THE STATE OF WESTERN AUSTRALIA -v- JM [2026] WADC 42

[2026] WADC 42 [2026] WADC 42 [PB] Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CRIMINAL LOCATION : PERTH CITATION : THE STATE OF WESTERN AUSTRALIA -v- JM [2026] WADC 42 CORAM : CURWOOD DCJ HEARD : 25 - 27, 30 - 31 MARCH 2026 DELIVERED : 27 MAY 2026 FILE NO/S : IND 1950 of 2024 BETWEEN : THE STATE OF WESTERN AUSTRALIA AND JM Catchwords: Criminal law - Trial by judge alone - Six counts of sexual penetration of a child under the age of 13 years - Three complainants - Persistently engaging in sexual conduct with a child under the age of 16 years - Historical allegations Legislation: Criminal Code (WA), s 319(1), s 320(2), s 321A(1), s 321A(2) Criminal Procedure Act 2004 (WA), s 118, s 119(1), s 119(3), s 120(2) Evidence Act 1906 (WA), s 31A, s 37, s 38, s 39 Restraining Orders Act 1997 (WA), s 4 -- 1 of 93 -- [2026] WADC 42 [2026] WADC 42 [PB] Page 2 Result: Verdict of not guilty on count 1 Verdicts of guilty on counts 2 - 7 inclusive Representation: Counsel: The State of Western Australia : Mr L K Rosenthal Accused : Ms F A Cain Solicitors: The State of Western Australia : State Director of Public Prosecutions Accused : Cathal Smith Legal Pty Ltd Case(s) referred to in decision(s): De Silva v The Queen (2019) 268 CLR 57 DKA v The State of Western Australia [2017] WASCA 44 LNN v The State of Western Australia [2021] WASCA 39 Longman v The Queen (1989) 168 CLR 79 R v AR [2026] HCA 10 R v KMP [2024] SADC 100 The State of Western Australia v Cable [2026] WADC 34 Walsh v The State of Western Australia [2024] WASCA 78 -- 2 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 3 Contents Elements of each charged offence ..................................................................................... 8 Sexual penetration of a child under the age of 13 years .................................................... 8 Persistently engaging in sexual conduct with a named child under the age of 16 years ... 9 Overview of the case ....................................................................................................... 10 The evidence called at trial .............................................................................................. 11 Uncontroversial facts I find on the evidence that was led at trial.................................... 12 Legal directions general....................................................................................................... 15 Trial by judge alone ......................................................................................................... 15 Legal principles - directions ................................................................................................ 15 Presumption of innocence ............................................................................................... 15 Burden of proof ............................................................................................................... 15 Standard of proof ............................................................................................................. 16 Right to silence and the accused's evidence .................................................................... 16 Verdict based on evidence ............................................................................................... 17 Circumstantial evidence .................................................................................................. 17 Inferences ........................................................................................................................ 17 Assessing witnesses ......................................................................................................... 18 Special witnesses and transcript ...................................................................................... 19 Prior inconsistent statements ........................................................................................... 20 Lies .................................................................................................................................. 20 The accused elected to give evidence .................................................................................. 21 Accused's examination-in-chief........................................................................................... 24 Cross-examination of the accused ................................................................................... 26 Father's illness ................................................................................................................. 26 Relationship with LS ....................................................................................................... 26 Children's routine during Sunday visits ........................................................................... 26 The accused being alone in his bedroom with the children ............................................. 27 Camera ............................................................................................................................. 27 Television and viewing pornography .............................................................................. 27 TMM's alleged disclosure about her grandfather JB ....................................................... 27 AM's alleged threats to the accused................................................................................. 28 LLE at the Palmyra house ............................................................................................... 29 The flyscreen on the accused's bedroom window ........................................................... 29 Wearing of a beanie ......................................................................................................... 29 Re-examination of the accused ........................................................................................ 30 -- 3 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 4 Assessment of the accused's credibility ........................................................................... 30 AM's alleged threats ........................................................................................................ 31 The accused's wearing of a beanie................................................................................... 31 Flyscreen in the accused's bedroom window................................................................... 31 Other credibility observations ......................................................................................... 32 The accused's denials - application of the legal test ........................................................ 32 The complainant TMM's evidence ...................................................................................... 33 2013 child witness interview ........................................................................................... 33 TMM's account of the alleged sexual act in count 1 ........................................................... 34 Some inconsistencies in the account ............................................................................... 34 2021 child witness interview ........................................................................................... 35 Count 2 ................................................................................................................................ 35 Count 3 ................................................................................................................................ 37 Count 4 - 'You done good' ................................................................................................... 38 Count 5 - persistent sexual conduct ..................................................................................... 38 Watching of pornography in the Palmyra house ............................................................. 39 TMM's pre-recorded evidence taken on 24 April 2025................................................... 40 2013 child witness interview ........................................................................................... 40 Age at time of offending.................................................................................................. 40 Cross-examination of TMM ............................................................................................ 41 Pornography .................................................................................................................... 42 Contact with LLE ............................................................................................................ 42 Allegations concerning maternal grandfather.................................................................. 43 Re-examination of TMM ................................................................................................. 43 The complainant LLE's evidence ........................................................................................ 43 2023 child witness interview ........................................................................................... 43 Count 6 ................................................................................................................................ 44 Count 7 ................................................................................................................................ 44 Examination-in-chief of LLE .......................................................................................... 46 Other occasions of similar offending............................................................................... 47 LLE's relationship with TMM ......................................................................................... 48 Cross-examination of LLE .............................................................................................. 48 Lollipop reference ........................................................................................................... 49 LLE's discussions with TMM .......................................................................................... 49 'Come to put a very bad man in jail' ................................................................................ 50 2019 family gathering and Facebook photo .................................................................... 50 -- 4 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 5 Re-examination of LLE ................................................................................................... 50 Further legal directions ........................................................................................................ 51 Family and domestic violence and delay......................................................................... 51 Delay in complaint .......................................................................................................... 52 Longman .......................................................................................................................... 53 Cross-admissibility and tendency application ................................................................. 55 Contextual evidence ........................................................................................................ 55 Tendency evidence - legal principles .............................................................................. 56 Common features............................................................................................................. 57 Is the tendency established? ............................................................................................ 57 Use of the tendency ......................................................................................................... 58 Other witnesses called by the prosecution....................................................................... 58 Evidence of AM - TMM's mother and accused's ex-wife ................................................... 59 Examination-in-chief of AM ........................................................................................... 59 Cross-examination of AM ............................................................................................... 60 Re-examination of AM .................................................................................................... 61 Evidence of MP - accused's sister and LLE's grandmother................................................. 61 Cross-examination of MP ................................................................................................ 62 Re-examination of MP .................................................................................................... 64 Witnesses called by the accused .......................................................................................... 64 FM ................................................................................................................................... 64 Cross-examination of FM ................................................................................................ 65 JLM.................................................................................................................................. 66 Examination-in-chief of JLM .......................................................................................... 66 Cross-examination of JLM .............................................................................................. 66 TH .................................................................................................................................... 67 Examination-in-chief of TH ............................................................................................ 67 Cross-examination of TH ................................................................................................ 67 Closing addresses and issues raised as to the credibility of the complainants .................... 69 Short overview of the prosecution case ........................................................................... 69 Short overview of the defence case ................................................................................. 70 Motive to lie direction ..................................................................................................... 72 Resolution of issues ......................................................................................................... 73 TMM's evidence and why I accept it as being honest accurate and reliable ................... 73 Inherent incredibility and unreliability of TMM's evidence................................................ 74 Watching pornography .................................................................................................... 74 -- 5 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 6 LS seeing nothing untoward ............................................................................................ 76 Height of bed ................................................................................................................... 77 Alleged disclosure about JB ............................................................................................ 79 No recollection of 2013 CWI .......................................................................................... 79 Overall assessment .......................................................................................................... 79 LLE's evidence and why I accept it as being honest accurate and reliable ..................... 80 Contamination of LLE and/or TMM's evidence ............................................................. 81 Count by count analysis....................................................................................................... 85 Count 1 ............................................................................................................................ 85 Element of identity for counts 2, 3, 4 and 5 .................................................................... 86 Count 2 ............................................................................................................................ 86 Count 3 ............................................................................................................................ 87 Count 4 ............................................................................................................................ 88 Count 5 - Persistent sexual conduct................................................................................. 88 Count 6 ............................................................................................................................ 89 Count 7 ............................................................................................................................ 91 -- 6 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 7 CURWOOD DCJ: 1 The accused was arraigned before me on 25 March 2026 and pleaded not guilty to the following charges on a Perth indictment: 1. On a date unknown between 1 January 2012 and 21 January 2013 at [Palmyra]1 JM sexually penetrated AJM, a child under the age of 13 years, by introducing his penis into AJM's mouth; 2. On another date unknown between 1 January 2012 and 21 January 2013 at [Palmyra] JM sexually penetrated TMM, a child under the age of 13 years, by introducing his penis into her mouth. 3. On another date unknown between 1 January 2012 and 21 January 2013 at [Palmyra] JM sexually penetrated TMM, a child under the age of 13 years, by introducing his penis into her mouth. 4. On another date unknown between 1 January 2012 and 21 January 2013 at [Palmyra] JM sexually penetrated TMM, a child under the age of 13 years, by introducing his penis into her mouth. 5. Between 1 January 2012 and 21 January 2013 at [Palmyra] JM persistently engaged in sexual conduct with TMM, a child under the age of 16 years. 6. On a date unknown between 7 April 2012 and 8 April 2014 at [Palmyra] JM sexually penetrated LLE, a child under the age of 13 years, by engaging in cunnilingus. 7. On another date unknown between 7 April 2012 and 8 April 2014 at [Palmyra] JM sexually penetrated LLE, a child under the age of 13 years, by introducing his penis into her mouth. 2 On 5 February 2026 Herron DCJ ordered, by consent of the parties, that the trial of the charges on the indictment be by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA). 3 I now publish my reasons for the verdicts I am about to deliver. 1 See [4] below. -- 7 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 8 4 Throughout these reasons I will refer to each complainant by initials so that they may not be identified. I will also refer to the names of people in the evidence by their initials in such a way that each complainant is unable to be identified. I have changed the location of actual events to reduce the risk of any of the complainants being identified. Elements of each charged offence 5 Counts 1, 2, 3, 4, 6 and 7 allege sexual penetration of a child under the age of 13 years. Count 5 alleges the accused persistently engaged in sexual conduct with a named child, TMM, who was then under the age of 16 years. 6 Each count identifies a date range and place of the alleged offence. The time period and place of each alleged offence are specified because the State is required to identify when and where the alleged offence is said to have occurred with sufficient detail to enable the accused to meet the charge against him. However, the State does not have to prove beyond reasonable doubt that each offence was actually committed in the period and place specified in the indictment. Sexual penetration of a child under the age of 13 years 7 The three elements of an offence of sexual penetration of a child under the age of 13 years that the State must prove beyond reasonable doubt in the context of this case are as follows: 1. First, identity - the State must prove that the person who did the things that the State say constitutes the offence was the accused, JM, and not someone else. 2. Second, on each occasion alleged in counts 1, 2, 3, 4, 6 and 7 that the accused, JM, sexually penetrated the child identified in the individual count. 3. Third, that at the time that JM sexually penetrated the child in question, he or she was under the age of 13 years. 8 The expression 'to sexually penetrate' is defined in s 319(1) of the Criminal Code (WA) (the Code) as: … (c) to introduce any part of the penis of a person into the mouth of another person; or (d) to engage in cunnilingus or fellatio; or -- 8 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 9 9 Although, sexual penetration may take many forms, for the purposes of this trial: 1. Counts 1, 2, 3, 4 and 7 allege that the accused sexually penetrated the child identified in the individual count (AJM, TMM and LLE respectively) by introducing his penis into his or her mouth. 2. Count 6 alleges that the accused sexually penetrated LLE by engaging in cunnilingus. The word cunnilingus is to be given its ordinary meaning. It includes the licking and kissing and sucking of the genitals of a female including the external aspects of the labia. Cunnilingus does not involve penetration of the labia. Persistently engaging in sexual conduct with a named child under the age of 16 years 10 The elements of the offence charged on count 5, being that JM persistently engaged in sexual conduct with TMM, a child under the age of 16 years, are as follows: 1. Identity - the State must prove that the person who did the things that the State says constitutes the offence was the accused, JM and not someone else. 2. That the accused persistently engaged in sexual conduct with the complainant, TMM. 3. That the complainant, TMM was, at the time of the offence, under the age of 16 years. 11 As the Code in 2013 then was, a person persistently engages in sexual conduct with a child if that person does a sexual act in relation to the child on four or more occasions each of which is on a different day.2 12 Under s 321A(1) of the Code, a 'sexual act' is an act that would constitute a prescribed offence. A 'prescribed offence' is further defined in that section to include an offence under s 320(2), being sexual penetration of a child under 13. 2 Relevantly, for the time period alleged on the indictment, the provisions of s 321A(2) of the Code provided that four or more occasions were required rather than the present version which is three or more occasions. -- 9 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 10 13 The State relies upon one type of prescribed offence relevant to this count, sexual penetration by JM introducing his penis into TMM's mouth. Accordingly, I must be satisfied beyond reasonable doubt that, during the period 1 January 2012 to 21 January 2013, JM committed four separate acts of sexual penetration against TMM, each occurring on a different day, by introducing his penis into TMM's mouth. Overview of the case 14 The accused married AM in March 2005 and from that union, the accused and AM had two children, a daughter, TMM, who was born in April 2008 and a son, AJM, who was born in March 2010. The accused's marriage to AM broke down during mid to late 2010 and they separated. The accused moved from the matrimonial home he shared with AM and his children to live with his parents in their house in Palmyra. I will refer to this house throughout my reasons as the 'Palmyra house'. 15 From about early 2011, pursuant to an agreed parenting plan between AM and the accused, TMM and AJM visited the accused at the Palmyra house each Sunday. The weekly visiting routine was that AM would drop TMM and AJM at the Palmyra house every Sunday morning and the accused would return them to their mother's house in the late afternoon or early evening of the same Sunday. This arrangement continued until January 2013, though the last few visits took place at the accused's home in O'Connor after he moved there in late 2012. 16 The accused is one of six children. His older sister, MP has a granddaughter who is the accused's grandniece, named LLE, who was born in April 2009.3 During the relevant period LLE lived with her mother and grandmother in the same street as the Palmyra house and, before she commenced school, regularly visited the Palmyra house during the day, where she was cared for by her great-grandmother. 17 The State's case is that between 1 January 2012 and 21 January 2013 at the Palmyra house, the accused sexually assaulted AJM (count 1) and TMM on multiple occasions (counts 2, 3, 4 and 5). The State further alleges that between 7 April 2012 and 8 April 2014 the accused sexually assaulted LLE on two charged occasions at the Palmyra house (counts 6 and 7) and on at least two further uncharged occasions. TMM was interviewed by police on 15 February 2023. 3 Birth certificates proving the complainants' dates of birth was Exhibit 7. -- 10 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 11 As a result of what she told police, an investigation was commenced and the accused participated in a police interview in June 2013. When questioned, he denied any sexual offending. He was not charged at that time. TMM made a complaint to police in December 2021, and LLE did so in December 2023. The accused was arrested in late December 2023 (on LLE's allegation) and early January 2024 (on TMM's allegation). 18 The defence case is that the accused did not sexually assault any of AJM, TMM or LLE. The accused gave evidence at trial and denied each charge on oath. The defence challenges the credibility and reliability of the evidence of TMM and LLE, having regard to the significant delay and lengthy passage of time between the alleged events and the trial, their very young age at the time of the alleged offending, inconsistencies in their accounts, and the possibility that their evidence may have been contaminated as a consequence of conversations between them. The defence further submits that the passage of time has forensically disadvantaged the accused, that a Longman direction is appropriate, and that none of the alleged acts of sexual wrongdoing is corroborated by any medical or forensic evidence. The defence also relies upon the accused's denials in his police interview in 2013 and his denials at trial. The evidence called at trial 19 The prosecution called evidence from: (a) TMM; (b) LLE; (c) AM, the accused's ex-wife and the mother of TMM and AJM; (d) MP, the grandmother of LLE and the accused's sister; and (e) Sergeant Jillian Riddle, the investigating officer of Western Australia Police Force. 20 The State also tendered a number of documentary and audio-visual exhibits including the record of interview I have referred to which the accused participated in during June 2013, photographs of the Palmyra house, Landgate, birth records and sketches made by witnesses. -- 11 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 12 21 The accused elected to give evidence. In addition to the accused giving evidence, he also called three witnesses, his: (a) brothers, FM and JLM; and (b) his sister, TH. 22 Defence counsel also read into evidence part of a police witness statement given by the accused's former girlfriend, LS. The State prosecutor also read into evidence proofing notes of LLE about conversations that she had with TMM. 23 In the next paragraph, I set out some background evidence concerning the accused and his family and the weekly Sunday visits by TMM and AJM to the Palmyra house during 2011 and 2012. This evidence was largely uncontroversial and was not challenged in cross-examination or was accepted by the accused. Uncontroversial facts I find on the evidence that was led at trial 24 Before turning to the issues which I consider define the case of whether the alleged sexual offending happened and can be proved by the prosecution beyond reasonable doubt, on the evidence led at trial, I make the following findings of fact: 1. TMM is the accused's biological daughter, born in April 2008. AJM is the accused's biological son, born in March 2010. Their dates of birth were established by birth certificates tendered as exhibits at trial. 2. LLE is the granddaughter of MP, who is the accused's sister. LLE was born in April 2009. LLE's date of birth was likewise established by her birth certificate which was tendered in evidence. 3. The accused was previously married to AM. They married in March 2005. The marriage subsequently broke down and they separated in or about the second half of 2010. Following the separation, the accused moved from the former matrimonial home to live at the Palmyra house, which was the home of his parents. He lived there for about two years until around late October 2012. 4. From about early 2011, TMM and AJM visited the accused each Sunday at the Palmyra house under a parenting plan agreed by AM and the accused. From the beginning of 2012 -- 12 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 13 until at least 18 October 2012, the Sunday visits occurred, I find based on all the evidence, every Sunday with only one or two exceptions. During some of this period JM was in a relationship with LS. LS attended the Palmyra house during some of the Sunday visits. 5. Between late 2011 and late 2012, only the accused and his parents, (father RM and mother GM), were living at the Palmyra house. The accused's father was then approximately 76 - 77 years of age and was suffering from terminal cancer. He died in mid-March 2013. 6. The accused has five siblings. All of his siblings except for a brother, RM gave evidence during the trial. A family tree exhibited by the investigating officer showed that RM was deceased, but no direct evidence was given about this. In the years before the offending and during the date range of the alleged offending it appeared common for some or all of the accused's brothers and sisters and their family members to go to the Palmyra house for lunch on Sundays. During the period of the Sunday visits by JM's children, differing evidence was given by the witnesses of the frequency of who attended lunches, and I will turn to that later in my reasons. 7. The visits by JM's children followed a routine. AM dropped TMM and AJM to the Palmyra house on Sunday morning at approximately 8.00 am and the accused drove them back to AM's house during the late afternoon or early evening. They would have lunch at the Palmyra house and after lunch AJM would have a nap in a bedroom. 8. Part of the Palmyra house had three bedrooms accessed by a hallway. This part of the house was the subject of much oral evidence in the trial. The hallway and bedrooms may be seen in a photograph (Exhibit 2.7). The accused's bedroom was the first bedroom seen in the photograph. He stayed in this bedroom from the time he moved into the Palmyra house after his separation from AM. The next bedroom along the corridor was a room in which AJM had a sleep in the afternoon after lunch and which also had toys in it. The room at the end of the hallway was seemingly not relevant for any purposes of the trial but had spare storage capacity. -- 13 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 14 9. The accused's bedroom had a window which opened to a dividing fence with a neighbour's property and consisted of an area the length of the house which had sand and was approximately 1 ½ m wide.4 The window by the time of the accused's arrest had roller shutters on it. Those roller shutters were not covering the window in the period 2011 - 2013. 10. When AJM was sleeping after lunch on Sundays, TMM would have a mango outside the house. Less commonly, TMM was given another piece of fruit if there was no mango but I find most commonly the fruit she was given was a mango. 11. During the period 2011 - 2013 the accused worked on a full-time basis, seemingly on weekdays. He never worked on Sundays. On the days he worked he did not return home to the Palmyra house until about 3.00 pm or 3.30 pm. JM worked in a permanent full-time position which also entitled him to annual leave and sick leave. 12. LLE lived with her mother, brother and grandmother in a house in the same street as the Palmyra house. She visited and was looked after by her great-grandmother in the Palmyra house. 13. In October 2012, the accused purchased a house in O'Connor. A Landgate Property Sales Report tendered as an exhibit confirms that the purchase was completed on 18 October 2012. He moved into that house shortly after purchasing it, but the date that he moved was not clear. Given that the accused accepted that there were only a few visits after he moved into the O'Connor house, I find that he did not move into the O'Connor house immediately. 14. After the accused moved to the O'Connor house, TMM and AJM visited and had sleepovers there on two (or perhaps three) occasions. The final occasion was on 20 January 2013. At around that time, AJM had an inflamed penis which required medical attention. A medical report recording that fact was read into evidence. For the avoidance of any doubt, I make clear that I have not drawn any inference from the existence of AJM's inflamed penis. The prosecution only relied upon that fact to record the date of the accused's final contact with his children. 4 Exhibit 5.2. -- 14 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 15 15. On 29 December 2023, the accused was arrested in relation to LLE's allegations. On 3 January 2024, the accused was arrested in relation to the allegations by TMM and concerning AJM. After his arrest, the accused did not participate in any further interview with police. Legal directions general Trial by judge alone 25 As a matter of law, the following general principles apply. I am required as far as practicable to apply the same principles of law and procedure as would be applied in a trial before a jury.5 If the law requires or prohibits a direction of law that would be given to a jury, I must take that requirement or prohibition into account in this trial.6 26 My judgment must state and include the principles of law that I have applied and the findings of fact upon which I have relied in coming to the verdict.7 It is not enough to simply state the principles and the factual conclusions; my judgment must reveal the process of reasoning which makes clear how conclusions have been reached. Where, in the case of conflicting evidence, the evidence of one witness has been preferred over that of another, I must state why that is the case. 27 I now outline the relevant legal principles which I have applied in my reasoning. Legal principles - directions Presumption of innocence 28 JM is presumed to be innocent of each count on the indictment. This presumption of innocence remains throughout the duration of the trial and remains unless or until the State has proven JM's guilt on the count I am then considering. Burden of proof 29 The burden of proving guilt on each count rests on the State and never shifts to JM. JM is not required to prove his innocence or to give or to call evidence in his defence. 5 Criminal Procedure Act 2004 (WA), s 119(1). 6 Criminal Procedure Act, s 119(3). 7 Criminal Procedure Act, s 120(2). -- 15 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 16 Standard of proof 30 The State must prove guilt beyond reasonable doubt. The State discharges this burden by proving each and every element of the count being considered beyond reasonable doubt. Proving some elements but not others does not suffice. 31 Proof beyond reasonable doubt is the heaviest burden of proof known to the law. It is not an impossible standard. Establishing that it is more likely than not that JM is guilty, or is possibly or probably guilty, does not suffice. A suspicion or strong suspicion of guilt does not suffice. Guilt must be proven beyond reasonable doubt. 32 The State does not need to prove beyond reasonable doubt each and every statement its witnesses say, but the State must prove beyond reasonable doubt each and every element of the charge being considered. Right to silence and the accused's evidence 33 JM has a right to silence. That right commenced from his arrest and continues through the trial. JM was not obliged to speak to the police or give evidence at his trial. He participated in an interview with police in June 2013 when he had no obligation to do so. 34 JM elected to give evidence at his trial. I must assess JM's evidence in the same way as I assess the evidence of all other witnesses. 35 JM gave sworn evidence denying the allegations. The burden of proving the charges beyond reasonable doubt rests entirely on the prosecution. JM is presumed innocent and bears no obligation to prove anything. Accordingly, it is not necessary that I believe JM's denials for there to be a reasonable doubt. If JM's denials are even reasonably possibly true, or, put another way, they might be true, the prosecution will have failed to prove its case.8 I may only find him guilty if I reject his denials as not reasonably possibly true and I am satisfied beyond reasonable doubt of his guilt on the prosecution evidence. 36 The question for me is not whether I prefer the evidence of the complainants to that of JM. Even if I were to prefer the evidence of TMM and LLE to that of JM, that would not be determinative of his guilt. 8 De Silva v The Queen (2019) 268 CLR 57 [10] - [12]. -- 16 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 17 37 JM may be found guilty of any count if, and only if, I am satisfied beyond reasonable doubt that the prosecution has proved each and every element of that offence. Equally, if, having considered all of the evidence, I am unsure where the truth lies in relation to any count, my verdict on that count must be not guilty. 38 Each count must be considered separately, and a separate verdict is required in respect of each count. A verdict of guilty or not guilty on one count does not necessarily mean the same verdict is reached in respect of any other count. 39 I give JM credit for participating in a police interview and for giving sworn evidence at trial in circumstances where he was not obliged to do so on either occasion. JM's decision to give evidence does not, however, alter the burden or the standard of proof, which remain fixed on the prosecution throughout. Verdict based on evidence 40 The verdicts must be reached without prejudice, sympathy, speculation or conjecture and must be based solely on the evidence presented at the trial. The evidence consists of the witnesses' answers to questions under oath or affirmation, the exhibits, and any formal admissions. Counsel's questions, submissions and comments are not evidence. I must not be concerned about the consequences of my verdict. Circumstantial evidence 41 Facts in issue may be proven by direct evidence alone, by a combination of direct evidence and circumstantial evidence, or by circumstantial evidence alone. Circumstantial evidence does not prove a fact directly; rather it increases the probability or likelihood that the fact in issue exists. In a circumstantial case, it is not always necessary that each individual fact be proven beyond reasonable doubt in order to reach a conclusion of guilt. However, if there is an intermediate factual step in the process of reasoning towards guilt that is indispensable, then that step must be proven beyond a reasonable doubt. Inferences 42 Inferences may be drawn from proven facts. An inference is a logical conclusion from facts that have been proven. There must be a logical and rational connection between the facts I have found -- 17 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 18 established and any deductions or conclusions I reach. An inference cannot be based on conjecture or speculation. 43 In drawing inferences, I do not consider the facts in isolation but consider the combined weight of the facts that I find proven. Individual facts from which inferences are sought to be drawn do not have to be proven beyond reasonable doubt unless an individual fact is an element of the offence or an indispensable link in the chain of reasoning towards guilt. It was not suggested by either counsel that any circumstantial fact is an indispensable link in the chain of reasoning towards an inference of guilt. 44 If the inference I am being asked to draw is an inference of guilt, I must consider the combined weight of all the facts and circumstances as a whole. An inference of guilt can only be drawn if it is the only rational or reasonable inference that the facts permit me to draw, and only if there is no inference consistent with innocence reasonably open on the evidence. Assessing witnesses 45 It is necessary for me to assess the credibility and reliability of the evidence of each witness and thereby determine the weight to be given to their evidence. In this case, the credibility and reliability of the evidence given by the State witnesses TMM, LLE, MP and AM is challenged and requires careful assessment. The State also challenged the credibility and reliability of the evidence given by JM and some of the witnesses he called. 46 Credibility involves assessing the honesty of the witness. Reliability is whether a witness' account of the event they are describing is accurate. An honest witness doing their very best to assist the court can be mistaken and inaccurate. A dishonest witness setting out to deliberately mislead the court can be a convincing witness. The court may accept or reject the whole or part of the evidence of any witness. 47 Matters that may assist in determining the credibility and reliability of a witness include, but are not limited to: • what the witness has said in their evidence; • the manner in which the witness gave their evidence; • whether there has been any embellishment, exaggeration or fabrication; -- 18 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 19 • the consistency, clarity and cogency of their evidence; • the opportunity the witness had to see, hear or know the things they testified about; • inconsistencies, if any, in their evidence or previous statements; • the plausibility or implausibility of their evidence; • how their evidence compares to other evidence which I do accept; • the lapse of time between the events and the witness giving evidence; and • the personal characteristics of the witness at the time of the event and at the time they gave evidence. 48 If there are any inconsistencies, I must determine whether the inconsistencies are significant, whether there is any reasonable explanation, and if and how they affect the witness' credibility and reliability. I am mindful that some witnesses may feel apprehensive when giving evidence in a courtroom and this may affect their demeanour; that should not necessarily reflect on their credibility.9 49 There is no rule of law that requires TMM and LLE's evidence on the count I am considering to be corroborated for the court to be satisfied beyond reasonable doubt of JM's guilt on a particular count. Each of TMM and LLE's evidence alone on the count I am considering is sufficient. JM can be convicted on the uncorroborated evidence of TMM or LLE if the court is satisfied beyond reasonable doubt that the evidence of the witness I am considering is honest, accurate, reliable and truthful in respect of all elements of the count then being considered. However, the court is not bound to accept uncontradicted evidence. Special witnesses and transcript 50 TMM and LLE were declared special witnesses. They were both interviewed by specialist police officers and their interviews, which were edited by the consent of the parties, form part of their evidence-in-chief. TMM's evidence was heard at a pre-recording before a different judge. LLE's evidence was heard at the trial before me. TMM and LLE both gave evidence from remote rooms. 9 In describing the various legal principles, I have adopted much of the terminology used by his Honour Judge Bowden in The State of Western Australia v Cable [2026] WADC 34 [10] - [57] (Cable). -- 19 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 20 I recognise that these are ordinary procedures of the court and that no adverse inference against JM should be drawn from the fact that such arrangements were made. These arrangements did not detract from my ability to make an assessment of the credibility of these witnesses. The transcript of the trial is an aid to my memory; it is only used by me where I am satisfied that the transcript accords with my recollection of the witness' evidence. The evidence is what the witness said in their evidence not the transcript. I must not speculate about what witnesses who were not called may or may not have said and only act upon evidence which was adduced in the court, bearing in mind that it is for the State to prove any count against the accused beyond reasonable doubt. Prior inconsistent statements 51 It is the evidence given on oath or affirmation at this trial that I must consider. If a witness has made a statement out of court that is inconsistent with their evidence at trial, I may take that prior inconsistent statement into account when assessing that witness' credibility. Where such inconsistencies relate to the alleged sexual abuse, they are significant to my assessment of the credibility and reliability of the witness' evidence, and I will consider them carefully. Lies 52 If I find that a witness has lied, that can be a factor in my assessment of that witness' credibility. Whether and how it affects credibility is a matter entirely for my assessment. 53 I am entitled to consider whether the evidence has thrown up anything which might indicate that either TMM or LLE had some motive for making a false complaint or for giving false evidence. The apparent absence of a motive to lie cannot strengthen the prosecution's submission that the complainants' evidence was truthful. If I find that there is no motive to lie, that does not mean that either complainant is telling the truth. I also remind myself that there is no onus on JM to prove that any witness had a motive to lie. 54 With respect to any statements made by JM which I find to be lies, I remind myself that even if I were to find that JM told lies, I cannot conclude that he is therefore guilty. A lie is a statement that is not only false but deliberately false. The fact that a person tells a lie may be a factor in my assessment of their evidence; however, the fact that a person tells a lie is not evidence the person is guilty of a crime. -- 20 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 21 The accused elected to give evidence 55 As I have noted, the accused elected to give evidence in this trial. Before turning to the evidence of the complainants, I address the evidence of the accused. I do so for a specific reason of legal principle and that is that I may only convict the accused if I reject his denials of the offending as not reasonably possibly true and am satisfied beyond reasonable doubt on the prosecution evidence. It is therefore logical to consider whether the accused's evidence, taken as a whole and including his denials, could be reasonably possibly true or, put another way, might be true. In that sense, if I regard the accused's denials as reasonably possibly true, the verdicts would be not guilty without the need to examine the complainants' evidence in any significant detail. In assessing the accused's evidence at this stage, I have, of course, had regard to the totality of the evidence led at trial, including the evidence of the complainants which I set out below. I also remind myself that it is not a case of comparing the accused's evidence to the evidence of the complainants which I outline later and preferring one version over another. For the reasons I set out I consider that the accused's evidence on the essential matters relating to the complaints made by the complainants is not credible nor reliable. 56 Before turning to the accused's evidence at trial, it is appropriate that I discuss the accused's interview with police in June 2013, which I have referred to in [17] above because that interview gives context to the accused's evidence at the trial and because the accused adopted what he said in the police interview as being truly correct at the time of trial. 57 The video record of interview was played as part of the prosecution case and has been edited by consent of the parties. I set out below relevant extracts of that interview. I have omitted the formal caution administered at the start of the interview: [Page 4] DET MCMINN: … I want to talk to you about today is an allegation of child sexual abuse. ACCUSED: Uh-huh. DET MCMINN: In particular the sexual penetration of a child that is a lineal relative, that occurred between April last year and December 2012. -- 21 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 22 [Page 5] ACCUSED: - - - when my ex, my missus was with me she was saying my daughter told her that I had stuck the penis in ther [indistinct] … ACCUSED: And I told her it's not true, I did not do them things. And she's saying the daughter has told the mum that I did do it. … [Page 6] ACCUSED: She turned it around and said it was me. It's all lies. … ACCUSED: So basically, TMM told me the granddad did it. [Page 8] ACCUSED: Well, basically, my daughter was saying that I got a sore throat, and - - - … ACCUSED: - - - sore mouth and that and I said what have you been doing? I said well you've got to take her to the doctor and tell [indistinct] you're sick. … ACCUSED: And then she's saying no. I said what do you mean no? I [sic] [She] said Grandad put his penis in my mouth. I said what? What are you talking about? I thought she was only mucking around. She's only a four year-old child - - - you know what I mean? I thought, nah, that can't be right. And she told me twice, and then I believed her. … And then she turned it around and said it's me. DET MCMINN: Who is, um, granddad? ACCUSED: That's [AM's] dad. DET MCMINN: [AM's] dad. What's his name? ACCUSED: [JB]. I'm not sure if he's got a middle name, but I think he has. … -- 22 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 23 [Page 9] ACCUSED: She just said that. what I just told you. … [Page 10] ACCUSED: [indistinct] I didn't get in contact, my missus rang her up. … ACCUSED: … she rang her up and told the situation … - basically, I kept it to myself about a month. … ACCUSED: And so I told her about it, and she goes, well, I'm going to ring your ex-wife up and tell her. … ACCUSED: And then once she approached her, rang up and talked to her. She told her the situation, and then basically she was saying a different story, saying that [TMM] said that … her Dad did it. … [Page 11] ACCUSED: And left it at that and she said she was going to do something about it and I said well go ahead because I've got nothing to hide. … ACCUSED: I was just upset and I did go there and approach him [indistinct] that month, don't worry. … ACCUSED: I was, like, trying to ring him up and he wouldn't answer his phone and his missus would answer the phone and I told her the situation. He was avoiding me, basically. … [Page 12] ACCUSED: And then, from that day, I wanted to do something about it. I wanted to go to the cop station and do a statement, and get him charged. And then they were telling me you ain't got enough proof. … -- 23 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 24 ACCUSED: And DNA and all this crap. I thought, what? DET MCMINN: Who was saying that? ACCUSED: [indistinct] Kwinana Station. ACCUSED: Yes. And I said, what can I do to get him arrested? Can I get him in? Can I, can I, what can I do? … [Page 14] ACCUSED: [LS] … rang her up and then she was saying, well my daughter just told me now that reckons that you did it. And I thought, hang on. … THE ACCUSED: My daughter just told me about a month ago. … [Page 15] DET SGT CAPORN: No worries. And just to clarify, when you told her mum, by mum, who are you talking about? … ACCUSED: [AM]. Accused's examination-in-chief 58 The accused gave evidence on a number of matters that were not in dispute and which I have outlined in [24]. These included his marriage to AM, his separation and that his children began visiting him every Sunday at the Palmyra house seemingly in late 2010 or early 2011. He said that the arrangement continued for approximately eight months before ending due to what he described as AM 'being difficult' and allegations about TMM.10 59 The accused said that on Sundays he and his children would have lunch at the Palmyra house with his mother and father and that his brother FM would also come for lunch and then leave.11 He confirmed that he never worked on Sundays and that the children spent most of the day in the house although occasionally he would take them to the nearby park for about half an hour. Later in my reasons, I set out three further special directions relevant to this case, a Longman direction, 10 ts 300. 11 ts 318. -- 24 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 25 directions as to family violence and delay in complaint. For ease of reference I have decided to structurally place those directions later in my reasons but I make clear that I have taken into account all of the legal directions and considered all of the evidence in this case and I have taken into account those directions throughout these reasons. 60 The accused identified a photograph of the hallway at the Palmyra house,12 and described his bedroom as being the first door on the right and that his room contained his bed, a side cabinet, a unit with drawers and a small television. The room next to his was a playroom with a single bed where AJM would sleep during his afternoon nap. The room at the end of the hallway was used for spare storage. 61 When shown Exhibit 2.8, a photograph of his bedroom window which was taken in December 2023, the accused said that during the period his children were visiting in around 2011 and 2012 there were no roller shutters, only flyscreens. He believed the roller shutters were installed some years later when he moved back to the Palmyra house after selling his O'Connor house. He said that the windowsill was approximately waist height from inside and the external ground level was slightly lower than the internal floor. 62 The accused gave evidence that he purchased a house in O'Connor in October 2012. That evidence was confirmed by a Landgate search which showed a change in ownership on 18 October 2012 and that he moved in immediately. During his time at O'Connor, the children visited for sleepovers approximately two or three times before all contact ceased. He said that he was in a relationship with LS during 2012 and that she would sometimes stay overnight at the Palmyra house and was present with the children on some Sundays. 63 The accused said that he saw LLE at the Palmyra house saying that 'she was there often' when he finished work.13 64 With respect to the police interview conducted in June 2013, the accused confirmed that he had watched that video when it was played in court, as part of Sergeant Riddle's evidence, and he said 'all of it's true'. His counsel put to him each of the allegations that were made against him, the subject of counts on the indictment and for each allegation he said 'not true, it did not happen'.14 12 Exhibit 2.5. 13 ts 306. 14 See generally ts 315. -- 25 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 26 Cross-examination of the accused 65 The accused confirmed that he separated from AM during 2010, but he did not know the month, and that he lived in the Palmyra house for approximately two years before moving to O'Connor in late 2012. During that period, only he and his parents lived in the Palmyra house.15 He accepted that the children came every Sunday without cancellation, that AM voluntarily dropped them off each Sunday morning and that he dropped them back each Sunday evening.16 He also accepted that when the children were visiting he stayed home with them, never left them alone, did not work Sundays and only occasionally took them to the local park for 'an hour, half an hour'. Father's illness 66 The accused confirmed his father had cancer, became seriously ill and was always at home on Sundays. His father died in hospital on 17 March 2013. Relationship with LS 67 The accused confirmed he began a relationship with LS in early 2012, that it lasted approximately two years, that she lived in Fremantle and never lived with him in the Palmyra house, visiting him there and staying overnight only 'a couple of times'.17 He accepted that LS did not come to the Palmyra house every Sunday, only 'sometimes'.18 Children's routine during Sunday visits 68 The accused confirmed that on Sundays AJM would take an afternoon nap after lunch, sleeping approximately two hours in the playroom next to his bedroom.19 He confirmed that while AJM slept, TMM would normally have fruit, usually a mango if available, otherwise watermelon, apple or something similar and that this was the normal Sunday routine. He said AJM always woke up and walked out of the playroom by himself because the door was open and he never once needed to go and get him.20 15 ts 316. 16 ts 317. 17 ts 321. 18 ts 321. 19 ts 322. 20 ts 326. -- 26 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 27 The accused being alone in his bedroom with the children 69 The accused accepted that there were times when he was alone in a bedroom with TMM and/or AJM but denied that the door was ever closed saying it was always open, because TMM was scared of closed doors, even with her father present. He accepted he was alone with TMM in his bedroom 'a couple of times' describing it as going in, doing what he had to do and walking back out with her.21 Camera 70 The accused denied that he, his brother or his father had ever owned a camera or that he had access to one at the Palmyra house, saying of his parents they 'don't know how to use it'.22 Television and viewing pornography 71 The accused gave contradictory evidence about having a television in his bedroom. In cross-examination, he said he did not have one during the period his children were visiting saying 'The first time, I didn't. The second time, I did'23 but in re-examination he said he did have a television during his children's visits in 2012 and it was located on top of a cabinet behind the bedroom door.24 72 The accused emphatically denied watching pornography on any television at the Palmyra house. When asked whether the satellite dish could receive pornographic content he said 'I don't know. I never used it. Only dad used that to watch Portuguese channels'.25 He admitted to watching pornography with LS on her phone on a couple of occasions during the same general period. TMM's alleged disclosure about her grandfather JB 73 The accused was cross-examined at some length about his account in the police interview that TMM told him her maternal grandfather JB had put his penis in her mouth. When recounting what TMM had told him, he described TMM as acting strangely and 'worried or something' and he twice asked her 'what's going on and that she [TMM] spun out' and said 'Oh, Grandad put his penis in my mouth'.26 21 ts 327, ts 328. 22 ts 329. 23 ts 331. 24 ts 355. 25 ts 355. 26 ts 336 -- 27 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 28 74 When asked whether he had believed TMM at the time, he said 'the way she was acting, carrying on, I thought it must've happened'.27 The accused did not ask TMM for any detail about what she had told him including when it had happened, where or how many times it had happened, answering those questions by saying that TMM simply told him 'He put his penis in my mouth' and that was it. Further, he assumed that this happened at JB's house.28 75 The accused accepted he was concerned about TMM being further abused and said he was trying to speak to AM about it. He gave as a reason for not contacting AM immediately that there was a restraining order between them. I do not speculate about this because other than the accused's evidence, there was no evidence about a restraining order between AM and the accused at the time that Sunday visits were occurring. When pressed on how a restraining order would have stopped him protecting his daughter from sexual abuse, his evidence was confused and at times contradictory. At various points he said he was not worried about getting in trouble (for a breach of the order) and was trying to get in touch with AM, and had in fact spoken to AM about the matter when dropping the children off, which contradicted other evidence he had given that LS was the first person he told.29 76 The accused's account of the sequence of events was also contradictory in other respects. He said the phone call LS made to AM was made from the Palmyra house phone, while also accepting he told LS on the day of his children's final O'Connor visit (when AJM had a sore penis). He accepted that LS's call to AM occurred the same day he told LS, and that for the month before that he had told no-one. Further, after TMM's disclosure he had approximately one or two more Sunday visitations with both children before contact ceased.30 AM's alleged threats to the accused 77 The accused said AM had continuously threatened him throughout the period of Sunday visits, saying she would 'stuff you [him] up', would 'get the kids onto you [him]', and would ensure he never saw his children again, 'I'll do something to you so you never see the kids again'.31 27 ts 339. 28 ts 339. 29 See ts 339 - ts 342. 30 ts 338. 31 ts 343 - ts 344. -- 28 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 29 78 In cross-examination, the accused accepted that after separation AM had allowed him back to the marital home to see the children; that their parenting arrangements were agreed in a single mediation session without dispute; that AM dropped the children to him every Sunday for approximately two years without once trying to cancel, including after he moved to O'Connor; and that she never sought to limit or challenge his contact through any court process. He agreed that AM only stopped contact after the sexual abuse allegations arose, saying 'That's right. After these allegations, yeah, she stopped bringing them'.32 LLE at the Palmyra house 79 The accused accepted that while living at the Palmyra house during the relevant period he regularly returned from work to find LLE there, and that she was also present on days when he was not working. The flyscreen on the accused's bedroom window 80 In cross-examination the accused was shown Exhibit 2.8, a photograph of his bedroom window taken by police in December 2023. He rejected the proposition that there was no flyscreen visible in the photograph, insisting there was one.33 He denied ever removing the flyscreen but recalled an occasion when there was a hole in it and someone came to replace it.34 Wearing of a beanie 81 The accused was cross-examined about whether he wore beanies at home. He initially said he would do so if it was cold, then said he would not wear a beanie in the house, only when going out. He denied his answer from moments earlier accepting he would wear a beanie at home if it was cold.35 When it was put to him that he had changed his evidence because LLE had said he was wearing a beanie when he licked her vagina, he denied it and said 'When I get home, I take my beanie off and put it on top of my bed', insisting he had never once worn a beanie inside the Palmyra house and that this was clear in his memory.36 32 ts 346. 33 ts 323. 34 ts 324. 35 ts 353. 36 ts 354. -- 29 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 30 Re-examination of the accused 82 In re-examination, the accused confirmed he told LS about TMM's disclosure 'probably a week or a month' after it occurred and that he told no-one else.37 Assessment of the accused's credibility 83 Having considered the accused's evidence-in-chief, his cross-examination and his 2013 police interview, I find that he was not a credible or reliable witness. He gave answers in cross-examination that were untrue, not through honest mistake or poor memory, but as deliberate misstatements. Parts of his account were inherently unlikely, and his evidence changed in material ways during cross-examination in a way not explained by the passage of time. 84 The accused's account that TMM told him, when she was 4, that JB had put his penis in her mouth is a significant reason I do not accept his evidence. His response to that alleged disclosure, as he described it, lacked plausibility. 85 His account of whom he first told about TMM's allegation shifted. In his police interview, in early cross-examination and again in re-examination, he said he told LS first, approximately a month after the disclosure, and that LS then told AM. In cross-examination he said he had told AM directly when dropping off the children, before speaking to LS. He later reverted to saying he told LS first. These changes were not the result of confusion, but occurred when he was confronted with the inconsistencies. 86 The accused's claimed belief that his daughter had been sexually abused by JB (and was at risk of further abuse) was contradicted by his own actions. He accepted in cross-examination that after TMM's alleged disclosure he took no action for about a month. When he was pressed in cross-examination about his lack of response or action, he offered only that he was 'trying to ring' AM. I do not accept that TMM made any such disclosure to the accused, nor that his account of receiving and responding to it is truthful. I am satisfied it was a deliberate fabrication, not the result of mistake or faulty memory, and I reject it as not reasonably possibly true. My finding in this respect is based on the accused's own evidence and conduct, independently of TMM's evidence. I take the accused's deliberate 37 ts 356. -- 30 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 31 untruthfulness on this issue into account in assessing his overall credibility. Consistently with my directions, however, that finding does not of itself constitute evidence of guilt. AM's alleged threats 87 The accused claimed AM repeatedly threatened him saying that she would 'stuff him up', 'get the kids onto him' and 'do something so he would never see the kids again'. He suggested she orchestrated or induced TMM's allegations against him. I do not accept this evidence. The accused accepted in cross-examination that parenting arrangements were agreed at a single mediation without dispute; that AM brought the children to him every Sunday for approximately two years without attempting to cancel, continuing to do so after he moved to O'Connor; and that she never sought to limit his contact through any court process. He agreed that AM stopped bringing the children only when the sexual abuse allegations arose, saying 'That's right. After these allegations, yeah, she stopped bringing them'. 88 These objective facts are wholly inconsistent with that portrayal. The accused described AM as threatening him 'always' and 'throughout' the visitation period. That characterisation is a deliberate exaggeration. When challenged in cross-examination, he simply asserted 'Yes she did' without detail. I reject the accused's claim that AM threatened him or induced TMM to make false allegations. The accused's wearing of a beanie 89 LLE gave evidence that the accused was wearing a beanie on the occasion charged in count 6. In cross-examination the accused initially accepted that he sometimes wore a beanie at home when cold. He then changed his evidence, asserting that he always removed his beanie on arriving home and placed it on his bed, that he never wore one inside the Palmyra house, and that he had a clear and firm memory of this. 90 I find he changed his evidence when he realised his first answer was consistent with LLE's account. Flyscreen in the accused's bedroom window 91 In cross-examination the accused maintained there was a flyscreen on his bedroom window in the photograph taken by police in December 2023 (Exhibit 2.8). I am satisfied it does not show a flyscreen. The photograph shows a sock where the flyscreen insert would ordinarily sit. I am satisfied the accused knew there was no flyscreen -- 31 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 32 and that his evidence to the contrary was untrue. I draw no inference about the condition of the window during the charged period, but the accused's emphatic and plainly false assertion about what the photograph shows is relevant to his credibility. As I have set out in my legal directions, where I find that JM has made a statement that is not only false but deliberately false, which I consider his evidence about the flyscreen falls into, I remind myself that notwithstanding my conclusion that he has lied on this issue, that is not evidence that he is guilty of any offences with which he has been charged. Other credibility observations 92 The accused gave implausibly categorical answers about matters occurring many years earlier. For example, that his bedroom door was always open, and that AJM always woke from his nap without assistance so that he never once needed to enter the room. In cross-examination the accused was confident when answers appeared to help him but changed or denied those answers once he perceived their implications. While I give the accused's demeanour when giving his evidence limited weight, his demeanour was consistent with my other findings. 93 I find the accused was not a credible or reliable witness. The shortcomings in his evidence cannot be explained by the passage of time, lack of education or the pressures of cross-examination. His response to TMM's alleged disclosure does not turn on fine details of memory, it concerns what any parent would do if they believed their child had been sexually abused. AM's conduct during the visitation period was established by objective facts the accused himself accepted. His evidence about the beanie and the flyscreen was false. These were not mistakes caused by faulty memory. I reject his accounts of the alleged JB disclosure and of threats by AM as not reasonably possibly true, and these findings inform my assessment of his denials of the charged conduct. The accused's denials - application of the legal test 94 Notwithstanding my assessment of the accused's evidence, it is still necessary to consider whether the accused's denials of each charge are reasonably possibly true. My task is not to choose between witnesses. As I have said, a finding that an accused was untruthful on certain matters does not, of itself, establish guilt. The prosecution must still prove each element of each offence beyond reasonable doubt. -- 32 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 33 95 The accused denied all seven charges consistently, from his 2013 police interview through to his trial evidence, in clear and unequivocal terms. I have kept in mind his forensic disadvantage arising from the delays in this matter and in this respect have applied the Longman warning that I refer to later in my reasons and note that the reality is that in response to allegations of this age, an accused may have little to offer beyond a bare denial. I do not treat the absence of a detailed alternative account as adverse to him. 96 I will return to the accused's denials when analysing each count individually, considering them alongside the complainants' evidence, any cross-admissible material, and the credibility findings I have made. The complainant TMM's evidence 97 TMM's evidence-in-chief was given in three parts, the first being a child witness interview in February 2013 (2013 CWI) which relates to count 1, next, a child witness interview on 9 December 2021 (2021 CWI) which relates to counts 2 - 5, and finally the pre-recording of her evidence on 24 April 2025. 2013 child witness interview 98 On 15 February 2013 TMM, then aged 4 years and 10 months, was interviewed by a detective at the Child Assessment Interview Unit in Perth. 99 At the outset of the child witness interview, when asked why she had come to speak to the interviewer, TMM said, 'Because my dad's starting being mean … and … uh because he's started showing bits'.38 When asked what she meant by 'bits' she gestured between her legs and said 'He's showing his willy'.39 100 She confirmed her father by name and said she called only one person 'Dad'.40 She said the events occurred at 'his old house', where her 'granny and poppy' still lived.41 She said that her 'granny and poppy' still lived there at the date of the interview. 101 TMM described waking in her father's room alone with him, with AJM in the next room and granny and poppy asleep in the lounge room.42 The first thing she saw on waking was 'His bits'.43 38 2013 CWI, page 3. 39 2013 CWI, page 3. 40 See 2013 CWI, pages 6 - 7. 41 See 2013 CWI, pages 4, 5 and 6. 42 2013 CWI, page 9. -- 33 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 34 Her father said 'Let's go and put this in his - [AJM's] mouth'; she said 'No'; he said 'Yes'; she again said 'No'. She described him holding his willy with both hands and 'shaking it'44 and that it looked like it was swinging.45 She had also said earlier in the interview that he 'wanted to put it in our mouths'.46 102 When asked what happened next, TMM said 'He just walked off and put it in [AJM's] mouth'.47 When the interviewer asked how that was possible if AJM was in the next room, she replied, 'Because I followed him'.48 TMM's account of the alleged sexual act in count 1 103 TMM described that the accused 'opened [AJM's] mouth … and putted it in'49 (being a reference to the accused's penis) bending it down and inserting it, with his willy 'shaking' while inside.50 She said it was 'dripping little things', that 'it looked like a colour - watercolour' coming from 'the little hole where he wees out of' and that it was dripping on the floor.51 TMM said AJM 'sat down and he tried to get the willy out of his mouth' by pulling at it'. She gestured with her hands pulling away from her mouth and that her father 'was trying to push it back in' with his hands and making a 'Ssh'.52 Some inconsistencies in the account 104 When asked initially who was in her father's room, TMM said 'Me and [AJM]' and then added 'poppy and granny' and that 'they were in the room with us'.53 This was inconsistent with her more detailed account in which AJM was in the next room and granny and poppy were asleep in the lounge room. The interviewer later returned to this; TMM clarified that 'watching' referred to a separate earlier episode of watching her father dress, and that when he exposed himself 'No-one else was watching'.54 43 2013 CWI, page 10. 44 2013 CWI, page 11. 45 2013 CWI, page 12. 46 2013 CWI, page 4. 47 2013 CWI, page 9 48 2013 CWI, page 9. 49 2013 CWI, pages 14 - 15. 50 2013 CWI, page 16. 51 2013 CWI, page 17. 52 2013 CWI, page 18. 53 2013 CWI, page 8. 54 See generally 2013 CWI, page 20. -- 34 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 35 105 Towards the end of the interview, TMM was asked by the interviewer whether her father had 'taken any photographs or recorded anything'55 and TMM responded that he did 'record it' on his camera. The interviewer asked 'How do you know that he recorded it?' and she said '… I can't remember'. Later in the interview she said 'Cos I sawed the camera come out'. She described the camera as being purple and black56 and said her father told her 'I've got nanna's camera at my new house'.57 2021 child witness interview 106 On 9 December 2021 TMM was further interviewed by a specialist police officer from the Child Abuse Squad. I will sometimes refer to this interview as 'CWI 2021'. At the outset, TMM said she had come to speak about 'when I was younger - my dad sexually assaulting me', adding that it happened 'more than once'.58 107 TMM described a general pattern of offending during Sunday visits to the Palmyra house when she and AJM were dropped off for the day. She estimated that sexual contact began when she was about 4 years old, continued for approximately a year, and stopped at age 5 when she told her mother.59 Count 2 108 TMM said the 'first time' something sexual happened to her was the one that she 'can remember the most'.60 She described the Sunday routine, after lunch AJM would nap, she would have a mango outside, then come back inside and have a lollipop.61 On this day, having had her mango as usual, she went into the accused's bedroom, which she described as having a white cupboard with an open shelf on top of which he kept a '20-pack of Chupa Chups',62 and a low bed that had a white and grey doona on it.63 55 2013 CWI, page 24. 56 2013 CWI, page 25. 57 2013 CWI, page 26. 58 2021 CWI, page 7. 59 2021 CWI, pages 26 - 27. 60 2021 CWI, page 7. 61 2021 CWI, page 7. 62 2021 CWI, page 15. 63 2021 CWI, page 16. -- 35 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 36 109 TMM told the interviewer:64 And he had, like, the lollipops on top, and he told me that he didn't have any lollipops, and obviously I pointed out that there were lollipops right there, but he, um, convinced me that they were, like, um - the words he used were they were bad lollipops - - - um, so I couldn't have them. And then he, um - he pulled out his, um, dick … and said to me, um, that it was exactly like a lollipop and told me that it, like, tasted like a lollipop and was exactly like a lollipop, and then obviously, um, held my head and forced me to, um, suck it. And then he said to me - because I said that it - I remember saying that it didn't taste like a lollipop - - - and he told me that it was like a lollipop, and basically that's what happened … 110 TMM confirmed that when she referred to his 'thing' or 'dick' she meant 'penis'.65 111 TMM described two occasions within this incident when the accused's penis was in her mouth. On the first, she described that she was standing on the bed. Specifically, 'Um, I was standing on the bed for, like the - waiting for the lollipop', and he was standing on the floor with 'his dick … right to my face',66 his jocks and jeans were near his ankles67 and he placed one hand on the back of her head 'but I didn't get pressure added or anything the first time'.68 She said:69 So he - I was on his bed, and then when I stood on his bed, um, I was about, like, where my head was if he was standing on the floor. That would be exactly where his thing - like, his dick would be. 112 TMM continued 'It would go right to my face'.70 113 She continued that he 'pushed my head kind of forward, so I just - he was my dad, so I was like, oh - - - it's fine. So then I - - - it just kept going'.71 114 She then said:72 I, like, took my mouth off, within seconds … because I realised it didn't taste like a lollipop. I said … that it doesn't taste like a lollipop73 … And he just told me it was a lollipop and he was, like - a special one. A better one. 64 2021 CWI, pages 7 - 8. 65 2021 CWI, page 21. 66 2021 CWI, pages 17 - 18. 67 2021 CWI, page 18. 68 2021 CWI, page 18. 69 2021 CWI, pages 17. 70 2021 CWI, page 18. 71 2021 CWI, page 20. 72 2021 CWI, page 20. 73 2021 CWI, page 19. -- 36 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 37 115 TMM then said 'he finished'. When asked what that meant, she said he 'comed' and that after he 'pulled his jeans back up … then … opened the door, and we went out of the room. He didn't say anything'.74 When asked where her grandparents were, she said 'My nan was in the kitchen … granddad was on the couch'.75 Count 3 116 TMM said in the 2021 CWI that every Sunday it was 'always at the same time that he did it after my mango …'.76 She added that after the first time:77 … the lollipops had stopped, because this was, like, my new lollipop. … this … must have been a few times into it, because I was used to it. 117 She continued:78 … we had my mango, as usual, … and then came back inside. We went to his bedroom, and the same thing happened. He would pull down his pants … but this time during it … his girlfriend walked in, and she looked and saw it, and then she just - stepped back out and shut the door. So she didn't say anything about it. … and then it just continued as usual, finished. He walked out the room, and then I walked out the room. 118 When asked what LS could see from her position, TMM said:79 [S]he came in - like, she opened the door, and she was more to the side of the door … She would have seen my dad if she'd just looked straight. … and then she would have probably seen me. 119 After the accused finished, TMM said that she and the accused went into AJM's room to wake him up. She stayed with AJM and later saw LS and the accused in the garage, sitting near a freezer and smoking.80 120 She recalled that on this occasion she was wearing pink leggings, but she could not remember what shirt she was wearing.81 74 2021 CWI, page 21. 75 2021 CWI, page 25. 76 2021 CWI, page 29. 77 2021 CWI, page 29. 78 2021 CWI, page 30. 79 2021 CWI, page 38. 80 2021 CWI, page 40. 81 2021 CWI, page 40. -- 37 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 38 Count 4 - 'You done good' 121 The identifying feature of count 4 is that after the sexual act, TMM lay on the accused's bed because she was tired, and he said words to her to the effect of 'You done good' or 'Good job'. 122 TMM described the incident, 'I had my mango, and then we came inside … and then, um, went to his bedroom …'.82 She was asked whether there were lollipops at this time, she said 'No'. Saying '… there hadn't been lollipops since the first time …'. She then said:83 … he pulled down his pants, … as usual, and then I done what I usually did. … penis, … and then I put my mouth … on it, and after that he would - he finished, but then I laid down on the bed, and he said … I'm pretty sure he said 'You done good'. 123 With respect to his hands, TMM said that after the first time 'he got comfortable with it … his hands would just go in different positions. … on my head for, like, maybe a couple seconds … and then he'd get fidgety, so there'd be, like, a bit more movement from him'.84 124 TMM's evidence was that after the sexual act finished on this occasion: … I was really, really tired - - - so I just laid down on the bed … and he said, 'You done good.' … and then he - he actually came and sat down on the bed - at the edge of the bed - - - for a couple of minutes with me, and then he left the room to go wake up [AJM] ... 125 TMM was uncertain whether this incident occurred before or after LS walked in.85 Count 5 - persistent sexual conduct 126 When TMM was asked during the interview whether sexual abuse happened one time or more than one time she answered, 'More than once'. She went on to say 'It stopped when I was five - - - so it started when I was about four, cos it went for … about a year'.86 127 She explained, 'I know that it stopped at five because that's when I told mum about it - - - it started around four, because … it went on for about a year'.87 82 2021 CWI, pages 42 - 43. 83 2021 CWI, page 43. 84 2021 CWI, page 44. 85 2021 CWI, page 46. 86 2021 CWI, page 26. 87 2021 CWI, page 27. -- 38 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 39 128 With respect to frequency of incidents she said:88 … there were a few weeks - like, a few Sundays that we'd go there and nothing would happen because there would be, like, family gatherings or something. - - - There was … I think about, like, two to four Sundays. Not many. 129 TMM's evidence was that when she disclosed to her mother, that 'dad [had] done something' visitation stopped and that she had not seen him since then.89 Watching of pornography in the Palmyra house 130 During the 2021 interview, TMM discussed the accused watching pornography during her Sunday visits to the Palmyra house:90 … [her father and grandfather] would sit on their couch in their living room - - - and they would put porn on the TV and force myself and my brother to watch porn every time we went there, so we thought that it was normal to be watching that at that age. The interview continued further:91 Q. - - - so, yeah, if you can remember a time when - can you think of one time in particular? ... A. … [dad] walked in, and I remember he walked … in front of the TV across the room, and then he - they were joking around. I can't remember what they were saying, but they were saying, like, 'That's hot,' and stuff like that. 131 The pornography was adult material; TMM and AJM were never spoken to about what was on the screen - they simply watched with the adults.92 LS was present on some occasions, with TMM sitting on LS's lap and AJM on the accused's lap. TMM said this began around the same time the accused 'started forcing me to do stuff' and occurred most times they went to the house, with only two to four Sundays except due to family gatherings.93 88 2021 CWI, page 50. 89 2021 CWI, page 57. 90 2021 CWI, page 8. 91 2021 CWI, page 48. 92 2021 CWI, page 49. 93 2021 CWI, page 50. -- 39 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 40 TMM's pre-recorded evidence taken on 24 April 2025 2013 child witness interview 132 At the commencement of her evidence of 24 April 2025 TMM confirmed that she had watched the 2013 CWI with the State prosecutor the previous week, but she had no independent memory of the events that she described. When asked whether she remembered the incident involving AJM, she answered 'No'.94 She confirmed that everything she had said in the 2021 CWI 'was the truth'.95 Age at time of offending 133 In the 2021 CWI TMM said that the offending against her occurred between the ages of her being 4 and 5. In examination-in-chief she revised that by saying:96 No. I believe that it would have been between the ages of three and four. … Now that I've seen the videos, I know that I didn't see him any longer after the ages of four, so it wouldn't have been able to continue till five. 134 TMM confirmed the sexual act was always the same, the routine being that her dad 'would get her to suck his penis'. Further, when she said 'finish' in the 2021 CWI she meant ejaculation which occurred on surrounding surfaces (the floor or the bed) and never inside her mouth.97 135 The State prosecutor asked TMM to describe her father's bed which she described as a low bed. She said that the mattress did not sit directly on the floor, and it was a small bed frame roughly around 10 cm off the floor.98 TMM also identified 11 photographs of her grandparents' house which became Exhibit 2. When viewing photograph 2.9 being a photograph of the accused's bedroom she said that 'I think that might be the same bed, but the bedside table was not there when I was at the house'.99 94 Pre-recording 24 April 2025, ts 59. 95 Pre-recording 24 April 2025, ts 59. 96 Pre-recording 24 April 2025, ts 60. 97 Pre-recording 24 April 2025, ts 61. 98 Pre-recording 24 April 2025, ts 60. 99 Pre-recording 24 April 2025, ts 67. -- 40 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 41 Cross-examination of TMM 136 Counsel for the accused put to TMM that the reason she had no independent memory of the events described in the 2013 CWI was 'because those things didn't happen'. TMM responded 'I don't believe that's true'.100 137 A series of questions were asked about the height of the accused's bed.101 TMM said the mattress was 'on the thinner side' and, when pressed, revised her initial estimate of 10 cm to 'roughly' 15 - 20 cm. 138 After some objections the following exchange took place:102 LEVY DCJ: Well, she's saying 15 to 20 centimetres. [ACCUSED'S COUNSEL]: Yes. THE WITNESS: I can show you with my hands if you'd like. [ACCUSED'S COUNSEL]: All right. Show us with your hands if that assists, [TMM]?---I would say about here. Yes. All right. Thank you. LEVY DCJ: That looks pretty close to 20 centimetres. [ACCUSED'S COUNSEL]: … is it your evidence that the bed was that 15 to 20 centimetre high or is it your evidence today that the bed was - was that height?---The bed was 15 to 20 centimetres high. This picture looks larger than the bed. I do believe the frame that this mattress is on, however, could - could have been the frame that was in the room when I was there. All right. So your evidence is that the bed that you remember was shorter than this bed? Okay. The - - -?---It was shorter than this bed. Yes. Right. LEVY DCJ: When you say 'shorter', you mean you're talking about the height? [ACCUSED'S COUNSEL]: Yes. The height. 100 Pre-recording 24 April 2025, ts 69. 101 Pre-recording 24 April 2025, ts 71. 102 Pre-recording 24 April 2025, ts 71 - ts 72. -- 41 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 42 Pornography 139 Counsel for the accused asked TMM a number of questions about the watching of pornography. TMM confirmed the pornography was accessed via a website on the television.103 When asked how frequently pornography was viewed she answered, 'Very frequently over the course of the year that we had the visitation. So I would say each - each weekend I was there, that was on the TV'.104 She and her brother usually watched it after lunch.105 When it was put to her that she had never seen pornography on that television, she answered, 'That that's not true'.106 140 Counsel for the accused put to TMM that she may have been mistaken in her allegations, suggesting that any belief that sexual acts had occurred to her may have arisen from exposure to pornographic material she had seen as a child. TMM rejected those suggestions. She denied ever telling the accused that JB had engaged in sexual conduct towards her and denied that any such conduct had occurred. She also rejected suggestions that she was confused by what she had seen in pornography or that she was lying. She maintained that her prior account that the accused had put his penis in her mouth was true and that it had occurred.107 Contact with LLE 141 TMM was shown a Facebook photograph (Exhibit 3) dated 25 May 2019 which showed her, her mother and brother, MP and some of her family members including LLE. She said the photograph was taken at LLE's mother's house. TMM identified this as the occasion on which she overheard MP speaking to her mother about a sexual assault of LLE at her grandparents' house.108 142 In cross-examination, TMM accepted that she had spoken to both MP and LLE before LLE went to Cockburn Police Station to make her statement, and that in December a couple of years before (which she later accepted was 2019) she had spoken with LLE.109 When asked whether she had effectively said to LLE 'Look, my father made me suck his penis', she answered 'Yes' - while adding that she had not 103 Pre-recording 24 April 2025, ts 75. 104 Pre-recording 24 April 2025, ts 75. 105 Pre-recording 24 April 2025, ts 76. 106 Pre-recording 24 April 2025, ts 76. 107 Pre-recording 24 April 2025, ts 90 - ts 91. 108 Pre-recording 24 April 2025, ts 80. 109 Pre-recording 24 April 2025, ts 87 - ts 88. -- 42 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 43 given many details. She confirmed her mother had not spoken to her about the sexual acts after visitation ceased in late 2012 or early 2013. Allegations concerning maternal grandfather 143 TMM was asked in cross-examination whether she had ever told the accused that her grandfather, JB had put his penis in her mouth, and she said 'No'. She denied ever telling the accused anything of that kind and denied that her grandfather had ever done anything of a sexual nature towards her, saying 'That never happened'.110 After this exchange she became emotional and needed a break in proceedings. Re-examination of TMM 144 In her re-examination the State prosecutor asked TMM to describe her relationship with her maternal grandfather, JB. TMM's response was:111 … I had a very close relationship with my grandfather. Sorry. It's a bit of a sensitive topic. I've just lost him. … He was our support network. He was ... there for me for my whole childhood. He gave me a father figure. He gave us a place to stay. He kept us safe. He would never do anything to hurt us. He always made sure we were fed. My relationship with him was amazing. … The complainant LLE's evidence 145 I now turn to the evidence of LLE who made a complaint to police in early December 2023 concerning sexual misconduct of the accused. 2023 child witness interview 146 On 14 December 2023 LLE, who was then aged 14,112 (2023 CWI) was interviewed by a Child Abuse Squad officer in Perth. At the commencement of the interview LLE was asked to tell the officer what she had come to talk to her about. Her answer was 'I've come to talk about, um, my story, and how it relates to my cousin and - yeah, come to put - very bad man in jail'.113 110 Pre-recording 24 April 2025, ts 89 - ts 90. 111 Pre-recording 24 April 2025, ts 92. 112 LLE was born in April 2009. 113 2023 CWI, page 3. -- 43 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 44 Count 6 147 LLE said that when she was 'around five - four or five' she had been 'sexually abused twice … in my great-grandmother's house'.114 She identified the accused as the person who committed the acts giving his name describing him as 'my nan's brother'.115 She said the events occurred at the Palmyra house where the accused lived at the time, and that the first person she told was her grandmother, MP, when she was around 7 turning 8. 148 LLE was asked to describe the first incident. She said she thought she was closer to 4 years old at the time and remembered it 'so vividly' because of what she saw when she lifted her head during the incident. She described the incident as follows:116 The first time again he led me into his room, and, um, he took my - he took my dress off, he put it on the floor, he laid me down on the bed, and he took my undies off, and then he played with my lily with his tongue. That was the very first time, and I think I was about four - closer to four then, and I think the second time I was closer to five. I don't remember the dates fully, so don't quote me on that. 149 LLE said that when she was lying flat on her back on the bed she lifted her head and saw what was happening. She described it in this way:117 I saw his head in - in between my legs, and then I saw him grab the tissue. And that lasted about I think maybe seven minutes. 150 She described the accused as kneeling or squatting.118 She said that she was wearing 'a black daisy dress'119 and he was dressed in black and 'wearing a beanie'.120 Count 7 151 LLE said the second and last incident occurred when she was closer to 5 years old. It was the incident the interviewer addressed first, asking LLE to begin with the most recent event. LLE described being 114 2023 CWI, page 4. 115 2023 CWI, page 5. 116 2023 CWI, pages 7 - 8. 117 2023 CWI, page 8. 118 2023 CWI, page 8. 119 2023 CWI, page 9. 120 2023 CWI, page 9. -- 44 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 45 led to the accused's bedroom and then through the bedroom window to the side of the house. She said:121 … he led me to his room … and he opened up the - his window that led to the side of the house, and he made me suck his dick when I was only little, and he said there was no more lollypops and that his - he had one lollypop left, and he made me do that. 152 The interviewer then asked LLE to explain in as much detail as she could about the part when he led her to his room. She replied:122 … he led me to his room. We - he opened the door, and then … all I remember is that … he climbed through the, um, window, and then I went through the window, and then, … his back was facing, like, the fence - the fence to the other side of the house. So, like, there's the back fence, and then he's there, and then I'm here, and then here's his window, yeah, and then the rest of the wall. 153 When asked to describe the location when she went through the window LLE said:123 That was to the side of the house, like, where, um, people's fences are. Like - like, the fence and then, like, the gate. The back gate, yeah. And then the other side was, like, kind of just open out to the rest of the back yard. 154 LLE described the act in the following terms:124 … he made me suck his dick when I was only little … 155 When asked what she used to suck his dick she replied 'My mouth'.125 When asked to describe the accused's body position she said 'He was just, like - just, like, stood normally'.126 When asked to describe her own body position she said 'I was kneeled'.127 She said that she remained fully clothed throughout the incident and when asked what the accused's clothing was she answered 'I can't really remember. I know he was wearing long pants and a singlet, I think. A black singlet. It was always black. Everything that he wore is black'.128 121 2023 CWI, page 4. 122 2023 CWI, page 4. 123 2023 CWI, page 4. 124 2023 CWI, page 4. 125 2023 CWI, page 5. 126 2023 CWI, page 5. 127 2023 CWI, page 5. 128 2023 CWI, page 5. -- 45 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 46 156 After the incident LLE said 'I was still fully clothed, so I just - I just, like, kind of shrugged it off and walked back over the other side of the house'129 where her great-grandmother, (Avoa) was gardening. Examination-in-chief of LLE 157 LLE gave evidence from a remote room in the District Court at Perth. I remind myself of the standard routine nature of that procedure and draw no adverse inference against the accused. At the time of giving evidence LLE was 16 years old. 158 In examination-in-chief LLE confirmed she had watched her CWI with the State prosecutor the week before giving evidence and said she told the truth in that video. When asked about her relationship with the accused she said:130 I didn't really have a relationship with him. It was more - I saw him at family gatherings and was told to stay away most of the time. 159 LLE described being very close to Avoa in childhood, going to the Palmyra house on weekdays when no-one could look after her, where she would watch old TV shows, potter in the garden and help with cooking.131 160 In giving evidence about count 6, LLE said the only people at the house when that happened were Avoa and the accused. Before it happened, she had been walking around the garage trying to find a watering can for Avoa. 161 When LLE was asked about the duration of the sexual act that she described in the CWI, she said, 'It wouldn't have been more than five minutes'132 adding that in the CWI she had been 'very much put on the spot …'.133 She said she remembered it 'so vividly' because it 'was very traumatising and it scarred me'.134 162 When shown a photograph of the hallway of the Palmyra house (Exhibit 2.7), LLE identified the bedroom where count 6 occurred as the middle bedroom (the second of three doors). As I will turn to, she became less certain of this identification under questioning in 129 2023 CWI, page 4. 130 ts 183. 131 ts 184. 132 ts 184. 133 ts 185. 134 ts 185. -- 46 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 47 cross-examination saying later, 'I still think it's the second door', whilst acknowledging she was unsure.135 163 LLE confirmed that after going through the accused's bedroom window which I have described at [151] - ]153] above, she sucked the accused's penis at the side of the house while Avoa was in the garden watering plants. Before the incident she had been fetching a metal watering can for Avoa.136 164 When asked about the reference in her CWI to the accused saying he had 'one [lollipop] left,'137 LLE explained, 'He had a - a container of lollipops … and … was … insinuating a sexual act'. She said she had seen a container of lollipops on top of the unit in his room but he had never actually given her one. The incident LLE described in count 7 ended when Avoa called her name.138 165 LLE marked with an 'x' on photograph 5.1139 where the sexual act occurred, saying the accused was facing towards the brick wall (the window) and she was facing the fence. She could not see Avoa from that position and the rest of the backyard was 'covered with bush'.140 She said that the grapevines on wired poles were more abundant at the time of the offending than shown in the photographs.141 Other occasions of similar offending 166 When asked whether the incidents the subject of counts 6 and 7 were the only times something sexual happened with the accused, LLE answered, 'They're the times that I can remember vividly'. She went on to explain:142 … There has definitely been more times, but I cannot remember them as vividly as I do remember these two times, that are worth telling. 167 Asked why those two incidents were more vivid, she said, 'Because they were the first time that these things have happened, and they definitely scarred me more than anything else'.143 135 ts 209. 136 ts 186. 137 ts 186. 138 ts 187. 139 Exhibit 5 comprised 11 photographs of the side and backyard of the house taken by police in December 2023. 140 ts 189. 141 ts 189. 142 ts 193. 143 ts 193. -- 47 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 48 She estimated there were approximately two further occasions at the same location involving the same act, accessed through the window,144 but she could not recall specific details or the timing between incidents, though she noted she used to go to the house weekly. She confirmed that the bedroom incident in count 6 was the only time he licked her vagina.145 LLE's relationship with TMM 168 LLE confirmed that the cousin she referred to at the start of her CWI, when she said she had come to 'put a very bad man in jail' was TMM. She described her relationship with TMM as one of limited contact, they met in person once at LLE's home for a family event and LLE estimated she had spoken to her, whether in person, phone or text message, approximately five times in her life. She confirmed she had never seen TMM at the Palmyra house when she was there.146 Cross-examination of LLE 169 In cross-examination, LLE said she knew she had stopped going to the Palmyra house at about age 6 'because I told my grandmother at seven, and we didn't really hang around them - around that house much anyway as I got older because I started going to full-time school'.147 It was put to LLE that she might be saying that she was aged 4 - 5 at the time of the alleged offending because that is what MP had told her and she answered 'No'.148 170 LLE was asked what she told MP when she was 7. She said, 'I didn't tell her extreme details. But I did tell her that it was two occasions and that something did happen, yes'.149 171 When it was suggested she had only told MP about one occasion, she replied, 'But I didn't. I told her about two times. And I did not tell her details … I cannot remember specific words, but I do remember telling her that there was two times … And it was sexual acts'.150 144 ts 194. 145 ts 195. 146 ts 197 - ts 198. 147 ts 198. 148 ts 199. 149 ts 201. 150 ts 202. -- 48 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 49 Lollipop reference 172 Counsel for the accused asked LLE whether she had been told prior to giving her police interview in December 2023, that TMM's allegations involved the mention of lollipops and sucking a penis. She was asked whether there was any reason why she mentioned lollipops in her evidence. LLE answered:151 Okay. What's that?---The reason is because he would say that he had lollipops to give us, and then he'd - wouldn't give them to us, and then he'd perform - he'd make us perform sexual acts on him. Okay. So when you say 'us', who do you mean?---Me. Okay?---I'm sorry, I meant me. All right. When you said 'us', are you actually referring to yourself and TMM?---No, I mean me. 173 She was then asked had she spoken to TMM about these matters and she said she had not spoken to her in the last four years. LLE's discussions with TMM 174 Counsel put to LLE that prior to her police interview she had been told details of TMM's allegations involving lollipops and sucking a penis. LLE denied this, saying she was 'not aware of any details that had happened to [TMM]'.152 When asked whether she recalled telling the State prosecutor in the week before trial about a conversation she had had with TMM when she was 12 during which TMM told her she was raped many times at the Palmyra house LLE said, 'I do not remember details of that conversation, I'm sorry. My memory has been very hazy over the last week'.153 175 Later in the trial, after LLE's evidence had been completed, the State prosecutor, read the following note to the court:154 This is a note that I took when meeting with [LLE] [the week before the trial]. - - - I spoke to [TMM] once about what happened with [the accused]. It was when I was around 12 years old. She said she was raped, and that it happened many times at Avoa's house - - - I can't recall the exact words [TMM] used. I told her that something happened with me, but neither of us went into the details. 151 ts 204. 152 ts 200. 153 ts 201. 154 ts 287. -- 49 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 50 'Come to put a very bad man in jail' 176 In cross-examination, counsel read back to LLE the passage from the CWI in which she said she had 'come to put a very bad man in jail'. Asked why she had referenced her cousin when speaking to police, LLE said she could not remember, 'I can't remember that far back - - - of why I said a certain thing'.155 2019 family gathering and Facebook photo 177 Counsel showed LLE a photograph (Exhibit 3) from 25 May 2019 showing LLE (then approximately 10) and TMM (then approximately 11) at a family gathering at LLE's home, along with MP, AM and other family members. When asked whether she had any conversation with TMM about the sexual matters at that gathering, LLE said she could not recall, but remembered 'walking past my nan and hearing Nan talking to, like, [AM] but … I don't recall any specifics'. She confirmed that she overheard them talking about sexual matters, but 'didn't know what they were talking about'.156 178 As I have noted, counsel showed the photograph being Exhibit 2.7 which showed the hallway to LLE and asked her which bedroom was the one she climbed through to the side of the house. LLE said that she was not unsure but thought it was still the second door but agreed she was not certain. 179 When details of the allegations were put to LLE to the effect that none of the sexual things happened, LLE replied 'I'm going to say you're lying' and 'I disagree with you, 100%'.157 Re-examination of LLE 180 In re-examination LLE said she first found out something had happened to TMM a week or two after she told MP what happened to her when she was about 7 years old. She recalled:158 I knew something had happened, but I did not know details … I remember Nan like talking about it, and said, 'Well, we're not going back here.' And that's when she asked me if anything had happened to me, because she had heard something about [TMM]. 155 ts 204 - ts 205. Although LLE confirmed the cousin she was referring to was TMM. 156 ts 207. 157 ts 210. 158 ts 210. -- 50 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 51 She confirmed subsequent conversations with TMM were in general terms only, 'I've had conversations with her where she's like, "Yeah, something did happen to me," but I didn't go into detail, because I didn't want to hear it, because it was triggering for me'.159 181 When asked whether the two incidents described in the CWI remained clear in her mind, LLE said 'Yes'. She explained that her hazy memory over the preceding week reflected efforts not to think about things too much, and a belief that she had blocked out part of her conversations, but she confirmed clearly that both the vaginal licking (count 6) and the introduction of the accused's penis into her mouth (count 7) had occurred and remained clear in her memory.160 Further legal directions Family and domestic violence and delay 182 I remind myself as a matter of law, of the following matters. 183 TMM, AJM and LLE were each family members of the accused pursuant to s 4 of the Restraining Orders Act 1997 (WA), and s 37 - s 39 of the Evidence Act 1906 (WA). It was not in dispute that they were related to each other, TMM and AJM are the accused's children and LLE is the accused's grandniece, the granddaughter of the accused's sister. On the State's case TMM and AJM were in the care of the accused each Sunday and in that respect, they had a personal relationship of a domestic nature in which their lives were interrelated and the actions of one affected the actions of the others. 184 Family violence specifically includes sexual assault or sexually abusive behaviour or causing someone to be exposed to sexual assault or sexually abusive behaviour. 185 Family violence as a matter of law can include a single act or several acts that form a pattern of behaviour. 186 As a matter of law, experience shows that people may react differently to acts of family violence including sexual abuse being committed against them and there is no typical, proper or normal response to such acts. 159 ts 211. 160 ts 212. -- 51 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 52 187 It is not uncommon for a person who is subjected to such sexual abuse to not report such abuse to anyone or seek assistance to stop the abuse or to continue to see the perpetrator even after the abuse has commenced. 188 How a person responds to the abuse can be influenced by a variety of factors including, the nature of the abuse; the age of the victim; the relationship of the alleged offender with the alleged victim; the fear of further abuse used by the perpetrator; the desire of an alleged victim not to discuss the matter or embarrassment at discussing the matter; and the victim's fear that disclosure of the abuse could damage family relationships. 189 The normalisation of the abuse may also be a factor in a person's reaction. 190 Social, cultural, or personal factors, or inequities experienced by the person associated with their age can also be a factor. 191 The desire of an alleged victim to get on with their life and get over it can also be a factor in their reaction to such abuse. 192 In this regard as a matter of law I must consider the history of the relationship between the parties including the cumulative effect of any sexual abuse, the psychological effect of such abuse, the general nature and dynamics of the relationships of the parties and be mindful of these matters. 193 Matters including but not limited to each of the complainants' very young age and their family circumstances, the accused's age and the fact that he was TMM and AJM's father must all be taken into account in relation to any consideration of issues associated to TMM and LLE's reaction to the accused's alleged sexual abuse. Delay in complaint 194 Although TMM was interviewed by a specialist police officer in early 2013, she did not make any immediate complaint to anyone about any of the incidents the subject of counts 2, 3, 4 and 5 on the indictment. LLE also did not make any immediate complaint to anyone about any of the incidents the subject of counts 6 and 7 and the uncharged conduct. Delay in complaint is a relevant matter, and it is something for me to consider and weigh as to its significance. There may be good reasons why a complainant of an offence such as -- 52 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 53 these allegations may hesitate in making or may refrain from making a complaint of sexual assault. I must take into account the age difference and the relationship between each of the complainants and the accused. 195 As Bowden DCJ recently observed, as a matter of law there is no typical, proper or normal response to sexual offences being committed against the person. Some people might complain immediately. Others might not complain at all. Others may not complain for some time. A person's reaction to being sexually abused as a matter of commonsense is as varied as a person's personality.161 196 I remind myself that the absence of complaint or the delay in complaining that one has been sexually assaulted does not necessarily indicate that the allegations are false. Longman 197 This is a case involving a substantial delay between the alleged offending and the making of the complaints and the bringing of the charges. In those circumstances, I am required to give myself a Longman direction.162 While I refer to it as a direction, what I refer to in the next paragraphs is in the form of a warning rather than a caution and I treat the direction as a warning. As Bowden DCJ recently observed in Cable163 where a link is established between delay and forensic disadvantage, the fairness of the trial is necessarily impaired. As I will refer to, the warning I take into account is that because of the passage of time and the delay, the complainants' evidence cannot be adequately tested and that it would therefore be dangerous to convict on that evidence alone. 198 The alleged offending in counts 1 - 5 is said to have occurred between January 2012 and January 2013, and the offending in counts 6 and 7 between April 2012 and April 2014. The accused was not charged until late 2023 and early 2024. The delay is therefore in the order of 10 - 12 years. That delay is substantial. 199 I am satisfied that the delay has caused the accused forensic disadvantage of a kind that would not have arisen had the allegations been made promptly, and that there is a real risk of miscarriage of justice if that disadvantage is not taken into account. 161 Cable [345]. 162 Longman v The Queen (1989) 168 CLR 79. 163 Cable [309]. -- 53 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 54 200 The specific forensic disadvantages in this case include the following. First, the accused did not become aware of the substance of most of the allegations until more than a decade after the events are said to have occurred, and therefore had no opportunity to investigate or preserve evidence at the time. Second, potentially relevant records, including employment rosters and telephone records, are no longer available. Third, a potentially important witness, LS, is unavailable to give evidence due to significant memory impairment, and her evidence cannot be tested. Fourth, the accused cannot now meaningfully investigate or challenge matters such as the presence or use of video playing equipment and the characteristics of a satellite dish connected to the TV at the Palmyra house during the relevant period. 201 More generally, the passage of time has affected the ability to test the complainants' accounts by reference to surrounding circumstances. Details that might once have been checked, confirmed or contradicted may no longer be available. The alleged events occurred in private. There are no eyewitnesses and no independent corroborative evidence. The prosecution case depends entirely upon the evidence of TMM and LLE for each count that they give evidence about. 202 I also take into account the well-recognised effects of delay on human memory. Memory is fallible and becomes less reliable with the passage of time. There is an increased risk that recollections may be affected by reconstruction, suggestion, or the development over time of a belief that events occurred, even if that belief is mistaken.164 203 In these circumstances, it would be dangerous to convict JM on the uncorroborated evidence of the complainants unless, after careful scrutiny, I am satisfied of the accuracy and reliability of their evidence to the criminal standard. I remain entitled to convict on that evidence, but only if, having taken full account of the delay and the forensic disadvantage it has caused, I am left satisfied beyond reasonable doubt of the guilt of the accused. 204 Accordingly, before acting upon the evidence of either complainant, I must scrutinise that evidence with particular care. I must consider whether the passage of time and the loss of forensic opportunities may give an appearance of plausibility that cannot now be properly tested. I must also take into account the possibility that aspects of the evidence may be honestly held but mistaken. 164 See generally, Cable [311] - [315]. -- 54 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 55 205 I have approached the evidence on each count in that way. In my assessment of TMM's and LLE's evidence, including my evaluation of their consistency, the presence or absence of supporting detail, the matters relied upon by the defence as undermining their reliability, and the accused's denials, I have taken into account the effects of delay and the resulting forensic disadvantage at every stage of my analysis. 206 Where I have accepted the evidence of either complainant, I have only done so after subjecting it to that careful scrutiny. In each instance where I have relied upon their evidence to find a count proved, I have done so because, notwithstanding the delay, the possibility of error, and the forensic disadvantage to the accused, I am satisfied beyond reasonable doubt that the evidence I accept is truthful, accurate and reliable. 207 Conversely, where those considerations have left me with a reasonable doubt, I have given effect to that doubt. The findings I have made on each count reflect that approach. Cross-admissibility and tendency application 208 The State seeks to rely on the charged conduct in counts 1 - 7 inclusive together with other uncharged conduct involving LLE in proof of a tendency that the accused had at the time of the alleged offending. The tendency alleged is that the accused had a sexual interest in young children and a tendency to act upon that sexual interest when the opportunity arose at his parents' house at Palmyra. Contextual evidence 209 The State sought to rely on uncharged conduct involving LLE, namely that on at least two further occasions at the same location the accused committed the same sexual act as alleged in count 7, LLE as contextual evidence in the manner described in LNN v The State of Western Australia.165 Such evidence may, enable a complainant to give a full account so that evidence of the accused's conduct in a familial setting does not appear inexplicable or 'out of the blue'; explain why an accused might feel able to act with impunity having offended in similar circumstances before; explain why a complainant cannot give details of a specific incident forming part of regular repeated offending; and form an integral part of an account of 165 LNN v The State of Western Australia [2021] WASCA 39 (LNN). -- 55 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 56 a connected series of events necessary to render the complainant's account complete and intelligible.166 210 In this case, however, I do not consider it necessary to rely on the uncharged conduct for those purposes. LLE gave clear and direct evidence of the charged incidents, which she described as particularly vivid because they were the first occasions and caused her the greatest distress. Although she estimated that there were approximately two further incidents of a similar kind at the same location, she was unable to recall their detail or timing. In those circumstances, the uncharged conduct adds little to the intelligibility or completeness of her account, and the charged conduct can be assessed on her direct evidence alone. For similar reasons I intend to only permit the State to rely on the charged conduct in support of the alleged tendency. Tendency evidence - legal principles 211 I am satisfied that the evidence of each complainant is cross-admissible as tendency evidence under s 31A of the Evidence Act 1906 (WA). Tendency evidence is a form of circumstantial evidence. The alleged tendency is an intermediate fact to be proven in its own right, not to the criminal standard but variously described in the recent High Court decision of R v AR167 as a 'lesser standard', 'a probability' or a 'rational inference' standard.168 212 Tendency reasoning involves assessing whether the evidence establishes the tendency and, if so, whether the tendency makes it more likely that the elements of the offence being considered are established.169 Section 31A requires that tendency evidence have significant probative value and that a fair-minded person would regard its admission as outweighing the risk of unfair trial. 213 Where an accused is charged with sexual offences against multiple complainants, evidence will generally have significant probative value only if there is some common feature linking the conduct. There is no requirement of 'striking similarity'. However, the nature and extent of the similarities, and their rational connection to the charged acts, are relevant to whether the evidence has significant probative value.170 166 LNN [175]. 167 R v AR [2026] HCA 10. 168 See discussion in Cable [360]. 169 Cable [359] - [361]. 170 DKA v The State of Western Australia [2017] WASCA 44. -- 56 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 57 Differences do not necessarily deprive the evidence of having significant probative value.171 Common features 214 The following common features are apparent across the conduct relied upon to establish the tendency: 1. Each complainant was very young. AJM (about 2 years of age), TMM (3 - 4 years of age), and LLE (3 - 5 years of age). 2. The accused's access to each of the complainants occurred at the Palmyra house, where he lived until late 2012 and was a trusted family member. The conduct occurred there and involved opportunistic sexual contact in the absence of other adults. 3. The conduct concerning TMM and LLE occurred over some duration and involved multiple incidents. 4. All conduct charged in count 1 (AJM), counts 2 - 5 (TMM) and count 7 (LLE), together with the uncharged conduct involving LLE, involved the accused introducing his penis into the relevant complainant's mouth. Count 6 involved cunnilingus, a different act but part of the same pattern of opportunistic sexual offending against young children at the Palmyra house. 215 I am satisfied that the evidence of TMM and LLE is capable of establishing that the accused had a sexual interest in young children and a tendency to act upon that interest when the opportunity arose at the Palmyra house. The common features are sufficient to show the conduct against each complainant was linked by that tendency. A fair-minded person would regard the public interest in adducing the evidence as outweighing any risk of unfairness, which is mitigated by the approach to the use of tendency evidence set out below. The evidence is therefore cross-admissible. Is the tendency established? 216 When considering whether the tendency is established, the combined weight of the whole of the evidence relied upon, not each individual occurrence separately, must be considered.172 The tendency must also have existed at the time of the count then being considered. 171 Walsh v The State of Western Australia [2024] WASCA 78. 172 Cable [399] - [400]. -- 57 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 58 217 For the reasons given below, I accept the evidence of TMM and LLE as to the essential acts they describe. It is sufficient for me to say at this stage of my analysis that the evidence of each of TMM and LLE, considered independently, satisfies me to the standard of 'a probability' or a 'rational inference' that the acts occurred and, further, from the totality of the charged conduct, I find the tendency established. Use of the tendency 218 It is the tendency only, not the individual conduct relied upon to establish it, that can be added to the other direct and circumstantial evidence relied upon by the State in proof of each charge. A finding that the tendency exists cannot by itself prove guilt on any count, because tendency evidence can only go to the likelihood that the accused committed the offence. The existence of the tendency cannot fill gaps in the prosecution case and cannot be used in substitution for evidence of the incidents charged. A person does not always act in conformity with an established tendency, and I must determine whether the accused acted in accordance with it on each occasion charged. 219 In relation to each count there are two pathways to a finding of guilt. The first is satisfaction beyond reasonable doubt on the direct evidence of the relevant complainant alone with respect to the count I am considering. The second is satisfaction beyond reasonable doubt based on the combined weight of that direct evidence together with the tendency and any other evidence relevant to the count.173 Even having found the tendency established, it remains possible to have a reasonable doubt in respect of a particular count. I can only convict if satisfied that every element of the count then being considered is proved beyond reasonable doubt. 220 I will apply these principles when addressing each count in turn. Other witnesses called by the prosecution 221 I now turn to the other witnesses called by the prosecution. 173 Cable [459]. -- 58 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 59 Evidence of AM - TMM's mother and accused's ex-wife Examination-in-chief of AM 222 AM gave evidence consistent with the uncontroversial facts above as to her marriage to the accused in 2005 and the two children of that marriage, TMM and AJM.174 223 In addition to what I have set out in the uncontroversial facts, AM said that prior to her separation from the accused, she visited his parents' house regularly and that Sunday lunch was a regular family occurrence. 224 In the early stages of separation, the accused had informal access to his children or formal visitation rights that he would come and go to her home when he wished to see the children. Because this arrangement became 'messy' she and the accused moved to a more formal process.175 At the beginning of 2011, the accused and AM attended mediation and agreed to a parenting plan. The key terms were that: • the children would spend time with the accused every Sunday at his parents' house; • the accused could spend time with the children during school and public holidays; and • Christmas and other special occasions, including birthdays, would be shared between the accused and AM. 225 The only occasion on a Sunday that AM could recall that the children did not attend the Palmyra house was one occasion when TMM was sick. 226 I have described the routine on Sundays of AM dropping off and the accused returning the children in my description of the uncontroversial facts. AM recalled that the accused's mother would usually be seated outside under a patio area when she arrived and would take the children. AM did not go inside the house during the drop-offs.176 The routine described by AM, which I accept, was not really in dispute in the trial although the accused did say at various times AM threatened him with respect to visitation of the children. 174 See generally ts 215 - ts 216. 175 See generally ts 217 - ts 218. 176 See generally ts 220 - ts 223. -- 59 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 60 227 AM recalls seeing LLE at the Palmyra house quite regularly during the Sunday drop-offs. She described that the accused's mother was usually babysitting LLE, who would be outside under the patio area playing at the time of drop-offs. She also confirmed this under cross-examination that she saw LLE at the garage/patio area with the accused's mother when she dropped TMM and AJM off.177 228 As I have set out in the uncontroversial facts, the children's Sunday visits to the Palmyra house ended when the accused moved to O'Connor. AM recalls meeting the accused's then partner LS around 2012 when the accused and her returned TMM and AJM to her house after a Sunday visit. She recalled that LS was in the car with the accused when he returned the children. Under cross-examination she clarified that she never saw LS at the Palmyra house herself. 229 Consistently with what I have already found in the uncontroversial facts, AM confirmed that the children had two overnight stays at the O'Connor house, that the final occasion was the weekend of Saturday 19 January 2013, and that she took AJM to see a doctor after the accused returned the children the following day. That weekend was the last occasion on which the accused had any visitation or contact with his children.178 230 AM's father is JB. He died in 2025. AM told the court her mother died in 2010. AM said that her father, JB had regular contact with TMM and AJM throughout their lives until his death. He lived no more than 10 minutes from AM's home. AM described him as a 'father figure' to the children acting as both father and grandfather. AM's evidence was that she had never observed anything that caused her concern about TMM or AJM having contact with her father and that TMM had never complained to her about JB sexually abusing her.179 Cross-examination of AM 231 AM was asked about a family gathering at MP's daughter's house in May 2019 which she attended with her children and at which she spoke to MP. Her evidence was that she could not recall MP disclosing anything to her at that gathering about the accused doing something sexual to LLE. 177 See generally ts 221. 178 See generally ts 225. 179 ts 226 - ts 227. -- 60 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 61 232 TMM made a complaint to police in December 2021. AM said that she had never had any conversation with MP about any allegation relating to TMM and the accused. 233 Counsel for the accused asked AM whether there was any discussion from December 2021 to December 2023 with MP (or anyone else) concerning sexual allegations against the accused. AM said that she had never discussed the case 'in depth' with anyone. She did acknowledge one occasion when MP had told her that LLE had made a disclosure about the accused sexually offending against her. AM said the only information that MP gave to her was to the effect that LLE had disclosed that the accused had done things to her with no further detail.180 She could not recall when or where that conversation took place other than it was at an informal catch up. She confirmed that TMM was present at the house when she had this conversation with MP, but that neither TMM nor LLE were present during the conversation nor within earshot.181 Re-examination of AM 234 In re-examination AM was asked to clarify what MP had actually said about LLE's disclosure. AM said she could not recall the exact words but it was to the effect that LLE had disclosed that the accused had done things to her but that MP did not go into any detail.182 She said that during that conversation she said nothing to MP about TMM's allegations against the accused and that she had never gone into detail with anyone about the case 'for obvious reasons'.183 235 I accept the evidence given by AM as being accurate, honest and reliable. Evidence of MP - accused's sister and LLE's grandmother 236 MP is the accused's sister and the grandmother of the complainant LLE.184 237 She said her parents moved into the Palmyra house around 2002, at about the same time she built her own home nearby in the same cul-de-sac. 180 ts 229. 181 See generally ts 229 - ts 230. 182 ts 231. 183 ts 231. 184 This summary is based upon the transcript of MP's evidence at ts 238 - ts 277. -- 61 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 62 238 MP described that at the time of the alleged events she had a very close relationship to her parents and that she went to her parents' house daily. The regular Sunday family lunches, as I have set out in the uncontroversial facts, continued until around 2012. MP's evidence was that she continued going to the house on Sundays even when family lunches stopped to help her mother.185 239 MP identified photographs of the property (Exhibits 2.7, 2.8 and 7) and stated the accused's bedroom was the first bedroom on the right of the photo in Exhibit 2.7. She said there were two televisions in the house, one in the front room and one in the accused's bedroom.186 240 MP said that her daughter and grandchildren, including LLE, moved into her house around 2009 and they lived with her until approximately 2015. MP said that LLE would spend around four mornings a week at the Palmyra house with her great-grandmother while MP and her daughter were working.187 241 MP's evidence was that after the accused moved back into the Palmyra house following his marriage separation, she began seeing pornography playing on the television in the front lounge room, including on Sundays.188 242 She described explicit sexual content and recalled occasions when TMM was watching it. On one occasion, MP said TMM was 'glued' to the television while AJM slept nearby and MP's father, who was terminally ill, was present but unaware.189 Her evidence was that she raised this issue with her mother, her siblings and other members of the family. Her mother's response was to tell the accused to go to his room and watch it. Cross-examination of MP 243 In cross-examination MP said she observed that the pornography was played by what she described 'the big - videos - tapes' not a disc. 244 MP was cross-examined about her police statement, in which she stated '[the accused] would often have pornography playing on the television when grandchildren and great-grandchildren were visiting the address and I would yell at him to turn it off'. Counsel put 185 ts 240 - ts 241. 186 See ts 253 - ts 255; ts 266. 187 See generally ts 247 - ts 249. 188 ts 256. 189 ts 258. -- 62 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 63 to MP that her statement referred broadly to grandchildren and great-grandchildren whereas her evidence in court was specifically only naming TMM. 245 MP accepted that on the specific occasion that she described in court, it was TMM not her grandchildren who she personally saw watching pornography. She went on to say that she told her grandchildren to walk away if they saw such material, that they also had been exposed to pornography including pornography played on the television in the accused's room which she described as having the door always open.190 I do not regard the omission from the police statement that was put to MP as being of any significance with respect to her credibility. I do not consider there to be any real inconsistency between her police statement and evidence in court. 246 MP accepted in cross-examination she did not mention the accused watching pornography on the television in his bedroom in her December 2023 police statement. Her explanation was that she had not realised that this was relevant and thought that the relevant discussion was only about the front room.191 Again, I do not consider that there is any significant inconsistency between the police statement that was put to MP and her evidence in court which causes me to doubt the evidence she gave. 247 MP accepted that she did not often see the accused at the Palmyra house during the week when LLE was present.192 248 MP confirmed that in 2017 when LLE was approximately 8 years of age that she told her that the accused had 'licked her vagina'.193 249 MP confirmed that a family gathering took place at her daughter's house in May 2019 and confirmed Exhibit 3 was a photograph taken on that occasion. That photo showed AM, TMM, LLE, MP among other family members. 250 MP confirmed that she spoke to AM on that day about allegations relating to the accused. She said that no children were present when they spoke. MP said that she had never spoken directly with TMM before TMM went to police in December 2021.194 190 See generally ts 267, ts 269. 191 See trial ts 269 - ts 272. 192 ts 263, ts 275. 193 ts 272. 194 See generally ts 273. -- 63 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 64 251 Defence counsel put to MP that she became aware of the investigation against the accused in mid-2023. She disagreed and said she first heard about it 'from family talk' in 2012 that '[he] was in trouble'. She also said that LLE then made her personal disclosure to her in 2017.195 Re-examination of MP 252 In re-examination, MP said LLE's disclosure to her occurred during a car trip when LLE said the accused had done 'inappropriate things'. Later, on the day of that disclosure, she asked LLE what the accused had done to her and LLE said that he had 'licked my lilly', which MP explained was a term she had taught her children and grandchildren to use when referring to female genitalia.196 253 In general terms I accept MP's evidence as being honest, accurate and reliable. Witnesses called by the accused 254 The accused called three witnesses, his older brothers FM and JLM and his twin sister, TH. FM 255 FM is the oldest of the accused's siblings. Between 2010 and his father's death he worked six days a week, had Sundays off and regularly attended the Palmyra house on Sundays to have lunch with his parents. He said that sometimes other family members came, sometimes it was just him. Further, on some Sundays he came to visit later in the evening if he had been out motorbike riding with friends. 256 FM said he rarely saw the accused at the house on Sundays and that he might have seen JM with his children a couple of times.197 He also only occasionally saw his sister, MP there saying 'sometimes she was there, sometimes she wasn't'. 257 FM denied ever seeing pornography on the television and said his parents did not own a DVD or VHS player. FM denied MP had ever mentioned pornography to him. 195 See generally ts 272. 196 ts 276 - ts 277. 197 ts 362. -- 64 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 65 258 FM moved into the Palmyra house about a year after his father died. He said that his mother got roller shutters on the windows during the time he was living there. He confirmed that all of the house windows had flyscreens. He identified the 'alleyway' on the side of the house in Exhibit 5.1 and Exhibit 13 saying that the obstruction visible in the photographs was installed to keep his dog out.198 259 FM said that he saw LLE at the Palmyra house 'many times' but he could not recall whether that was only Sundays or other days. Cross-examination of FM 260 FM was asked how many Sundays he did not go to his parents' house. He was not able to give a precise answer, ultimately estimating 'I'd say 10'.199 When asked how long he stayed, he answered, 'Probably a couple of hours, have lunch, hang out for a bit'.200 261 FM accepted he had no involvement in setting up the television, could not read, and would not know how to set up a TV.201 He agreed he never paid particular attention to the television and did not go there to watch TV, saying 'I had no reason to. I didn't go there to watch TV'.202 262 When asked whether his parents ever owned a camera, FM said that he did not remember his parents owning a camera. 263 FM initially denied that his mother did any gardening or watered anything in the backyard. He later accepted, with respect to flowers and pot plants, that his mother used to be out in the backyard watering, saying, 'I'd say yes 100 per cent to that'.203 When it was put to him that his mother would be 'out in the back looking after vegetation' - clarifying, 'Watering. Yeah', and 'if she had to water the pot plants, she was doing it every day ... through summer'.204 264 FM agreed that the side area of the house was one 'that no one really ever went into'. 198 ts 367 - ts 368. 199 ts 370. 200 ts 372. 201 ts 373. 202 ts 373. 203 ts 378. 204 ts 378. -- 65 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 66 265 FM confirmed that all the rear bedroom windows had removable flyscreens, and that they were not screwed in, saying they were 'easily removed and put back in'.205 266 In general terms I accept FM's evidence. Having said that, he struggled to remember events from 2011 - 2013 at the Palmyra house, was clearly not present on many of the Sundays when the other evidence establishes the accused and his children were there for lunch every week during January to October 2012 and that he had a different recollection to MP about the frequency of her attendance on Sundays. Nothing really turns on this. When propositions were put to FM which had a logical basis in fact, for example, his mother watered plants in the backyard, he accepted them, even though he could not independently recall them happening. JLM 267 JLM is the accused's older brother. Examination-in-chief of JLM 268 JLM described his attendance at the Palmyra house approximately two years before his father's death in March 2013 as 'very minimal ... more like an after work thing, quick visit', estimating his visits at 'sometimes none' in a given month saying, 'I was pretty slack in that department'.206 He said that he saw AJM and TMM at the house 'a couple of times'.207 269 He denied ever seeing pornography played at the Palmyra house.208 270 JLM also said that he saw LLE at the Palmyra house on a couple of occasions, seeing her during his after-work visits, saying 'A couple of times I seen LLE and (her brother) there'.209 Cross-examination of JLM 271 In cross-examination JLM confirmed that when he did visit, his visits were short (30 - 45 minutes) and that he generally remained outside or at the back of the house.210 205 ts 381. 206 ts 384. 207 ts 384. 208 ts 386. 209 ts 386. -- 66 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 67 272 JLM did not closely observe the television or its set up at the Palmyra house.211 When asked whether he could say with certainty whether there was or was not a VCR connected to the television at Palmyra, he said, 'I do remember, when he moved out of Hilton, we threw one in the bin'.212 JLM went on to say that 'That was the only one we had. He didn't take it with him to Palmyra. …. I'm pretty sure there wasn't [one at Palmyra]. Yeah'. When pressed on whether he had ever actually checked, he admitted, 'Never, no. No'. He added, 'if there was, the old man wouldn't know how to use it, that's for sure'.213 273 The State prosecutor asked JLM whether either of his parents had ever owned a camera and he replied, 'I don't think so'.214 TH Examination-in-chief of TH 274 TH said that she would visit the Palmyra house on Saturdays or Sundays depending on her son's sports schedule. She said the television was usually on when she was there, showing free-to-air channels. She denied ever seeing pornography and said she had never heard complaints about it. She also said there was no DVD or VHS player, and the house was not connected to the internet at the time. When asked whether her parents had ever owned a camera, she replied 'No'. Cross-examination of TH 275 The State prosecutor cross-examined TH about her frequency of visiting the Palmyra house on Sundays. TH's evidence as to her attendance was uncertain. She accepted that the accused was present on Sundays more often than she initially suggested. 276 The State prosecutor put to TH that she had read the prosecution brief and was 'fully aware of the allegations' against her brother. She denied tailoring her evidence, although she accepted that she sometimes felt a need to protect him.215 210 ts 387 - ts 388. 211 ts 388. 212 ts 388. 213 ts 388. 214 ts 393. 215 ts 416. -- 67 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 68 277 When it was suggested to her that there was a VCR or VHS player at the Palmyra house during the accused's time there, TH said she 'never saw one there' and stated 'there definitely was not'. She acknowledged she had never searched for one but said, 'if there was one - if mum and dad had one, it would have been in the lounge [room] with the TV … [and] I've never seen one on the property'.216 TH denied ever seeing pornography played at Palmyra house.217 278 TH confirmed she was aware of LLE's allegation that the accused took her through his bedroom window into the side area of the house. When asked about the flyscreen in the accused's bedroom window, by reference to Exhibit 2.8, TH said there had always been one, 'Yes, the flyscreen goes there' - identifying it as covering the right-hand side of a sliding window. When it was suggested that no flyscreen was visible in the photograph (Exhibit 2.10) and that a cloth or sock appeared where the flyscreen would sit, TH offered an alternative explanation, 'I know it had a hole in it, and he had a cloth there to cover the hole cos of midges and stuff, but I don't know'. She denied fabricating her evidence in that respect, 'No, I'm not ... That's the truth'. When the suggestion was put to her that she was raising the flyscreen issue to make LLE's alleged conduct sound more difficult, she replied, 'I can only tell you what I know'.218 279 I have some reservations in accepting TH's evidence as being reliable. It appeared influenced by reconstruction, and her evidence concerning the flyscreen was inconsistent with the photographic evidence. 280 As I will refer to in some detail when analysing the credibility of TMM's evidence, as part of the defence case a statement of the accused's then girlfriend, LS, was read into evidence which said amongst other matters that she had 'never witnessed anything untowards between JM and the kids'.219 281 I now turn to an analysis of the credibility of the evidence led by the State. 216 ts 418 - ts 419. 217 ts 425 - ts 426. 218 ts 425. 219 ts 402. -- 68 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 69 Closing addresses and issues raised as to the credibility of the complainants Short overview of the prosecution case 282 The State identified the central issue in the trial as to whether the alleged sexual activity occurred, it being accepted that TMM and LLE had each given evidence in support of every charge on the indictment; the question was whether the court accepted that evidence. The State submitted that the court did not need to resolve every aspect of the evidence, but only needed to be satisfied beyond reasonable doubt of the elements of each offence - and that the only disputed element was whether the sexual acts took place. 283 The State relied upon three interlinking matters, first the evidence presented showed that the accused had the opportunity to commit the offences in the manner alleged, second, the accused held a sexual interest in young children and a tendency to act on that interest at the Palmyra house and third, the evidence of TMM and LLE was honest, accurate and reliable. 284 With respect to opportunity, the State's case is that there is a number of matters not in dispute, one of which is that AJM, TMM and LLE each attended the Palmyra house on numerous occasions during the relevant period. 285 In relation to TMM the State relies on what it submits as being her accurate recall of peripheral details concerning the Palmyra house and the routine of Sunday visits including the use of particular bedrooms, her brother's sleep after lunch, the eating of mangoes and the timing of the accused's relationship with LS. Taken together, these matters demonstrate a reliable memory of the circumstances in which the offending was alleged to have occurred. In addition, there was further specific distinguishing features she gave in relation to individual counts, including the use of the term 'lollipop', LS opening the door on the occasion of count 3 and the accused's words following the incident in count 4. Further, with respect to LLE, uncertainty she had about the precise bedroom of the accused did not detract from her evidence and that any inconsistency as to the duration of the sexual act in count 6 was minor and indicative of honest recollection and that there was no evidence of contamination between the complainants. Further, the presence of other people in the house does not preclude a finding of the offending or make it less plausible. With respect to -- 69 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 70 pornography, the State submitted that any ability to make a positive finding about pornography being played should be treated as neutral rather than adverse to TMM's credibility. 286 Finally, the State submitted that the accused was not a reliable witness, that his evidence should be put to one side and in all the circumstances when the evidence is considered, the court can and should be satisfied beyond reasonable doubt that the accused committed each of the offences charged. Short overview of the defence case 287 Defence counsel similarly identified the central issue in the trial as being that the evidence in relation to each count 'rises and falls with the evidence of TMM and LLE'. There was no other corroborative evidence; no eyewitnesses, no admissions by the accused, and no forensic or other evidence as direct corroborative proof of the offences. The defence accordingly submitted the court had to 'really consider their evidence very carefully' before finding proof beyond reasonable doubt of any count on the indictment. 288 The defence accepted a number of matters as not being in dispute, accepting that TMM and AJM attended the Palmyra house on Sundays over an extended period and that LLE was also a frequent visitor to the house. The defence accepted that the accused had the opportunity to commit the alleged offences and that the household circumstances were such that periods of unsupervised contact could occur. The defence also accepted that the accused's father was seriously ill during the relevant period and remained at home and that LS attended at the house on some occasions. 289 When describing the Longman direction, I have identified the significant forensic disadvantage suffered by the defence by delay in complaint. Both the prosecution and the defence submitted that this was an appropriate case for a Longman direction. 290 Counsel for the accused identified a number of matters said to give rise to forensic disadvantage which I have outlined when describing the extent of the Longman direction required in this case. 291 The defence case was not that TMM and LLE had deliberately lied. Rather, the defence submitted that, because of the long passage of time and their very young age when the alleged offending was said to have occurred, they have come to believe over many years that these events happened. That belief, the defence argued, may have reinforced -- 70 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 71 and strengthened their memories, even if those memories are not accurate. Further these matters ought to be taken into account when assessing the reliability of their evidence. 292 On that basis, the defence invited the court to focus not on the honesty of the complainants, but on the accuracy and reliability of their evidence. It was submitted that visible distress when recounting events may reflect a sincerely held belief, but did not of itself establish that the events occurred as remembered. Accordingly, demeanour was of limited assistance in this case. 293 In addition to the submissions raised about the credibility of the complainants generally, the defence made a number of specific submissions for each count, specifically: 1. With respect to count 2, (and indeed all the counts concerning TMM) her evidence that the accused regularly played pornographic movies or videos in her presence at the Palmyra house, was unreliable and should not be accepted and to the extent that her evidence on this issue was not accepted, it ought to give rise to a reasonable doubt in respect of her description of all of the sexual acts. 2. With respect to count 2 (to TMM's account) that she was standing on the accused's bed during the sexual acts, was implausible for her to have been standing because having regard to her age and the ordinary height of the accused's bed, her evidence was more consistent with her head being at the chest height of an adult male rather than at groin height. 3. With respect to count 3, TMM's evidence of the acts described in that count should not be accepted in light of there being a statement by the accused's then girlfriend, LS, which was read into evidence, that statement being that LS did not see anything untoward from her observations of the accused and his children and TMM's evidence about LS walking into the room during count 3, was in direct contradiction to LS's statement. 4. With respect to count 5, although the defence accepted there was evidence of a routine, defence counsel submitted that despite evidence from other witnesses of the opportunity available to the accused to have committed the charged acts, there was insufficient detail of the frequency of those acts and other visitors to the Palmyra house to be satisfied of count 5 beyond reasonable doubt. -- 71 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 72 5. With respect to the counts involving the complainant LLE, whether the State had sufficiently rebutted any reasonable doubt arising from the fact that LLE and TMM had discussed alleged events before LLE's child witness interview and whether any discussions undermine the honesty, accuracy and reliability of their evidence. 6. Whether LLE's initial conduct to her grandmother, MP, referred only to the conduct the subject of count 6 but did not mention conduct of the type charged in count 7 or the uncharged conduct and, if so, whether that omission raises reasonable doubt as to the honesty, accuracy and reliability of her evidence. 7. Whether LLE's 2023 CWI is accurate given she described only the conduct of the charged accounts. 8. Whether LLE's inability to identify the accused's bedroom cast doubt on her evidence. Motive to lie direction 294 Before turning to my assessment of the complainants' evidence, I address the issue of whether there was any motive to lie. Although the defence expressly disclaimed any suggestion that TMM or LLE had deliberately fabricated their accounts, as I have directed myself, the apparent absence of a motive to lie cannot be used to strengthen the prosecution case or support a conclusion that either complainant is telling the truth. I have approached the evidence of the complainants individually and on the specific features of their evidence which I describe below, and not upon any inference drawn from an apparent absence of an identified motive to lie. 295 One further issue is that in his police interview and again as he said at the trial, the accused said that AM had throughout the period of Sunday visits threatened him and that she would 'stuff him up,' would 'get the kids onto him', and would ensure he never saw his children again, 'I'll do something to you so you never see the kids again'.220 In the interview he also appears to have suggested that AM had encouraged TMM's complaint against him. For the reasons I have set out in my assessment of the accused's credibility, I reject that evidence. I find that AM did not threaten him in the terms that he 220 See [77] above. -- 72 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 73 described and did not induce or encourage TMM to make a false complaint. In making this finding I again remind myself that the absence of this alleged motive cannot, of itself, strengthen the prosecution case or support a conclusion that TMM is telling the truth. My assessment of her credibility in the next paragraphs is based upon my assessment of the independent features of her evidence alone. Resolution of issues 296 I now turn to an assessment of the credibility of the complainants. In doing so, I have carefully scrutinised their evidence and borne in mind the forensic disadvantage to the accused, including the matters raised by defence counsel. TMM's evidence and why I accept it as being honest accurate and reliable 297 I first consider TMM's evidence. Her 2021 CWI and pre-recorded evidence before Judge Levy are materially consistent in her description of the events of counts 2, 3, 4 and 5. TMM consistently described the weekly routine that after lunch her brother would sleep in a separate bedroom, the accused would give her a mango and then she would then go with him into his bedroom where she would perform fellatio until he ejaculated. Her account remained consistent notwithstanding the almost four-year gap between the CWI (when she was 13) and her later evidence (at 17) when she gave evidence in court and was cross-examined. 298 I take into account TMM's age, (about 4 at the time of the alleged offending and 13 at first disclosure) and the delay in complaint. I have applied the delay in complaint and family violence directions that I have outlined above and I bear in mind that the absence of an earlier complaint and limitations in her recall of specific matters and details do not of themselves reflect adversely on her credibility. I also recognise that where multiple occasions or, repeated abuse, are alleged to have occurred a complainant may recall a pattern or routine of conduct together with particular incidents that stand out because of a distinguishing feature. TMM's evidence has that character. 299 The defence did not contend that TMM had deliberately lied or fabricated an allegation, rather her account suggests a false memory that developed over time. I have considered that submission carefully. TMM was a composed and thoughtful witness. She acknowledged the limits of her memory, particularly in relation to count 1 of which she -- 73 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 74 had no recollection when she was 13. She distinguished between what she did and did not recall and did not exaggerate. She maintained her account when challenged without any hesitation and where she corrected detail, she gave a coherent explanation for doing so. 300 In my view, these features are consistent with genuine recollection rather than reconstruction. In cross-examination she was tested on the issues of watching pornography, LS allegedly walking in on the sexual act described in count 3, the height of the accused's bed and more mundane matters such the pattern of the bed sheets on the bed that her brother slept in (rocket patterned sheets). Her answers were entirely consistent on these issues throughout her evidence. The consistency of her account between the child witness interview and the pre-recorded evidence strengthens the reliability of her evidence, bearing in mind she was recounting events from early childhood. I now turn to what the defence say are alleged implausible aspects of TMM's evidence. Inherent incredibility and unreliability of TMM's evidence Watching pornography 301 The defence challenged TMM's evidence that the accused and his father watched pornography in the lounge room221 of the Palmyra house during Sunday visits. The defence submitted that her evidence on this topic was unreliable. It was also suggested to TMM that, to the extent that she saw pornography on television she may have been confused between what she saw on the screen and the sexual abuse she alleges occurred to her. 302 As the watching of pornography is not an element of any charge and is not relied upon by the State to prove any offence, I assess the issue on the balance of probabilities. 303 TMM and MP both gave evidence that pornography was played on a television in the lounge room in the presence of TMM and AJM during Sunday visits. Before describing MP's evidence, it was not put to her that she had discussed with TMM the playing of pornography in the Palmyra house. Accordingly, I approach this issue on the basis that there is no suggestion of contamination or collusion between MP and TMM about the watching of pornography. 221 The witnesses variously described the room with the television as the lounge room or living room and in these reasons I use those terms interchangeable, but I am referring to the same room. -- 74 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 75 304 MP in her evidence describes specific occasions, including one where TMM was 'glued to the TV' watching explicit content while AJM slept beside her. FM, JLM and TH each denied seeing such material, but their evidence must be viewed in light of their limited attendance, brief visits, and lack of attention to the television. Their evidence must be considered in the context that they were unlikely to be present during the periods when the accused was with his children during the Sunday afternoons. FM attended Sundays only briefly to have a meal before leaving; JLM's visits were intermittent, and TH attended less frequently than FM or MP. None of them had any reason to enter the accused's bedroom and observe what equipment if any he kept in there. 305 The defence submitted that no VHS player existed at the house and that the evidence of FM, JLM and TH was inconsistent with MP's description of VHS tapes. In my view, the relevant question was not whether the accused's parents had a VHS player but whether the accused had access to one. I have found that he had his own television in his bedroom. The absence of evidence of the defence witnesses seeing a VHS player on the defendant's witness version does not make TMM's account implausible. There is nothing implausible about him having acquired a VHS player and having kept it in his bedroom. 306 There was a minor inconsistency between TMM's description of the pornography being accessed by a website and MP's description of the VHS tapes being played. I prefer MP's evidence on this inconsistency. This is a minor detail readily explained by TMM's age at the time of the events. 307 I am satisfied on the balance of probabilities that pornography was played in the lounge room during Sunday visits, and on some occasions, it was watched in TMM's presence. I reject the suggestion that TMM confused the acts that she alleges in her evidence with pornography she viewed. TMM's account included details most unlikely to have come from watching pornography including the differentiating details of the specific counts together with her specific recollections of the accused ejaculating. She rejected the propositions that she was mistaken about seeing pornography and conflating what she had seen with what she said happened to her. 308 Because the playing of pornography was not an element of any offence, nor was it relied upon by the State to prove the alleged sexual tendency, my finding that pornography was watched in the lounge room of the Palmyra house during Sunday visits is only relevant to my -- 75 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 76 assessment of TMM's credibility. Accordingly, I accept TMM's evidence that pornography was played at the house and it gives me further confidence in accepting her account as being honest, reliable and accurate. LS seeing nothing untoward 309 I have considered the evidence contained in LS's police statement made 27 June 2013 which was read into evidence as part of the defence case. LS suffers from significant memory impairment following two strokes and could not be called to give evidence. That is why her statement was read into evidence. In that statement LS said, in part, that she 'spent a lot of time with JM when he had access to the kids … (and she) never noticed any strange behaviour by JM when he had access to the kids'. She also said that she had 'never witnessed anything untoward between JM and the kids'.222 310 I accept that there is a prejudice to the accused because he was unable call LS to give evidence. Had she been available, the accused could have sought to clarify whether she recalled the incident alleged by TMM in count 3 and, if so, whether she could see into the room and what, if anything, she could see. The defence was therefore unable to explore in detail matters such as the extent of LS's view into the accused's bedroom on that occasion and what, if anything, she could see. On the other hand, LS could not be cross-examined by the prosecution as to the specific incident recounted by TMM. 311 I have taken those matters into account. However, the fact that LS said that she never noticed any strange behaviour by JM when he had access to the kids and nor she had ever 'witnessed anything untoward between JM and the kids' does not cause me to have any reasonable doubt as to TMM's evidence in relation to count 3. 312 TMM's evidence was that LS opened the door and stood to one side. From that position, TMM said LS would have seen the accused's side profile with his clothing lowered and likely would have seen her.223 TMM's account of LS's presence is detailed and specific. While these details are not essential to proving the elements of the offence, they form part of the surrounding narrative and explain why the incident stands out in her memory. The level of detail TMM describes supports a conclusion that her account reflects actual recollection rather than reconstruction. 222 ts 402, the kids necessarily being TMM and AJM. 223 2021 CWI, pages 38 - 39 and see [116], [117] above. -- 76 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 77 313 TMM's evidence of what LS saw is an opinion only and can only amount to speculation. The only person who could have said what she actually saw was LS. TMM's opinion about what LS could have seen cannot be relied upon as evidence of what she saw. I do not regard LS's evidence that she saw nothing untoward as necessarily being evidence that the incident the subject of count 3 did not occur. She may have been present as TMM testified and not seen anything. She may not have seen into the room. 314 I accept that JM has a significant forensic disadvantage because he could not call LS as a witness. However, even when I bear that disadvantage in mind, LS's statement does not cause me to doubt TMM's evidence of the essential elements of the offence or the sexual act she described in respect of count 3. LS's statement is not inconsistent with TMM's evidence. To find that there is an inconsistency requires me to speculate about what LS may have seen, based on TMM's perception. The statement of LS does not provide a reliable evidentiary foundation to doubt that the conduct described by TMM occurred. Having regard to the detail and coherence of TMM's evidence concerning the incident the subject of count 3 and the issues I have already mentioned about the evidence of LS and bearing in mind the defence submissions on these points I am not left with reasonable doubt when considering the defence submission LS's statement undermines TMM's account on count 3. Height of bed 315 In her 2021 CWI, before any challenge had been raised to this detail, TMM described the accused's bedroom and his bed, 'he had, like, a low bed'. She returned to the description when asked specifically about the bed, 'The - I just remember the bed was low, and he had, like, white and grey sheets on. Like, doona cover thing'. In the same interview, when describing how the sexual act came about, TMM said, 'So … I was on his bed, and then when I stood on his bed, um, I was about, like, where my head was if he was standing on the floor. That would be exactly where his thing - like, his dick would be'. She then added, 'It would go right to my face'.224 This explanation was not prompted by a question about physical mechanics. It was volunteered by a thirteen-year-old witness as the natural explanatory context for how the act occurred. It is the most direct available evidence on the physical plausibility question. 224 2021 CWI, page 17. -- 77 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 78 316 TMM also gave evidence of why she was standing on the bed. She was not placed there for the purpose of the sexual act. She was already standing on the bed waiting for a lollipop when the accused undid his jeans. This account explains how the relevant physical configuration arose without any implausible preliminary manoeuvre. 317 TMM described the mechanics of what then occurred, the accused had one hand down by his body and, with the other, held the back of her head. She said the accused placed his hand on her head without significant pressure applied; on subsequent occasions he pushed her head toward him. She demonstrated this in the interview by moving her head forward. 318 In her pre-recorded evidence in April 2025, TMM was asked in examination-in-chief to explain what she had meant in the CWI by describing the bed as low. She gave an initial estimate of approximately 10 cm, demonstrating the height with a thumb and forefinger gesture, and described it as a small bedframe. She confirmed the mattress did not sit directly on the floor. In cross-examination, defence counsel explored whether the 10 cm estimate referred to the total height of the bed or only the height of the frame legs. TMM clarified that the 10 cm referred to the height of the stand on which the mattress sat. She described the mattress as on the thinner side. When asked whether the total height from floor to the top of the mattress was more than 10 cm, she said she believed it would have been a bit bigger than 10 cm. She accepted the range of 15 - 20 cm and demonstrated the height with her hands. Levy DCJ, observing the demonstration, noted it looked close to 20 cm. 319 TMM was then shown a 2023 photograph of the accused's bedroom. She accepted that the bed in the photograph was significantly higher than 15 - 20 cm, but maintained that the bed she recalled was 15 - 20 cm high and that the bed in the photograph was shorter than the photographed bed. She said that the frame might have been the same but that the mattress appeared larger or higher than the one she remembered. Defence counsel put directly that TMM had deliberately described the bed as shorter in her evidence in order to make her allegation of standing on it more plausible. TMM denied that suggestion. 320 The totality of TMM's evidence on this point, taken across the 2021 CWI and her pre-recorded evidence, is consistent in its essential features. The accused had a low bed comprising a low frame and thin mattress. She could stand on the bed and bring her head to the height -- 78 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 79 of the accused's groin area when he stood on the floor beside the bed and he placed his hand on her head for the sexual act to occur. That is precisely what she volunteered in the CWI before any challenge, and it is what she maintained in cross-examination and I accept her evidence. Alleged disclosure about JB 321 For the reasons I have set out at [86] above, I reject the accused's account of TMM disclosing to him that JB had sexually abused her. TMM's denial of this alleged disclosure was unequivocal and was accompanied by a visible, emotional response when the proposition was put to her in cross-examination that JB had sexually abused her. That emotional response was consistent with her refuting a false and serious allegation made against her grandfather who had recently died and whom she described as 'a close and loving presence' throughout her childhood. Nothing in that response caused me to doubt the honesty of her evidence about this. No recollection of 2013 CWI 322 I do not draw any adverse inference as to TMM's credibility or as to the reliability of her evidence by virtue of the fact that when she gave evidence on 24 April 2025 at the age of 17, she was unable to remember the CWI in 2013 which she gave when she was aged 4 years and 10 months. I find that her lack of recollection is attributable to her age at the time of the CWI and that she was not describing a physical event relating to her. Overall assessment 323 Applying the family violence direction to TMM's specific circumstances, I am satisfied that her delay in making a full complaint is readily explained and does not affect her credibility. She was aged between 3 and 4 at the time and the accused, her father, was in a position of trust and authority during the Sunday visits. On her account, which I accept, he normalised the sexual conduct by exposing her to pornographic material in a family setting and referring to his penis as being like a lollipop. When she made partial disclosure when she was almost 5, it was sufficient to bring the visits to an end. Her delay in making a fuller complaint is explained by her young age, the normalisation of the conduct, the cessation of the conduct by the visits ending and the sensitivity of what occurred. I take those matters into account in applying the family violence direction such that I do not draw any adverse inference from the delay in complaint. -- 79 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 80 324 I find TMM to be credible and reliable witness in relation to counts 2, 3, 4 and 5. I reject the suggestion of false memory. I observed her evidence closely. Her evidence had a number of closely connected consistent details within it. Her account contains a coherent routine supported in part by other evidence (including the Sunday lunch pattern, mango, and her brother's sleep), together with specific distinguishing details across count 2 (the first occasion she could recall, that the accused initially give her lollipops on the Sunday visits but on this occasion he said that the lollipops were bad), count 3 (the identification of LS opening the door) and count 4 (that the accused made to the effect that she had 'done good'). These features support the conclusion that her evidence is not reconstructed or invented. 325 Having closely examined the credibility and reliability of TMM's evidence and scrutinised it with care in the context of the Longman, family violence and delay in complaint directions, the passage of time, her age when the relevant incidents are said to have taken place, together with the significant forensic disadvantage the accused has in this case and his denials of the conduct, I find that TMM's account was credible and reliable. As I will turn to, I accept her evidence on the essential elements of each of counts 2, 3, 4 and 5 beyond reasonable doubt. LLE's evidence and why I accept it as being honest accurate and reliable 326 In her child witness interview, LLE appeared confident and articulate expressing herself clearly and directly. Phrases such as 'scared me', 'shrugged it off' and 'put a very bad man in jail' reflect the informal speech of a 14-year-old rather than a rehearsed account. She answered questions directly, maintained her account consistently throughout her evidence. She acknowledged uncertainty when she could not recall matters, for example the exact location of the accused's bedroom. On the essential facts relating to counts 6 and 7, her evidence was consistent and detailed. 327 LLE held some uncertainty about peripheral matters including the layout of the Palmyra house and the precise bedroom used by the accused. These matters do not affect my assessment of the credibility of her evidence of the core issues. 328 Her evidence bore the hallmarks of genuine recollection about events which have had a lasting impact on her. She gave specific details about her clothing, the use of a tissue in count 6 and the physical -- 80 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 81 features of the Palmyra house, including the backyard, including grape vines and potted plants that her great-grandmother watered at the time of the events that she was describing. These features support a conclusion that her account is based on genuine memory. Contamination of LLE and/or TMM's evidence 329 The defence submitted that LLE's account may have been contaminated through contact with family members, including TMM and others, and that there was some conscious or unconscious alteration of her memory caused by information received by others. 330 In R v KMP225 his Honour Judge Handshin (as his Honour then was) made the following observations about the concepts of collusion and contamination which I respectfully adopt: 79 Collusion implies that two or more witnesses have effectively 'got their heads together' or arrived at an agreement or a plan with each other to falsify allegations of criminal behaviour against an accused. Collusion may also involve a more subtle meeting of the minds that reflects something of a hybrid of collusion and contamination. In a case involving multiple witnesses making similar allegations against an accused, it is self-evident that the similarities cannot be probative of the improbability of wrong or false allegations if it is a reasonable possibility that the witnesses have 'hatched a plan' or otherwise colluded to make false allegations. 80 Contamination, which is concerned with the conscious or subconscious altering of a witness' memories because of information they have learnt or received from others, must also be excluded as a possibility before similarities between multiple accounts can be used for improbability reasoning. 81 The concept of 'contamination' acknowledges the malleability of human memory both organically and when a person is subjected to any form of external influence, including exposure to third party information that has the capacity to alter a person's perception of a historical event. 331 Counsel for the accused expressly disclaimed any prospect of collusion between LLE and TMM (or anyone else) to falsify allegations against the accused. Rather, the submission was, there was a conscious or subconscious altering of their memories through information provided to them by others. In approaching this submission, the State must exclude the reasonable possibility of both collusion and contamination. 225 R v KMP [2024] SADC 100 [79] - [81]. -- 81 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 82 332 In [171] - [176] I have referred to LLE's evidence under cross-examination about a number of the matters that the defence point to with respect to potential contamination. 333 In relation to count 7, the accused submitted that LLE's initial disclosure to her grandmother, MP, was limited only to cunnilingus, and that the allegation of oral penetration emerged later after TMM's disclosure, raising the possibility that the allegation in count 7 was influenced by information provided to LLE by TMM or another person. 334 As to discussions between TMM and LLE on the evidence led at the trial, no detailed discussion seemingly occurred between them as to the specific details of the incidents which they separately describe in their evidence. To the extent that there were discussions, they seem to have been general in nature, and they were described in conclusory terms, for example, 'that TMM may have said to LLE that she was raped', and that it happened many times at [the Palmyra house]'226 or, that her father had made her suck his penis.227 Discussions between MP and AM also appeared very general in their terms. No inference can be drawn of any discussions between MP and AM (which may have been overheard by TMM and LLE or one or both of them) or, indeed, any discussions between TMM and LLE themselves in which any disclosure of the other's account of the alleged sexual offending was relayed. 335 LLE's language about putting 'a very bad man in jail' and her use of the word 'us', do not indicate embellishment or alignment of her account with TMM's allegations. In my view, a 14-year-old girl who genuinely believed she was sexually abused and understood that the person she identified as her cousin may have been abused by the same person, may approach a police interview with an emotion and an expressed sense of purpose with respect to the outcome that her evidence may give. In my view, those characteristics do not undermine the credibility of the specific account that she gave concerning counts 6 and 7. I also note that her use of the word 'us' was corrected immediately. I give her use of the word 'us' little weight in my assessment of her credibility. 336 I reject the possibility that LLE's allegations on count 7, (or the uncharged conduct) or, for that matter, any of her allegations, are the product of contamination (or collusion). I do not accept that 226 See [173] above. 227 See [141] above. -- 82 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 83 there was any discussion between TMM and LLE in which TMM told LLE in any detail of her description of the events the subject of counts 2, 3, 4 or 5. My observation was that LLE's evidence and her account of events was based on genuine memory and not reconstruction or contamination. 337 I accept beyond reasonable doubt that LLE's evidence about what happened in the incidents the subject of counts 6 and 7 is not the product of a contaminated memory. For the avoidance of any doubt, I also find beyond reasonable doubt that TMM's evidence about what happened in the incidents the subject of counts 2, 3, 4 and 5 is not the product of a contaminated memory (or any collusion). 338 I have also considered LLE's evidence in light of the accused's own evidence whereby he accepted that LLE was often at the Palmyra house, that on many occasions only he, his mother, father and LLE were present and that LLE was at the house on weekdays on various occasions after he had returned from work. This evidence establishes beyond reasonable doubt that the opportunity for offending of the type alleged in counts 6 and 7 existed. 339 Applying the family violence direction to LLE's circumstances, I am satisfied that her delayed and initially limited disclosure, does not affect her credibility. She was aged between 4 and 5 at the time of the incidents. The conduct occurred at her great-grandmother's home, to whom she was closely attached, and the accused was a trusted family member whose presence and access were entirely ordinary. Her use of the lollipop language framed the sexual acts in terms familiar to a young child and contributed to its normalisation. Her description that she 'shrugged it off' after the events of count 7 and walked back to where her great-grandmother was gardening is consistent with a young child processing what had happened. When she did disclose to MP at approximately aged 7, which based on her date of birth places the disclosure in late 2016 or early 2017, she did so seemingly in limited terms which, in my view, is consistent with a child coming to understand and speak about what had occurred. The further delay until her formal complaint to police in December 2023 is also explained by her young age at the time of the events. I draw no adverse inference from the delayed or staged nature of her disclosure. 340 I find LLE to be credible and reliable witness in relation to counts 6 and 7. I observed her evidence, including her demeanour when giving evidence, closely. For the reasons I have set out in -- 83 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 84 [330] - [336], I do not accept the submission that LLE's account is the product of contamination. My conclusion as to the credibility of LLE's account applies equally to the allegations in count 6 and count 7. I reject the suggestion of false memory, contamination or collusion. I am satisfied beyond reasonable doubt that the accused committed the acts she described. 341 Her account contains specific distinguishing details across count 6 (the first occasion she could recall, that the accused took her into his bedroom, how he undressed her, her description of the sexual act, her revision of the duration of the act and his use of the tissue) and count 7 (her description of the accused taking her through his bedroom window, her description of the sexual act and her great-grandmother calling for her). These features support the conclusion that her evidence is not reconstructed, invented or the result of contamination, rather her description of events is a genuine recollection rather than a reconstruction from being told anything by TMM or anyone else. I am satisfied that LLE's evidence on the essential elements of count 7 come from her own experience and that she is describing events according to her genuine recollection. 342 Having closely examined the credibility and reliability of LLE's evidence and scrutinised it with care in the context of the Longman, family violence and delay in complaint directions, the passage of time, her age when the relevant incidents are said to have taken place, together with the significant forensic disadvantage the accused has in this case and his denials of the conduct, I find that LLE's account was credible and reliable. I accept her evidence. 343 In light of the findings I have reached I turn to consider each count on the indictment individually. 344 In determining each count, guilt must be assessed by reference to the direct evidence relating to that count. The existence of the sexual tendency I have found that the accused held does not relieve the prosecution of the obligation to prove each element of each charged offence beyond reasonable doubt. 345 In this case, although I have found the tendency established, I do not rely upon that finding to prove the offences charged in counts 2 - 7. For the reasons that follow, I find that those counts are proved, on the basis of the direct evidence the prosecution led on each count. -- 84 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 85 Count by count analysis Count 1 346 Count 1 alleges that between 1 January 2012 and 21 January 2013 at Palmyra, the accused sexually penetrated AJM, a child under 13, by introducing his penis into AJM's mouth. The State relies on TMM's 2013 CWI and the existence of the accused's sexual tendency which I have found. 347 TMM gave the 2013 CWI when she was 4 years and 10 months old. By the time she gave pre-recorded evidence in April 2025 she had no independent memory of the events she described in the 2013 CWI or of the interview itself. Her only knowledge of the facts the subject of count 1 came from watching the recording of the 2013 CWI with the State prosecutor the week before she gave her evidence. As a result, the account in the interview could not be meaningfully tested in cross-examination, specifically, some of the apparent inconsistencies I have highlighted at [104] - [105] above, including that the accused filmed or took photos of the event. In this respect I make no finding that the accused's mother had a camera at the relevant time or that he had access to such a camera at the relevant time. 348 I watched the 2013 CWI closely and have reviewed the transcript of that interview. TMM described events in the language of a very young child. She said the accused exposed his penis and shook it with 'water colour' dripping from it, said he was 'being mean with his willy,' and described him putting his penis into AJM's mouth with AJM trying to push it away. Her account is internally coherent and consistent with the setting, including references to ejaculation and movement within the house. The account appears accurate in its essential features. 349 Despite that assessment, I am not satisfied beyond reasonable doubt that count 1 is proved, for three reasons. First, the inability to test TMM's account by cross-examination significantly weakens its probative value. Second, when asked whether the reason she could not remember the events was that they had not occurred, TMM replied 'I don't believe that's true'. That response reflected belief formed after watching the recording, not independent recollection, and cannot remove a reasonable doubt. Third, the accused denies the conduct, and while I have found him unreliable in significant respects, scepticism about a denial is not proof of guilt. -- 85 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 86 350 Notwithstanding that I have found that the accused had the tendency alleged by the State, specifically that he had a sexual interest in young children and a tendency to act upon that sexual interest when the opportunity arose at the Palmyra house, that tendency cannot by itself prove guilt on any count. Further, the existence of the tendency cannot fill gaps in the prosecution case and cannot be used in substitution for evidence of the incidents charged. The inability to test TMM's account by cross-examination, notwithstanding the existence of the sexual tendency, means that a reasonable doubt exists with respect to count 1. Additionally, AJM gave no evidence. I do not speculate about the reason for that. In all, my consideration of count 1, without the ability to test TMM's 2013 CWI account, I am unable to exclude reasonable doubt. 351 The offence is therefore not proved to the criminal standard. The verdict on count 1 is not guilty. Element of identity for counts 2, 3, 4 and 5 352 With respect to each of counts 2, 3, 4 and 5, I am satisfied beyond reasonable doubt that JB did not sexually offend against TMM and that mistaken identity is excluded, for the reasons I have already set out above. The real issue in each of those counts is whether the accused introduced his penis into TMM's mouth and whether her evidence is reliable. Count 2 353 Count 2 alleges that between 1 January 2012 and 21 January 2013 at Palmyra, the accused sexually penetrated TMM, a child under 13, by introducing his penis into her mouth. 354 There is no dispute about the elements of identity or TMM's age (or indeed LLE's age) for any of the counts. The real issue is whether the accused introduced his penis into TMM's mouth and whether her account is reliable. 355 TMM described the accused's bed as being very low in her 2021 CWI, well before any challenge was made by the defence to that detail. She maintained that description throughout her evidence including when shown later photographs. This supports the reliability of her account. The defence submission that her account is physically implausible is not made out. On her evidence 'the accused put his hand on the back of her head and, in effect, guided her head' towards his -- 86 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 87 penis to facilitate the act.228 I accept TMM's evidence of the physical relationship between her position on the bed and the accused's body when the sexual act occurred.229 356 TMM said the accused ejaculated at the end of each incident, usually onto the floor or surrounding surfaces, and specifically that he never ejaculated inside her mouth. This precise detail reflects genuine recollection rather than reconstruction. 357 I accept TMM's evidence as truthful and reliable, having scrutinised it with great care in light of the passage of time, her young age at the time of the alleged offending, and the forensic disadvantage to the accused arising from the delay in complaint. Having done so, I am satisfied beyond reasonable doubt that, on an occasion most likely in the early part of 2012, in his bedroom at the Palmyra house, the accused introduced his penis into TMM's mouth, causing her to suck it. I am not left with a reasonable possibility that his denial is true. The verdict on count 2 is guilty. Count 3 358 For the reasons that I have set out in [308] - [313] LS's statement does not provide a reliable evidentiary foundation for concluding that nothing untoward occurred. For the reasons I give in those paragraphs, I am not satisfied that LS's statement gives rise to a reasonable doubt in respect of count 3. In particular, TMM's account that LS opened the bedroom door during this incident and stepped back is a detail specific to this occasion that I accept as reflecting genuine recollection consistent with my findings at [308] - [313] above. 359 I accept TMM's evidence of the incident in count 3 as truthful and reliable, having scrutinised it with great care in light of the passage of time, her young age at the time of the alleged offending, and the forensic disadvantage to the accused arising from the delay in complaint. Having done so, I am satisfied beyond reasonable doubt that, on an occasion during 2012 after the incident identified in count 2, in his bedroom at the Palmyra house, the accused introduced his penis into TMM's mouth, causing her to suck it. I am not left with a reasonable possibility that his denial is true. The verdict on count 3 is guilty. 228 2021 CWI, page 19. 229 See [316] - [321] above. -- 87 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 88 Count 4 360 On the occasion charged in count 4, TMM distinguished this incident from the routine in two ways. The first is that she felt tired after the sexual act and lay on the bed. Second, the accused sat beside her and said words to the effect of 'you done good' or 'good job'. In my view, these details point to an authentic recollection differentiating the occasion from other occasions. The fact that the accused made a remark of that nature is likely to be memorable to a 4-year-old child. The contextual difference from the routine has the quality of genuine recollection. 361 I accept TMM's evidence of the incident in count 4 as truthful and reliable, having scrutinised it with great care in light of the passage of time, her young age at the time of the alleged offending, and the forensic disadvantage to the accused arising from the delay in complaint. TMM was uncertain whether the incident in count 4 occurred before or after the incident in count 3. It is unnecessary for me to resolve that question, each incident is separately charged and I am satisfied that the incident the subject of count 4 occurred on a different day from the incidents the subject of counts 2 and 3. For this reason I am satisfied beyond reasonable doubt that, either before or after the incident in count 3 and before November or December 2012 in his bedroom at the Palmyra house, the accused introduced his penis into TMM's mouth, causing her to suck it. I am not left with a reasonable possibility that his denial is true. The verdict on count 4 is guilty. Count 5 - Persistent sexual conduct 362 The State's case on the charge of persistent sexual conduct is based around the routine pattern which occurred on Sundays at the Palmyra house. TMM described a regular pattern with consistent features, the same timing, location and acts. Specifically, on almost every Sunday over about a year with the exception of two to four Sundays when family gatherings occurred at the house, the same pattern occurred. Namely, the family would have lunch every Sunday and after lunch AJM would sleep. TMM would have a mango and then go with the accused into his bedroom where the same sexual act that TMM described in counts 2, 3, and 4 occurred. 363 The accused's own evidence provides significant support for the opportunity for such conduct. He accepted that his children spent a full day at the Palmyra house every Sunday; that AJM usually slept for -- 88 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 89 about two hours after lunch; that TMM ate mangoes 'most of the time' while AJM slept; that he was alone in his bedroom with TMM on some occasions; that LS was not present every Sunday; and that other family members were not present for the entire afternoon. These concessions are consistent with the routine TMM described occurring regularly throughout the charged period. 364 TMM's identification of two to four Sundays when nothing occurred, and her explanation of why, further supports the reliability of her evidence. 365 I accept TMM's evidence of the incident in count 5 as truthful and reliable, having scrutinised it with great care in light of the passage of time, her young age at the time of the alleged offending, and the forensic disadvantage to the accused arising from the delay in complaint. Having done so, I am satisfied beyond reasonable doubt that after count 2, until at the earliest October 2012, in his bedroom at the Palmyra house, the accused introduced his penis into TMM's mouth, causing her to suck it. This conduct occurred on four or more occasions on four or more different days within the charged period, including counts 2, 3 and 4, and, in fact, on many more occasions than four. I accept beyond reasonable doubt that after the incident constituting count 2, the accused took TMM into his bedroom on Sundays after lunch and introduced his penis into her mouth on almost every Sunday until approximately October 2012, with only two to four exceptions when family gatherings prevented the opportunity. In this respect I am satisfied beyond reasonable doubt that the conduct occurred on multiple occasions well exceeding the statutory requirement. The accused's denial is not reasonably possibly true. The verdict on count 5 is guilty. 366 I now turn to the counts concerning LLE. Count 6 367 As I have noted for counts 2 - 5 the elements of identity and age are not in dispute. The same observations apply for count 6 and 7. The real issue is whether the sexual offending alleged occurred and whether LLE's account is reliable. LLE described the incident in detail, including her clothing, explained her dress was a favourite given to her by her great-grandmother. She described how the accused removed it and put it back on her afterwards and the accused's use of a tissue. The level of detail LLE described, including the sexual act has, in my view, the quality of a genuine memory of a specific event. -- 89 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 90 368 Her correction of the duration of the incident from 'maybe seven minutes,' to saying it lasted no more than five minutes supports her reliability. A witness exaggerating or constructing an account would have no reason to reduce a detail that could make the allegation appear more serious. The correction is consistent with genuine memory. Her reference to the accused wearing a beanie accords with other evidence. I exclude the possibility that her account of this incident was affected by contamination. 369 Based upon LLE's description of the sexual act that 'he played with my lily with his tongue' the accused sexually penetrated LLE by engaging in cunnilingus, meaning licking, kissing and sucking the genital aspects of LLE's labia. The description given is clear beyond reasonable doubt that JM made contact with LLE's vulva (the external aspects of the vagina) with his tongue. 370 Count 6 is alleged to have occurred between 7 April 2012 and 8 April 2014. LLE described the incident the subject of count 6 as occurring when she was close to 4 years of age (she was born in April 2009). The accused purchased his O'Connor property on 18 October 2012 and, on his evidence, moved there in late 2012230 and then lived there full-time. His parents continued to live at the Palmyra house together until his father's death in mid-March 2013. The accused accepted that, after moving to O'Connor, he continued to return to the Palmyra house from time to time, but usually on Fridays when he finished work at midday.231 He said on some of those on occasions LLE was present.232 The accused sought to minimise the frequency of those visits. The accused also said when he moved out to his O'Connor property, FM moved into the Palmyra house. I find that FM moved into the Palmyra house during 2014, consistent with FM's own evidence that he moved in approximately a year after his father's death in March 2013, I am satisfied beyond reasonable doubt that the accused visited the Palmyra house on a recurrent, albeit irregular, basis after late 2012, including in the period leading up to his father's death in March 2013 (and after that), notwithstanding his evidence that his visits were limited. The combination of his ongoing ability to attend at the Palmyra house, his admitted visits there after late 2012, and LLE's regular presence there establishes beyond reasonable doubt that he had the opportunity to commit the offending alleged in count 6 within the charged period. 230 ts 316 - ts 317. 231 ts 348. 232 ts 34. -- 90 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 91 371 I accept LLE's evidence of the incident in count 6 as truthful and reliable, having scrutinised it with great care in light of the passage of time, her young age at the time of the alleged offending, and the forensic disadvantage to the accused arising from the delay in complaint. Having done so, I am satisfied beyond reasonable doubt that, on an occasion in late 2012 or early 2013, in his bedroom at the Palmyra house, the accused licked LLE's vagina. I am not left with a reasonable possibility that his denial is true. The accused's denial is not reasonably possibly true. The verdict on count 6 is guilty. Count 7 372 The central challenge to count 7 is the risk that LLE's account was contaminated by her knowledge of TMM's allegations before her own child witness interview in December 2023. 373 I do not accept that submission made by defence that LLE's account suffers from contamination. 374 LLE described features of count 7 that are unlike TMM's account and could not have been derived from it. She described climbing through the accused's bedroom window, being with the accused at the side of the house, kneeling on the ground, hearing her great-grandmother call her name, and returning to the garden. TMM's incidents occurred entirely inside the bedroom. LLE also described the accused keeping a container of lollipops in his cabinet and using them as a reference point before the sexual act she described in count 6. There is no evidence TMM and LLE spoke about that detail. Its appearance in LLE's account weighs against contamination. 375 LLE's misidentification of the bedroom number does not undermine her account. There was only one bedroom with a window opening onto the side area - the accused's bedroom. LLE identified the correct room by description while assigning it the wrong number. In re-examination she explained that the acts themselves were clear in her memory, but the layout of the house was not - precisely what one would expect from a witness recalling events from early childhood. 376 I have taken the contamination risk fully into account. Having done so, I am satisfied that LLE's account of count 7 reflects her own recollection of events and is not the product of contamination. -- 91 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 92 377 For similar reasons that I have expressed at [370], I am satisfied beyond reasonable doubt that the accused had the opportunity to commit the offending alleged in count 7, which I have found occurred sometime in 2013. The evidence does not permit a precise identification of the dates of the accused's attendances at the Palmyra house; however, it clearly establishes that, notwithstanding his relocation to O'Connor, he continued to have access to the Palmyra house and to be present there on occasions when LLE was also present. 378 I accept LLE's evidence of the incident in count 7 as truthful and reliable, having scrutinised it with great care in light of the passage of time, her young age at the time of the alleged offending, and the forensic disadvantage to the accused arising from the delay in complaint. Having done so, I am satisfied beyond reasonable doubt that, on an occasion in 2013 but before 8 April 2014, but after the incident in count 6 the accused took LLE from his bedroom to the side of the Palmyra house, and introduced his penis into LLE's mouth, causing her to suck it. I am not left with a reasonable possibility that his denial is true. The accused's denial is not reasonably possibly true. The verdict on count 7 is guilty. 379 For these reasons, my verdicts are as follows: • Count 1 - not guilty. • Counts 2, 3, 4 and 5 - guilty. • Counts 6 and 7 - guilty. 380 In reaching those verdicts I have assessed the evidence independently on each count, applied the Longman warning and the family violence direction throughout and rejected the accused's denials as not reasonably possibly true on each count upon which I have found him guilty. -- 92 of 93 -- [2026] WADC 42 CURWOOD DCJ [2026] WADC 42 [PB] Page 93 I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. LP Associate to His Honour Judge Curwood 27 MAY 2026 -- 93 of 93 --