I just can't leave, just don't leave me'.[105]
[105] ts 673.
In cross-examination J gave evidence that he met his wife 11 years ago and they had married in 2011. J had invited the accused and P to the wedding. From about 2009 J and his wife had been good friends with the accused and P. They would go out together and have dinner at each other's homes. During that time, J had also become close to the accused's daughter, J's cousin, C.[106]
[106] ts 677 - ts 679.
J agreed that in 2010 he became aware that the accused was facing criminal charges which related to a young boy, although J was not 100% clear that he knew that the charges related to alleged sexual offending against the boy. As J explained it, he knew something, but everything which came out of that family was 'sugar-coated', so everything was always made out to be not as bad as it actually was. However, J agreed that he knew there were legal proceedings and he also agreed that he offered support of a personal nature to the accused during that time, checking up on him and in effect being concerned for his welfare.[107]
[107] ts 680 - ts 681.
J agreed that he sought advice and assistance from the accused on things such as business, the purchase of cars, and properties, and that the accused also helped with some renovations on J's first home. J agreed that the accused was not only a father figure to him but also one of his closest friends.[108] Later J stated that the accused was his 'best friend'.[109] As put to him by counsel for the accused, and as J had said in his examination‑in‑chief, part of why the accused was in that role was because J's parents weren't capable of providing that sort of support.[110]
[108] ts 682 - ts 687.
[109] ts 684.
[110] ts 683.
J and his wife had a child, a son to whom I shall refer as 'H', in October 2015. J agreed that the accused and his wife babysat H on occasions over a short period of time (months) when H was under 1 year old.[111] In 2016 J asked his cousin C to be the godparent of his child, but that offer was withdrawn at the end of 2016, when J's wife was not happy about C being a godparent and they decided that C was 'not the right person'.[112]
[111] ts 685 - ts 686.
[112] ts 688 and ts 689 - ts 690.
J was cross-examined about his evidence that on Saturdays P played softball. J said he understood she played competitive softball.
He was also asked about whether the accused worked at his uncles' farm each Saturday. J responded that he knew the accused worked there but J did not think the accused worked there every Saturday. Counsel for the accused then suggested that the accused worked there 'most Saturdays'. J said he could not recall, but he only really remember the accused working at the farm during school holidays.[113]
[113] ts 695 - ts 696.
In cross-examination J was taken to what counsel for the accused has submitted are inconsistencies between his evidence at trial and what he had previously told police and prosecutors.
In relation to count 4, the measuring incident:
(a)In his examination‑in‑chief, J said that C had grabbed the accused's penis when he got up to get tissues. In his police statement J said that C had grabbed his penis as the accused was getting up to get a ruler, ie: before any measuring.[114]
(b)In his examination-in-chief J said that he had asked the question if his penis was the right size or too small. Before trial J told a prosecutor that the measuring penis incident started with the accused asking J how big his penis was and being surprised when J had never measured it.[115]
(c)J did not mention in his police statement that he had stroked his own penis or that he had stroked the accused's penis; he mentioned only that the accused had touched J's penis when measuring it and that the accused began stroking his own penis until he ejaculated.[116]
(d)While in his examination-in-chief J gave evidence about the size of his and the accused's penis after the measuring, J did not mention in his police statement the measurements which had been taken. While he did mention to the prosecutor the measurement for the accused's penis (being 14cm), he did not mention the measurement for his (J's) penis.[117] J explained, however, that he had remembered the accused's measurement after making his statement. He had always known his own measurement but did not think it was necessary to go into such detail.[118] J also said that when he signed his police statement he believed it was a rough draft and that he could amend it at any time.[119]
[114] ts 711 - ts 712.
[115] ts 714.
[116] ts 716 - ts 718.
[117] ts 717 - ts 719.
[118] ts 720.
[119] ts 720 - ts 721.
In relation to count 5, the over the pants masturbating incident:
(a)While in his evidence‑in‑chief J said C was there and grabbed the accused's penis, in cross-examination he agreed that was wrong, he had got confused and that C was not there at the time.
(b)The detail which he gave in evidence that 'If you were looking at us, I was on the right, [the accused] was on the left, on the same couch' was not something he had told the police or prosecutors.[120]
(c)While he gave evidence about the accused getting up to get tissues, J had not mentioned this in his statement to the police or in discussions with prosecutors.[121]
(d) In his evidence‑in‑chief, J recalled that this occurred when sitting on the couch next to the accused in the living room watching TV. In his police statement J had mentioned how he was sitting on the couch with the accused, but there was no mention about the TV.[122]
[120] ts 702 - ts 703.
[121] ts 708 - ts 709.
[122] ts 710.
In relation to count 6, the farm incident:
(a)In examination‑in‑chief, J said the accused grabbed some tissues from his pocket and ejaculated into them; in his police statement J said that 'once [the accused] ejaculated, he cleaned himself with a tissue he got from his pocket'.[123]
(b)In examination‑in‑chief, J said that the accused called out the name of the girl in the magazine as he was playing with his penis; in his police statement J said that the accused was yelling out the name as he ejaculated. J then gave evidence in cross‑examination that the accused was yelling out the name the whole time - as he was playing with his penis and if he was ejaculating or not.[124]
[123] ts 733.
[124] ts 734 - ts 735.
Relevant to the farm incident, it was put to J that his father never drove to the farm. J disagreed with this and his evidence was that while his father usually got a lift with the accused or another uncle, on this occasion his father had driven his car and that 'dad drove when he had to drive'.[125]
[125] ts 729.
J agreed that there was one occasion when the accused picked up J and his father to drive them to the farm, although J said that this was not the specific occasion of count 6. It was then suggested that during the trip, with the accused driving and J's father in the passenger seat, J sat in the back seat laughing and pretending to play with himself. J disagreed with this, explaining 'I could never be or do anything stupid like that in front of my father. And I would not even do that anyway'.[126]
[126] ts 737.
Finally, it was put to J, and J denied, that his mother had caught J watching pornographic movies with his father, after which the accused and his wife P came and spoke to him about pornography. J's response to both of these propositions was 'not a chance'.[127]
[127] ts 737 - ts 738.
In relation to count 7, the incident at the grandparents' house:
(a)J admitted that the name of the street where his grandparents lived which he had given to the police was wrong. He agreed that this was him being confused about details and this was an example of, over time, his memory for specific things being blurred.[128] However, in re-examination J explained how he got the street name for his grandparents' address wrong when speaking to the police. He gave evidence that the street name he gave the police was in the same suburb and it had been the street where the accused and his wife had lived for a while.[129]
(b)J was unable to recall whether this or count 6 happened first, or how far apart these events were.
(c)J confirmed that this involved the same pornographic magazine as count 6, that the accused told him to bring it and he gave the magazine to the accused at the house. J agreed that he did not say he had given the magazine to the accused in his statement to the police. J explained 'I had to bring up certain memories that I don't want to bring up after I've gotten on with my life', and denied that this was different because it was not true.[130]
(d)The detail he gave in his evidence about sitting to the accused's right and looking at the magazine before others left the house were not mentioned in J's police statement or to prosecutors.[131]
(e)J could not recall where he hid the magazine after this incident. He agreed that this was a detail not mentioned in his police statement or to prosecutors.[132]
[128] ts 738.
[129] ts 803.
[130] ts 741.
[131] ts 741 - ts 742.
[132] ts 744.
Another version of what happened at the grandparents' house, was put to J in cross-examination and denied by him. The substance of this version was that one Easter time he went to church with the family, went in a car with the accused back to his grandparents' house, and the accused found him masturbating in the back room. J denied that this ever happened.[133]
[133] ts 748 - ts 749.
J agreed that his mother caught him having girls in his bedroom 'all the time' but when it was put to him that this happened when he was 13 or 14 J disagreed, and said that it was not before his first serious girlfriend at the age of 15.[134]
[134] ts 748.
In relation to the thigh touching, while J told police that the accused 'would drive me around and place my hand on his upper inner thigh near his testicles', J said nothing about feeling the accused's testicles and said nothing about this to the prosecutors before trial.[135] During cross‑examination J gave evidence that this had happened every time J and the accused were in a car together, however J also gave evidence of this having occurred in two cars in particular, a silver 4‑wheel drive and a red Holden Berlina. There was no reference to either of these cars in J's statement to police. However, I do note that consistently with his evidence at trial, he told the police that this happened 'every time I was alone in the car with him'.[136]
[135] ts 698 - ts 700.
[136] ts 706 - ts 707.
J agreed that in 2016 he had some conversations with C about whether or not her father, the accused, had done something sexual to her. The conversations took place mostly by text but there were a couple of face to face discussions.
J agreed that he had gone with C to the police to make their complaints about the accused together. He admitted that he had encouraged C to go to the police, but denied he had talked her into it, or tried to convince her that it was her father who had sexually abused her. He also denied the suggestion that he and another aunt had tried to convince C that it was her dad. J's evidence was that he had never suggested it was her dad; he had only said 'when she's ready to tell me who it is, then that's when we will talk about it.'[137]
[137] ts 692 and ts 768.

I have scrutinised J's evidence with great care. Having done so, and even after taking into account the forensic disadvantages for the accused because of the delay and paying heed to the Longman warning, I do not believe the accused's denials and I am satisfied beyond reasonable doubt as to the truth, accuracy and reliability of J's evidence about each of counts 4 to 7.
I am satisfied beyond reasonable doubt that the accused is guilty of each of counts 4 to 7 inclusive.
The facts which I have found in relation to each of counts 4 to 7 are set out in the attached schedule.

Consideration and findings - counts 8 - 18

I found that C was generally a credible witness who appeared to be truthfully describing incidents which had actually happened to her. As the State pointed out, there were many times during the course of her evidence where C appeared to have great difficulty in giving it, however, her demeanour is not necessarily the best guide to her accuracy and reliability.
Counsel for the defence submitted that C was not a credible and reliable witness due mainly to the inconsistencies in her evidence, her admitted lies in the text messages and the fact that she had lied to psychologists and psychiatrists who were treating her in 2016. The defence specifically relied on the evidence that C gave in the course of cross-examination which I reproduced in [272]. These matters, it was submitted, cast considered doubt on the reliability of C's evidence both that these things happened and that it was her father who did these things to her.
I need to remember that these inconsistencies all relate to cross‑examination on a prior out of court statement. What C said in text messages and emails to doctors, is not evidence of the facts in those text messages and emails. It is only relevant to an assessment of her credibility.
I should note that what the defence has termed a lie is really only a partial lie. C has consistently said all along that she was sexually abused. What she lied about was whether her father had sexually abused her.
C gave an explanation as to why she lied about who had abused her and also why she had not made any earlier complaint. It was to protect her family. C's evidence about her reasons for both saying what she did and her delay in making a complaint to the police - protecting her family - is both inherently credible and plausible, and I accept it. Of course by mid July 2017 C had witnessed her father sexually offending against A. At about this time her mother separated from her father. The family unit was damaged, there was nothing further to protect, and it was shortly after this, in August 2017, that C went to the police to make her complaint.
It is important to note that while there were some inconsistencies in her evidence and what she had earlier said to the police (which I will discuss when looking at each charge), C did not make any prior inconsistent statement to the police about the accused's offending, or say something completely contrary on oath to a court (such as in the case of G). The previous out of court statements are only admitted for the purpose of assessment of C's credibility.
On the issue of identity, I am satisfied beyond reasonable doubt that it is the accused who is the alleged offender and not somebody else (such as the 'big boy from the neighbourhood'). Given the description of all of these incidents given by C, most of which happened inside her home and many of which occurred at her shower time and bedtime, the offender could only have been the accused. There was no other adult male living in the house. There is no other adult male who supervised bath time. There is, in fact, no evidence about the 'big boy from the neighbourhood'. In her evidence at trial C clearly identified the person who did these things to her as her father.
For the reasons I have previously discussed in relation to the accused's credibility, I do not believe the accused's denials in relation to any of counts 8 to 18.
It is still necessary to scrutinise C's evidence with special care in relation to each charge, to see whether what she said happened did in fact happen, taking into account any evidence from the accused which I am prepared to accept.

Count 8

In relation to count 8, the showerhead incident, I believe C's evidence and I am satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of C's evidence of what happened to her. She was clearly describing something she had experienced, including being digitally penetrated by her father. In observing her demeanour she was obviously embarrassed and a little upset when describing this.
There is support for C's account about the existence of the detachable showerhead from P's evidence about the change in showerhead in the ensuite bathroom, and the fact that the detachable showerhead was used to make it easier to wash the children's hair. For the reasons I have given when discussing the accused's credibility, I prefer P's evidence about when the detachable showerhead was in place. I am unable to accept the accused's evidence that he changed the showerhead only a matter of months before the family moved house and I am also unable to accept that timing wise count 8 was not possible. It was possible, and I am satisfied beyond reasonable doubt that count 8 happened as C described.
There was only one inconsistency in C's evidence about count 8, and that relates only to her age; on an earlier occasion she had said she was 7 years old, while in her evidence at trial she said she was 6 years old. I do not consider this to be an inconsistency which casts any doubt on C's credibility and reliability about the specific act the subject of this count. There was no inconsistency in relation to what she said the accused had done. As she said in her evidence on oath 'I clearly remember what happened'. I found C's evidence about this and the showerhead incident to be truthful, accurate and reliable.
Having scrutinised C's evidence with great care, and after taking into account the forensic disadvantages for the accused because of the delay and paying heed to the Longman warning, I am satisfied beyond reasonable doubt as to the truth, accuracy and reliability of C's evidence about count 8. Accordingly I find the accused guilty of count 8.

Counts 9, 10 and 11

In relation to counts 9, 10 and 11, the conditioner incident and the subsequent lip gloss incident, once again I am satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of C's evidence that the accused did the specific act the subject of each of these charges.
While there was an inconsistency between her evidence at trial and her previous out of court statement about the age she was at the time, this is not something which leads me to conclude that C's evidence of the specific acts which she alleged the accused had done is neither credible nor reliable. In addition, it is the evidence on oath given by C which I am to proceed upon, and not what she has said in any earlier out of court statement.
As I have already observed, in cross‑examination C did not deviate in her evidence about what the accused had done. Her evidence about how her vagina was stinging after the digital penetration in the conditioner incident is inherently credible. Another mark of C's credibility is how she spoke honestly about how she was masturbating with the stick of lip gloss. As to what happened subsequently the subject of counts 10 and 11, I am satisfied beyond reasonable doubt that she was describing things she had experienced at the hands of her father, the accused.
My finding of guilt in count 8, another occasion where the accused digitally penetrated C, increases the likelihood that the accused committed the specific act the subject of count 9.
For the reasons I have discussed at [396] above, I do not accept any suggestion from the accused that it was impossible for the accused to commit counts 10 and 11 because C was not sleeping in a single bed at the time, and the accused was too tall and would not have fit on the bed. The evidence from the accused about C not sleeping in a single bed until she was 7 or 8 years old is, as I have found, inherently incredible and I reject it.
There is an issue about whether there was a sexual penetration in count 10. Having accepted C's evidence and having regard to the law that any penetration of the outer lips of the vagina is sufficient to establish a sexual penetration, I am satisfied beyond reasonable doubt that there was a sexual penetration in count 10.
My finding of guilt in counts 8 and 9, two other occasions where the accused digitally penetrated C, increases the likelihood that the accused committed the specific act the subject of count 10.
I have scrutinised C's evidence with great care. I have taken into account the forensic disadvantages for the accused because of the delay and the other matters I have directed myself pursuant to the Longman warning. Having done so, I am satisfied beyond reasonable doubt as to the truth, accuracy and reliability of C's evidence about counts 9, 10 and 11. I find the accused guilty of these counts.

Count 12

Moving on to count 12, the boy dance incident, the only inconsistency in relation to C's evidence about this incident is her age at the time. She previously said she 7 years old at the time, while in her evidence on oath she said she was 4 or 5 years old. In my view that inconsistency does not indicate that C's evidence is false or that she is not telling the truth about what happened. There is, otherwise, no inconsistency between any out of court statement and her evidence at trial.
C was clearly describing something she had experienced, and that experience of both having her father's penis in her mouth, and swallowing what she thought was urine at the time, was not something which she has made up or is likely to forget.
In discussing this incident during his evidence, the accused suggested he would never have done what C said he did, in splashing urine back up onto her vagina, because she might end up with another urinary tract infection. However, when I heard the evidence from the accused about C's history of urinary tract infections, it became apparent to me that this had not been an issue for C from the ages of 3½ to 4 years old. By that time, as the accused himself said, C's kidneys and bladder had returned to normal, there was no surgery required and no follow-up required. However, when I sought to confirm this at the time, as I have set out in [295], the accused suggested that C's kidneys and bladder were still an issue until she reached puberty. I do not believe it. As a matter of logic and common sense, if there was any issue about C's kidney or bladder until puberty, her parents would have made that clear to her. C was not aware of any such issue when this was put to her in cross‑examination. Accordingly, I do not believe the accused's evidence that he would not have splashed urine onto C as she described because of any ongoing issues with urinary tract infections or her kidney condition.
Having scrutinised C's evidence with great care, and after taking into account the forensic disadvantages for the accused because of the delay and paying heed to the Longman warning, I do not believe the accused's denials and I am satisfied beyond reasonable doubt as to the truth, accuracy and reliability of C's evidence about count 12. I find the accused guilty of count 12.

Count 13

As to count 13, the toilet stool incident, C's evidence as to the specific act by the accused the subject of this count, namely introducing his penis into her mouth, was unshaken during cross-examination.
Much was made in cross-examination about the type of the stool which had been used by C's brother. In my view, nothing turns on the type of stool and thus there has been no forensic disadvantage for the accused here. Whatever type of stool it was, C gave evidence that it was in the back toilet and she saw it at the time of count 13. As a matter of common sense and experience, given C's age at the time, 5, and the 16 months age difference between C and her brother, it is likely that he would still be using a stool in order to get up to use or sit on the toilet.
C's evidence of how, when the accused's penis was in her mouth, she could not breathe and felt like she was going to be sick is believable and credible. I am once again satisfied beyond reasonable doubt that she was describing things she had experienced at the hands of her father, the accused.
My finding of guilt in count 12, another occasion where the accused introduced his penis into C's mouth, increases the likelihood that the accused committed the specific act the subject of count 13.
I have taken into account the forensic disadvantages for the accused because of the delay and I have also applied the Longman warning. Having scrutinised C's evidence with great care, I am satisfied beyond reasonable doubt that C's evidence about the count 13 was truthful, accurate and reliable. I find the accused guilty of count 13.

Count 14

In relation to count 14, the guinea pig incident, while C described this incident as traumatic and a constant memory for her, when I look at her evidence with special care as I am required to do, there are some matters which give rise to a reasonable doubt in my mind as to whether this incident in fact occurred.
The main reason for my reasonable doubt arises from C's evidence that she was shown by the accused how to get the penises of the guinea pigs out, and her evidence in cross-examination when asked to describe a guinea pig's penis, together with saying that she could not remember whether a guinea pig's penis had two prongs. The accused has produced in evidence a photograph of a penis of a guinea pig, and an extract from a text book which describes that part of the male guinea pig's anatomy.[307] The penis does have two distinct prongs. Had C in fact seen the penis of a guinea pig, this is not something she was likely to forget.
[307] Exhibits 23 and 24.
There are other reasons why, in relation to this particular count, I am unable to accept C's evidence:
(a)First, P's evidence supports the accused's evidence that the family never kept guinea pigs. It is inherently unlikely that any guinea pigs from school would be drowned as C described.
(b)Secondly, I am not satisfied from all of the evidence I have heard in this case that the accused drowned either hermit crabs or guinea pigs. There is no evidence of any other act of animal cruelty by the accused.
(c)Thirdly, there were some internal inconsistencies in C's evidence about the number of guinea pigs which she said were held up to her vagina and what she could see (as to which, see [263] above).
Accordingly, I am not satisfied beyond reasonable doubt that the accused committed count 14, and I find him not guilty.

Counts 15 and 16

In relation to the bedroom incident, counts 15 and 16, it was apparent to me that that C found difficulty giving evidence about this and I noticed her become particularly upset in describing what occurred. The evidence she gave, in particular her description of how the accused penetrated her vagina with his penis, was in my view inherently credible. It was the first time the accused had penetrated her with his penis; something she would not forget.
For counts 15 to 16, like counts 10 and 11, the suggestion was made that it would have been impossible for the accused to have committed these acts because of the size of C's bed. For the reasons I have already given in relation to counts 10 and 11, I do not believe the accused's evidence that C was in a three quarter sized bed until she was 7 or 8 at the time of the family's move to their new home.
Another submission made by counsel for the accused is that it was unlikely that C was using nail polish at the age she said she was at the time of this incident. I am unable to agree. If she had a stick of lip gloss at the time of counts 10 and 11, when she was 7 years old, then as a matter of logic, common sense and experience, it is likely that she also had nail polish, including nail polish which is suitable for a child, at the time of these counts, when she was also 7 years old.
The inconsistencies between C's evidence at trial and her statement to the police, as I have set out in [264] do not, in my assessment, detract from C's general credibility or the reliability of her account of this incident.
My finding of guilt in counts 8, 9 and 10, other occasions where the accused digitally penetrated C, increases the likelihood that the accused committed the specific act the subject of count 15. I do not believe the accused's denials in relation to either count 15 or count 16.
After taking into account the forensic disadvantages for the accused because of the delay and applying the Longman warning, and scrutinizing C's evidence with special care I am satisfied beyond reasonable doubt as to the truth, accuracy and reliability of C's evidence about each of counts 15 and 16. I therefore find the accused guilty of these counts.

Count 17

I am also satisfied beyond reasonable doubt, and find, that C's evidence about count 17, the running shower incident, was truthful, accurate and reliable. As I have noted, C maintained her evidence about this during her cross-examination, explaining that in this incident, the accused was showering with her.
My finding of guilt in counts 12 and 13, two other occasions where the accused introduced his penis into C's mouth, increases the likelihood that the accused committed the specific act the subject of count 17.
I do not believe the accused's denial and, notwithstanding the delay and forensic disadvantages to the accused, applying the Longman warning, I am satisfied beyond reasonable doubt as to the truth, accuracy and reliability of C's evidence about count 17. I therefore find the accused guilty of this count.

Count 18

Finally as to the toothbrush incident, count 18, having heard all of the evidence, contrary to the submissions on behalf of the accused, I find that there is no difficulty timing wise in relation to the heat lamp. The submissions made on behalf of the accused depend on my accepting his evidence about when the heat lamp was installed, and I am unable to accept his evidence.
C was consistent in her evidence about the existence of the heat lamp and the incident generally. She did say she was in pre-primary, which would place the incident occurring during 2004, the year she turned 6. P gave evidence that the heat lamp was installed when the kids were little, in probably 2004, maybe 2003. For the reasons I have already given, where there is a conflict between the evidence of P and the evidence of the accused, I prefer P's evidence. Accordingly there is support for C's evidence about the existence of the heat lamp at the time of count 18.
While I am conscious of the forensic disadvantage in relation to count 18 in relation to proving or disproving the existence of the electric toothbrush, I do not believe the accused's denial of this incident. I am satisfied beyond reasonable doubt of the truth, accuracy and reliability of C's evidence about this incident.
My finding of guilt in count 11, where the accused's conduct involved procuring C to use a stick of lip gloss to masturbate herself increases the likelihood that the accused himself used an object, this time a toothbrush, to commit the specific act the subject of count 18.
Finally, I am satisfied beyond reasonable doubt that the placing of the toothbrush onto what she now knows to be her clitoris, constitutes a sexual penetration within the legal definition of that term.
I have scrutinised C's evidence with great care. Having done so, and even after taking into account the forensic disadvantages for the accused because of the delay and paying heed to the Longman warning, I am satisfied beyond reasonable doubt as to the truth, accuracy and reliability of C's evidence about count 18. I find the accused guilty of this count.

Conclusion in relation to counts 8 to 18

I find the accused guilty of counts 8 to 13, and counts 15 to 18 inclusive, and not guilty of count 14.
The facts which I have found in relation to each of counts 8 to 13 and counts 15 to 18 are set out in the attached Schedule.

SCHEDULE

Offending against G

Count 1

1.The offender and the victim, G are second cousins. They met through their mothers when G was aged 10 and the offender aged 19. The offender and G began spending time together doing activities including going to the beach (the offender being a member of a local surf club) and water parks.
2.At the time of count 1, in mid 1983, G was 11 years old and the offender was 20 years. (I make that finding based on the evidence from both G and the offender that they met when G was 10 years old, and that this incident occurred about a year after meeting him.)[308] It was around the time of G's birthday and the offender suggested that they could celebrate his birthday and could have a few drinks. The offender took G to the beach during the afternoon to a local surf club, going for a paddle on the club boards there. The offender drove back to his parents' home, where he then lived, with G in the passenger seat. The offender stopped and bought some beer on the way back to his parent's home. The offender told G that his parents were away for the weekend and they could have a few drinks. G had never drunk alcohol before. In the living room of the house the offender poured drinks into small glasses and he and G played a game where they had to drink as much as possible in a short period of time. G was drunk, feeling dizzy and a little bit ill.
[308] ts 142.
3.The offender pulled out a mattress from the bedroom and put that on the floor in front of the television and the two of them sat or laid on the mattress to watch a movie. While G lay on his left hand side facing the television, the offender lay behind G 'spooning' him. Somehow, although G could not remember how, both he and the offender were only wearing briefs. The offender put his hand on G's penis and started stroking it, over his briefs, moving it up and down.

Offending against J

4.J is the nephew of the offender. At the time of these offences J was aged between 13 and 14 and the offender was aged between 36 and 38.

Count 4

5.J and the offender were in the living room of the offender's house watching TV. J and the offender would often talk about sexual things. On this occasion, J asked the offender whether his penis was the right size or too small. The offender suggested that they measure it and find out. The offender got up to get a ruler and came back to the couch. Both the offender and J both pulled their pants down and measured each other's penises. As this occurred both J's and the offender's penises were erect. Each stroked their own and each other's penises to get them hard in order to measure them.[309] The offender masturbated to ejaculation.
[309] ts 663 - ts 665.

Count 5

6.J was at the offender's home, in the living room sitting on a couch watching tv when 'one thing led to another' and his hand was on the offender's penis. J started to masturbate the offender on top of his clothes. The offender remained seated until he ejaculated - he told J that he had ejaculated. The offender then got up to get tissues.

Count 6

7.Count 6 occurred when the offender and J travelled to a farm owned by the offender's wife's brothers (also J's uncles, J's father's brothers). J, his father and the offender drove to the farm together in J's father's car, with J's father driving.
8.J had taken a pornographic magazine on that trip which he had placed under the driver's seat. This was a magazine which J had obtained from a friend's father's garage and which the offender had asked him to bring on the trip.
9.At lunchtime, the offender and J went together to get lunch from a lunch bar down the road. The offender drove. Before reaching the lunch bar, he pulled the car over to a side street or gravel track and asked J to get the magazine. J got the magazine out. The offender then pulled down his pants and while looking at the magazine masturbated to ejaculation, calling out the name of one of the girls in the magazine. The offender grabbed some tissues from his pocket, ejaculated into the tissues, then pulled his pants back up, threw the tissues out the window and drove off.

Count 7

10.J, the offender, J's grandmother and grandfather and also the offender's wife, P were at J's grandparents' house. They all went out and left J and the offender at the house. The two of them were in the tv room. J had the same pornographic magazine as count 6, which the offender had told him to bring with him. J had put this magazine inside another magazine so no one could tell what they were looking at it.
11.J sat next to the offender, on the offender's right. Together they looked at the magazine which was an x rated magazine. One of the photos in the magazine was of a man with red testicles having sex with a woman. J asked the offender why the man in the photo had red balls. The offender told J that this was because the man was about to ejaculate. The offender, who had pulled his pants down once everyone had left and started playing with his penis, then ejaculated. The offender went and cleaned himself up and J then hid the magazine. The two of them returned to watching tv. There was no discussion about what had happened.

Offending against C

12.C is the offender's biological daughter. At the time of these offences C was aged between 4 and 7 and the offender was aged between 37 and 43.