[2025] SADC 57

Prosecution: R Counsel: MR R WALKER WITH MS J HOULAHAN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Defendant: D, DJ Counsel: MR JA ENGLISH - Solicitor: LEGAL SERVICES COMMISSION (SA) Hearing Date/s: 15/02/2023 to 16/02/2023, 20/02/2023 to 24/02/2023, 04/09/2023 to 08/09/2023, 04/12/2023, 12/02/2024 File No/s: DCCRM-20-1213 B DISTRICT COURT OF SOUTH AUSTRALIA (Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v D, DJ Criminal Trial by Judge Alone [2025] SADC 57 Reasons for the Verdicts of his Honour Judge Allen 21 May 2025 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES The accused elected for trial by judge alone on two counts of maintaining an unlawful sexual relationship with a child, two counts of unlawful sexual intercourse with a person under 14 years and one count of indecent assault, contrary to ss 50(1), 49(1) and 56 respectively, of the Criminal Law Consolidation Act 1935 (SA). It is alleged that between 1 January 1993 and 31 December 2001, the accused committed the acts against [AL] of maintaining an unlawful sexual relationship with [AL] by engaging in two or more unlawful sexual acts with [AL], namely: (a) touching her breasts on one occasion; (b) performing an act of cunnilingus upon her on more than one occasion; (c) exposing his penis to her on one occasion; (d) kissing her thighs on more than one occasion; (e) causing her to touch her vagina on one occasion; and (f) showing her a pornographic magazine on one occasion. It is further alleged that between 1 January 2001 and 31 December 2002, the accused committed two acts against [SB] of unlawful sexual intercourse by performing an act of cunnilingus upon her. -- 1 of 87 -- It is further alleged that between 1 January 2001 and 31 December 2002, the accused committed the act against [SB] of indecent assault by biting her buttocks. It is further alleged that between 1 January 2000 and 31 December 2007, the accused committed the act against [ID] of maintaining an unlawful sexual relationship with [ID] by engaging in two or more unlawful sexual acts with [ID], namely: (a) rubbing his penis against her bottom on more than one occasion; (b) touching her vagina on one occasion; (c) causing her to touch his penis on one occasion; (d) causing her to perform fellatio upon him on more than one occasion; (e) touching her thigh on one occasion; and (f) inserting his finger into her vagina on one occasion. Verdict: Guilty on count 1. Not guilty on counts 2-5. Criminal Law Consolidation Act 1935 (SA) ss 49(1), 50(1), 56, 65; Evidence Act 1929 (SA) ss 34CB, 34M, 34P, 34R, 34S, referred to. Hughes v The Queen (2017) 263 CLR 338; R v Cassebohm (2011) 109 SASR 465; R v Maiolo (No 2) (2013) 117 SASR 1; R v W, PK [2016] SASCFC 5; R v R, PA [2019] SASCFC 19; R v H, T (2010) 108 SASR 86; R v El Rifai [2012] SASCFC 98; R v C, CA [2013] SASCFC 137; MDM v The Queen (2020) 136 SASR 360; DES v The Queen [2020] SASCFC 32; Phillips v The Queen (2006) 225 CLR 303; R v Bonython-Wright (2013) 117 SASR 410; Sexton v The Queen [2022] SASCA 73; R v MJJ; R v CJN (2013) 117 SASR 81; R v Murphy [2024] SASCA 37; Mule v The Queen (2005) 79 ALJR 1573; Nguyen v The Queen (2020) 269 CLR 299; Murray v The Queen (2002) 211 CLR 193, considered. -- 2 of 87 -- 3 R v D, DJ [2025] SADC 57 [Criminal] Introduction 1 The accused is charged on an Information dated 14 February 2023 with the following offences: Count 1 Offence Details: Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935). Particulars [D, DJ] between the 1st day of January 1993 and the 31st day of December 2001, at Woodside, maintained an unlawful sexual relationship with [AL], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely: a) touching her breasts on one occasion; b) performing an act of cunnilingus upon her on more than one occasion; c) exposing his penis to her on one occasion; d) kissing her thighs on more than one occasion; e) causing her to touch her vagina on one occasion; and f) showing her a pornographic magazine on one occasion. … Count 2 Offence Details: Unlawful sexual intercourse with a person under 14 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935). Particulars [D, DJ] between the 1st day of January 2001 and the 31st day of December 2002, at Woodside, had sexual intercourse with [SB], a person under the age of 12 years, by performing an act of cunnilingus upon her. … -- 3 of 87 -- 4 Count 3 Offence Details: Unlawful sexual intercourse with a person under 14 years. (Ibid). Particulars [D, DJ] between the 1st day of January 2001 and the 31st day of December 2022, at Woodside, had sexual intercourse with [SB], a person under the age of 12 years, by performing an act of cunnilingus upon her. … Count 4 Offence Details: Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935). Particulars [D, DJ] between the 1st day of January 2001 and the 31st day of December 2002, at Woodside, indecently assaulted [SB], a person under the age of 12 years, by biting her buttocks. … Count 5 Offence Details: Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935). Particulars [D, DJ] between the 1st day of January 2000 and the 31st day of December 2007, at Woodside, maintained an unlawful sexual relationship with [ID], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely: a) rubbing his penis against her bottom on more than one occasion; b) touching her vagina on one occasion; c) causing her to touch his penis on one occasion; d) causing her to perform fellatio upon him on more than one occasion; e) touching her thigh on one occasion; and f) inserting his finger into her vagina on one occasion. -- 4 of 87 -- 5 2 The accused elected for trial by judge alone. For the reasons which follow, I find the accused guilty in relation to count 1 and not guilty in relation to counts 2, 3, 4 and 5. Background 3 When the trial commenced, the accused was charged on the same Information with his father [BD]. [BD] was charged with an offence contrary to s 65 of the Criminal Law Consolidation Act, namely permitting unlawful sexual intercourse on premises. 4 At the conclusion of the prosecution case, I found that there was insufficient evidence to sustain this charge and accordingly ruled that there was no case to answer. The charge against [BD] was dismissed. Matters not in dispute 5 There were two agreed facts made orally in this trial. Firstly, it was agreed that in her statement of 13 July 2019, [AL] did not name any of the three persons to whom she said she first complained of the accused’s sexual abuse. Secondly, in the case against [BD], it was agreed between the prosecution and defence that [BD] had never previously been convicted of a criminal offence. Given that a no case to answer was found in respect of [BD] this second agreed fact is of no moment. Prosecution case 6 The prosecution case is that the accused sexually abused [AL], [SB] and [ID] during visits that each of the complainants made to the accused’s house. The accused’s parents are [BD] and [SD]. [AL] was the first complainant. [AL] was habitually sexually abused by the accused. On one occasion [BD] entered the room whilst the accused had his head between her legs and did not prevent the accused from performing an act of oral sex on [AL]. On one occasion the accused performed cunnilingus on [SB]. [AL] also witnessed the accused perform oral sex on [SB]. [ID] was the youngest of the three complainants’ and was also routinely sexually abused from a young age.1 Elements of the offence Maintaining an unlawful sexual relationship with a child 7 The offence of maintaining an unlawful sexual relationship with a child has four elements: 1. The accused knowingly maintained a relationship with the complainant during the period in which the particularised unlawful sexual acts occurred; 1 See Annexure A (Exhibit P1). -- 5 of 87 -- 6 2. The accused was an adult during the period in which the particularised unlawful sexual acts occurred; 3. The complainant was a child under the age of 17 years during the period in which the particularised unlawful sexual acts occurred; and 4. The accused intentionally committed two or more of the particularised unlawful sexual acts during the course of the relationship with the complainant. 8 The particularised sexual acts of themselves on the Crown case variously amount to indecent assault (particulars (a), (d) and (e)) in relation to [AL]; (particulars (a), (b) and (e)) in relation to [ID], unlawful sexual intercourse (particular (b)) in relation to [AL]; (particulars (d) and (f)) in relation to [ID] and gross indecency (particulars (c) and (f)) in relation to [AL] and (particular (c)) in relation to [ID]. Indecent assault 1. There must be an assault, a touching would suffice; 2. The assault must be deliberate as opposed to accidental; 3. The assault must be unlawful, there must be no legal excuse for the assault; 4. The assault must be indecent according to contemporary community standards; 5. The assault must be committed by the accused with a sexual purpose or intent; 6. The complainant must be under 17 years of age. 9 Consent is no defence to this charge; a child under 17 years is incapable in law of consenting to sexual activity. Unlawful sexual intercourse The elements of unlawful sexual intercourse, which the prosecution must prove beyond reasonable doubt, are as follows: 1. The accused had sexual intercourse with the complainant. For the purposes of this trial sexual intercourse includes the accused performing an act of cunnilingus upon [AL], [SB] and [ID], the accused causing [ID] to perform an act of fellatio upon him and the accused inserting his fingers into [ID]’s vagina. -- 6 of 87 -- 7 2. The complainant was under 14 years at the time of the intercourse. 10 Again, consent is no defence to this charge; a child is incapable in law of consenting to sexual activity. Gross indecency 11 The offence of gross indecency occurs when an accused commits an act of gross indecency in the presence of a person under 16 years. The elements of gross indecency which the prosecution must prove beyond reasonable doubt are therefore as follows: 1. The accused must commit an act of gross indecency; 2. The act must be in the presence of a person under the age of 16 years; 3. The act must be grossly indecent according to contemporary community standards; and 4. The act must be committed by the accused with a sexual purpose or intent. 12 Consent is no defence to this charge; a child under 16 is incapable in law of consenting to gross indecency. 13 In this case, this allegation relates to the allegations of the accused exposing his penis to [AL] on one occasion and showing [AL] a pornographic magazine on one occasion and causing [ID] to touch his penis on one occasion. Preliminary legal directions 14 Having conducted a trial by judge alone, it is unnecessary to set out the various standard directions that would be given to a jury. Nonetheless, I remind myself of the following principles. 15 The standard of proof is beyond reasonable doubt. The prosecution bears the burden of proof. The accused is presumed to be innocent unless and until the evidence satisfies me that each element of the offence has been proven beyond reasonable doubt. It is not sufficient for the prosecution to show a mere suspicion of guilt or to demonstrate probable guilt. If, after full and careful consideration, I am unable to decide where the truth lies or who is telling the truth, the prosecution will have fallen short of proving the case beyond reasonable doubt and the verdict should be one of not guilty. The accused is not required to prove that he did not commit the offences with which he is charged. 16 A number of the witnesses gave evidence with special arrangements in place. I must not allow the fact of these arrangements to influence the weight that I give to the witnesses’ evidence. I must not draw an adverse inference against the accused as a result of the fact that these arrangements were in place. -- 7 of 87 -- 8 Expert witness 17 In this case, Dr Melanie Takarangi’s report2 and curriculum vitae3 was tendered as agreed between the parties. The opinions expressed must be within the expert’s particular areas of expertise and the opinions must be based on her knowledge, training or experience. I am entitled to accept or reject any opinion evidence however before doing so I must consider the person’s qualifications, whether their opinion is based on a fact I accept, whether the opinion is in dispute and whether it fits with any other evidence that I have heard and accepted on that topic. Election not to give evidence 18 The accused elected not to give evidence at this trial. The accused was not bound to give evidence. The accused has the right to decline to give evidence. Because that is his legal right, I must not draw any inference adverse to him or the case the accused puts forward from the exercise of that right. There may be many reasons the accused did not give evidence, and I must not speculate on those reasons. I bear in mind that it is, at all times, for the prosecution to prove its case beyond reasonable doubt. Complainant [AL] Examination-in-chief Background 19 At the time of giving evidence, [AL] was 33 years of age. The complaint’s mother is [JD]. The complaint’s biological father is [DL].4 The complainant’s mother remarried with [PB]. The complainant’s mother had two other children with [PB] namely, [SB] and [BB]. The complainant’s mother then had two more children with a new partner, [VW]. The complainant’s grandparents on her father’s side are [DFL] and [PL]. The complainant’s grandparents on her mother’s side are [SD] and [BD]. The complainant moved out of her family home and moved to the Gold Coast at 15 years of age. 20 During the complainant’s childhood, [AL] spent time at her mother’s parents’ house from time to time. The complainant would travel via plane from Darwin approximately twice a year during the school holidays. When [AL] resided in Adelaide, the complainant would attend her mother’s parents’ house and would spend the majority of time at this residence. Grandparents’ residence 21 [AL] did not remember sleeping at this address before moving to Darwin. When [AL] visited from Darwin, the complainant would stay the night at the property. There was a mattress in [SD]’s room at the foot of the bed that [AL] slept 2 Exhibit D8. 3 Exhibit D9. 4 T29. -- 8 of 87 -- 9 on.5 [AL] later moved the mattress to the side of the bed furthest away from the door.6 22 The house had two storeys. There was one bedroom downstairs that could be used as a study. There was another two rooms and a bathroom upstairs. [SD] would sleep upstairs in one bedroom. [RD], the complaint’s uncle, would sleep in the other bedroom upstairs opposite to [SD]’s room. The accused slept downstairs and would block off one of the doors so that it transformed into a regular bedroom.7 The accused only permitted one entry point to the room. The doorway closest to the front door was never allowed to be used as an entry. The accused would become angry if this alternate doorway was used.8 The bedroom door nearest to the laundry and the kitchen was the primary entry to the accused’s bedroom.9 The loungeroom was situated on the other side of the accused’s room at the front of the house.10 23 When [AL] attended the address, [AL] would spend time with her grandmother as well as the accused and [RD]. They would play games together.11 [AL] would spend most of her time in the accused’s bedroom playing on gaming consoles with minimal supervision from [JD] for long periods of time.12 This occurred on every visit.13 24 After a period of time, the accused started touching [AL] whilst they were playing games in his room.14 [AL] could not recall the first time this occurred, but it became common for this to occur and it was part of the expectation if [AL] wanted to be in the accused’s room and play games.15 Violence was also perpetrated against [AL]. I find this evidence to be irrelevant and place no weight on it. It has no role to play in determining the issues in this trial. First incident 25 [AL] was approximately 4 years of age at the time of the incident and was yet to attend school. [AL] was in the accused’s room on the bed. [AL] was wearing tights and a pinafore dress.16 The accused pulled [AL]’s tights down and began performing oral sex on the complainant. [BD] walked in the room during this occasion.17 5 T37.35-38. 6 T37.35-38. 7 T38.19-27. 8 T39.10-14. 9 T39.10-14. 10 T39.36-38. 11 T40.28-38. 12 T41.17-20. 13 T41.32. 14 T42.4-15. 15 T42.4-15. 16 T45.3-5. 17 T43.31-36. -- 9 of 87 -- 10 26 [AL] described the accused playing on the gaming console, then as soon as the controller would be passed to [AL], the accused would touch [AL] on the legs and pull the complainant’s pants down.18 [AL] was situated halfway down the bed. The accused was at the end of the bed.19 When the accused was performing the act of oral sex, [AL] was lying on her back and her legs were up.20 The complainant’s leggings and underwear were around her ankles.21 [AL]’s eyes were closed whilst the accused performed the act of oral sex.22 There was a knock at the door by [BD].23 The door was opened after a few seconds after the initial knock.24 [BD] opened the door and stood at the doorway. The accused stood up and moved backwards on the bed. [AL] was in a squat position covering herself with her clothes. [AL]’s bottom was exposed. The complainant made eye contact with [BD].25 [BD] stated, 'I need your help in the yard'. The accused replied 'No. Later. Not now'.26 There was an exchange between the accused and [BD] that lasted approximately 30 seconds.27 The door then closed, and the accused pulled the complainant back onto the bed and recommenced performing oral sex.28 The oral sex only lasted a few minutes before the accused left the room.29 [AL] then visited the bathroom to urinate and attend to herself.30 Second incident 27 The second incident occurred not long after the first incident. [AL] was wearing a school uniform at the time. [AL] was playing video games with the accused after school.31 [AL] was approximately 4 or 5 years of age. After playing the video game, the accused pulled [AL]’s stockings or tights down and started performing oral sex.32 [AL] was lying on the bed. The accused was leaning on the bed with his head between the complainant’s legs.33 The bedroom door was closed. [BD] did not enter the room but merely opened the door.34 [BD] stated, 'I need your help to do something'.35 [AL] squatted on the bed and attempted to hide her exposed bottom.36 The accused replied, ‘Later, not now’.37 [BD] closed the door and then 18 T44.32-34. 19 T45.6-10. 20 T45.36-38. 21 T46.1-4. 22 T46.11-19. 23 T63.9-10. 24 T63.20. 25 T45.28-32. 26 T46.26-29. 27 T46.31-33. 28 T47.1-15. 29 T47.25-26. 30 T48.30. 31 T49.33-36. 32 T50.4-6. 33 T50.7-12. 34 T49.9-23. 35 T51.10. 36 T51.14-15. 37 T51.38. -- 10 of 87 -- 11 re-opened the door quickly and stated 'Well, come on then'.38 The accused and [AL] then left the room at the same time.39 The complainant again attended the bathroom. Third incident 28 The accused performed oral sex on [AL]. The complainant urinated slightly, and the accused told [AL] to attend the bathroom.40 [AL] was on the accused’s bed when the accused was performing oral sex.41 The accused was crouching with his head between [AL]’s legs.42 [AL] could not recall the clothing that she wore on this occasion. When [AL] urinated, the accused immediately stopped and stated, 'Go to the bathroom’.43 [AL] attended the laundry bathroom on the ground floor.44 Fourth incident 29 [AL] was approximately 8 years of age at the time. [AL] was wearing a blue hibiscus dress. It had a white underlay with a blue mesh over the top with dark blue hibiscus flowers.45 [AL] was in the accused’s bedroom lying on the bed. The accused’s face was between [AL]’s legs and was performing oral sex on the complainant. [AL] placed the elastic dress over the accused’s head to hide the accused’s head.46 [AL] felt uncomfortable and asked the accused what it tasted like. The accused grabbed [AL]’s finger and roughly placed it against [AL]’s vagina and then placed the complainant’s finger into her mouth and stated words to the effect of ‘Did it taste nice?’ or ‘How was that?’.47 [AL] replied ‘yes’ and agreed with the accused.48 The accused continued performing oral sex. The accused then requested that the complainant leave. [AL] attended the bathroom to urinate and wipe herself.49 General offending 30 [AL] could not recall how many times the accused performed such acts and described the behaviour as normalised.50 The majority of the incidents occurred when [AL] was aged between 4 to 10 or 11 years of age.51 [AL] agreed that there was a pattern to the accused’s offending. The accused would invite [AL] to his room to play video games. The accused would play the video game for a period of time and then would hand the controller to [AL]. The accused would then pull [AL]’s bottom half of her clothing down and begin performing oral sex. [AL] 38 T52.1-3. 39 T52.1-3. 40 T52.22-30. 41 T53.2-6. 42 T53.9-11. 43 T54.8-11. 44 T54.15. 45 T80.14-17. 46 T81.2-6. 47 T54.20-24; T80. 48 T81.12-17. 49 T81.18-25. 50 T54.33-38. 51 T55.4-5. -- 11 of 87 -- 12 would have her eyes closed at the time.52 The accused kissed [AL] on the thighs and vagina and then would lick the complainant’s vagina.53 [AL] described the oral sex as robotic in which the accused would stick his tongue out in an up-and-down motion in the same tempo and rhythm.54 The complainant stated that after each act occurred, [AL] left the accused’s bedroom and attended the bathroom to urinate and clean herself. The complaint’s grandmother, [SD], was always present at the house. [SD] was either in the kitchen, lounge room or at the washing line.55 Before [AL] moved to Darwin, the accused resided at this premises. When [AL] resided in Darwin, [AL] visited alone from time to time.56 [AL]’s clothing was never fully removed and was only pulled to the side or pulled down.57 31 After an incident occurred, [AL] would attempt to locate her grandmother. [AL] would then see the accused approximately half an hour later.58 The accused would then ask [AL] to play a different video game.59 The complainant was excited that it was a different video game. Consequently, [AL] would attend the accused’s bedroom again.60 This would, in turn, lead to the same pattern of oral sex being performed.61 32 Apart from playing video games in the accused’s bedroom, the accused and the complainant would attend the local video shop to purchase new games to play.62 They would walk to the video shop together or be driven by [BD] to the shop from time to time.63 33 [AL] recalled an incident when playing a specific video game called ‘Lara Croft’ when the accused performed oral sex in the same pattern as previously described.64 Darwin 34 [AL] described the time period when residing in Darwin. [AL]’s stepfather would work periods of time on and periods of time off and was often not at home. [AL]’s mother would remain in bed for most of the day except for the evening to make dinner. [AL] would often wander the streets alone during her adolescence. [AL]’s stepfather would perpetrate violence against the complainant’s mother and was an alcoholic. [AL]’s stepfather also perpetrated violence against her.65 [AL] 52 T55.20-34. 53 T56.5-6. 54 T56.17-19. 55 T57.13-17. 56 T58.23-24. 57 T58.30-31. 58 T65.18-25. 59 T66. 60 T66.1-2. 61 T66.15-20. 62 T67.7-8. 63 T67. 64 T68. 65 T68.24-34. -- 12 of 87 -- 13 compared living in Darwin to when residing at her grandmother’s residence. [AL] noted that playing games with the accused provided an escape.66 The acts of oral sex perpetrated by the accused adversely affected the complainant’s schooling.67 Further attempts 35 [AL] noted that there were no other private rooms at the house where the complainant and the accused spent time together where sexual abuse occurred. The incidents only occurred in the accused’s bedroom.68 [AL] recalled a few occasions where the accused attempted to take [AL] to the bathroom. However, [SD] intervened on each occasion.69 On these occasions, the accused would take [AL] by hand or wrist from the accused’s bedroom to the upstairs bathroom and would lock and close the door. [SD] would then intervene. [SD] would run up the staircase, pound on the door and request that the accused open the door.70 The accused opened the door on these occasions. [AL] was then taken back downstairs. The complainant was approximately between the ages of 4 and 7 when these incidents occurred. The accused would not speak to the complainant about these incidents after they occurred. Fifth incident 36 [AL] was 8 years of age. The incident occurred just after lunchtime. [AL] was playing video games with the accused in the accused’s bedroom. The accused then placed a pornographic magazine in front of the screen. [SD] walked into the room. The magazine depicted a completely naked adult woman. [SD] slapped the accused across the face.71 [SD] stated, 'how dare you'.72 [SD] then repeated this again by slapping the accused and further stating, ‘how dare you’.73 [SD] then directed that the complainant leave the room. The accused’s gaming console was then placed in the loungeroom. However, the gaming console was not operational on this occasion.74 At some point the gaming console was returned to the accused’s room.75 Sixth incident 37 The accused exposed his penis on one occasion to [AL]. This occurred around a similar time to the fifth incident. The accused pulled the elastic band down and showed the complainant his half erect penis.76 The complainant was on 66 T69.1-10. 67 T70. 68 T71.3-8. 69 T71.3-8. 70 T71.14-18. 71 T76. 72 T77.2-3. 73 T77.1-8. 74 T77.14-18. 75 T77.22. 76 T78.8-19. -- 13 of 87 -- 14 the floor at the time. The accused was looking at the complainant and smiling.77 The accused’s bedroom door was closed at the time. Further physical contact – uncharged acts 38 When [AL] was young, [AL] would sit on the accused’s lap in the lounge room. The complainant’s grandmother put a stop to this at some point in time. [AL] used to sit on everyone’s lap when 2 or 3 years of age.78 It was on more than one occasion that [AL]’s grandmother stated to the accused ‘that’s enough’.79 The complainant remembered a particular memory of when sitting on the accused’s lap. The accused was wearing black jeans and there was something in the accused’s pocket. The object was pressing hard against the complainant’s thigh.80 [AL] was approximately 3 years old at this time. [AL]’s bottom was against the accused’s groin. The complainant was facing away from the accused. The complainant was on the accused’s lap for a few minutes.81 The complaint’s grandmother was sitting on another lounge within the loungeroom before intervening. [AL] could not recall if this was the last occasion when sitting on the accused’s lap. Seventh incident 39 [AL] was approximately 11 years of age. The accused approached the complainant from behind and placed his hands on [AL]’s breasts in the loungeroom. [AL] was sitting cross-legged on the floor. The accused said words to the effect of 'Oh, you're getting boobs now'.82 The complainant’s grandmother was potentially in the kitchen. The accused’s hands were underneath [AL]’s top on this occasion.83 Complainant’s stepsister [SB] – count 2 on the Information 40 [AL]’s half-sister is [SB]. [AL]’s half-brother is [BB]. [AL], [SB] and [BB] would attend and spend time with the accused.84 An incident occurred whilst [AL], [SB] and [BB] were in the accused’ room. The complainant was 12 years of age. [SB] was approximately 3 years of age. [SB] was wearing a light green dress. [BB] was playing a video game at the time. [SB] was lying on the accused’s bed. The complainant was sitting on the bed. The accused started kissing [SB] and performed oral sex. The accused was kissing [SB]’s legs and private parts before performing oral sex.85 [BB] turned around and observed the incident. The complainant then left the room to seek help.86 [AL] proceeded to attempt to gain her mother’s attention in the living room. [AL]’s mother, [JD] and [BD] were in 77 T79.2. 78 T84.12-16. 79 T84.17-19. 80 T84.31-33. 81 T85.13. 82 T86.6-12. 83 T86.26. 84 T87.7-12. 85 T88.25-27. 86 T87.30-38. -- 14 of 87 -- 15 the loungeroom. [AL] was whispering to her mother for assistance to come into the accused’s room to observe what the accused was doing.87 [AL]’s mother never moved from the loungeroom or attend the accused’s bedroom.88 [SB] and [BB] then exited the accused’s room a short time after. Post incidents 41 After this occasion, the complainant did not continue to attend the accused’s home on a frequent basis.89 The next time [AL] attended the accused’s home was when the complainant was either 15 or 16 years of age. [AL] slept next to her grandmother and nothing untoward occurred with the accused.90 This was the last contact that [AL] had with the accused. Complaint 42 [AL] disclosed to three girls at school that the complainant had experienced inappropriate touching. The complainant was approximately 10 years of age and in year 5 at the time. [AL] attended Anula Primary School. The conversation took place in the playground during lunchtime.91 A topic of abuse arose during the conversation. Each of the schoolgirls disclosed instances of sexual abuse that they had experienced. The complainant disclosed that ‘my uncle was getting me to go into his room to play video games and then he would basically pull down my pants and give me oral sex’.92 43 The complainant has not had any contact with the three girls in the last 20 years. Complaints to [SB] and [ID] 44 [AL] had not disclosed to either [SB] or [ID] any details of sexual abuse perpetrated by the accused.93 In April 2021, the complainant disclosed to [SB] and [ID] that the accused was a paedophile and had been touching the complainant since the complainant could remember. However, no specific details of the acts were disclosed.94 [ID] never disclosed any details of abuse perpetrated by the accused to [AL]. After [SB] made a statement to police, [SB] disclosed that she had been diagnosed with delayed post-traumatic stress disorder. [AL] questioned [SB] as to this diagnosis. [SB] disclosed an incident that occurred with the accused. 87 T92. 88 T92.17. 89 T92.32-37. 90 T93.6-9. 91 T93.26-38. 92 T94.14-17. 93 T95.1-5. 94 T95. 12-13. -- 15 of 87 -- 16 Cross-examination (Mr English) Background 45 [AL] moved to Darwin with [JD] and [PB] in late 1994 or early 1995. [JD] was pregnant with [AL]’s brother at the time. [AL] was 5 years of age at the time of relocating to Darwin. [AL] gave a detailed description of her parents wedding when she was approximately two years of age.95 [AL] was taken to various photographs in a family photographic album.96 The photos depicted either [AL] alone or with another family member.97 The photographs spanned from when [AL] was an infant to adolescence.98 [AL] received a family photo album when [AL] was detained in a psychiatric ward for adolescence.99 [AL] was detained following an overdose on acne and antidepressant medication.100 The accused was depicted in a number of photographs with the complainant.101 Time spent with [RD] 46 When attending the accused’s home, [AL] spent the majority of time with the accused in the accused’s room playing video games.102 [AL] did not remember [RD] appearing at the doorway when the accused was performing sexual acts. [AL] confirmed that [RD] did not walk into the bedroom when any sexual acts were being performed.103 [AL] also played games in [RD]’s room.104 [AL] gave evidence that as time progressed, [AL] spent less time in [RD]’s room and more time was spent in the accused’s room.105 47 [AL] then remembered a time when [RD] walked in on the accused performing a sexual act.106 [AL] was approximately 4 years of age. [AL] was upstairs in [RD]’s room and the accused was present. [RD] began playing the video game and the accused proceeded to perform oral sex in front of [RD]. [RD] stated, 'You really need to stop doing that'. [AL]’s memory was fuzzy and that was why she failed to raise this occasion previously.107 [AL] disclosed this incident to Detective Bateman but it was not included in any of [AL]’s statements.108 [AL] described an occasion where both [RD] and the accused were tickling the complainant underneath her belly button.109 95 T112. 96 T117. 97 T117.18-22. 98 T117.33-36. 99 T118.13-16. 100 T118.17-20. 101 T121; T122. 102 T123.14-15. 103 T123.25-32. 104 T124. 105 T125.14-20. 106 T125.25. 107 T126.3-7. 108 T126. 109 T126.24-36. -- 16 of 87 -- 17 Alcohol consumption 48 [AL] sent an email to Detective Bateman on Monday 11 October 2021 stating, ‘[AG] was helping me also through alcohol issues’ and ‘during the writing of the statement and mostly afterwards I began drinking alcohol every day to numb the pain that I had suppressed which was rushing to the surface. Now I don't drink alcohol at all and instead I am on antidepressant for the extreme panic attacks I was having known as PTSD trauma time’.110 The complainant sought assistance as she was drinking heavily during this period. [AL] stated that whilst drafting her statement between February and July 2019, the complainant was not drinking every day. It was not until 2020 that [AL]’s drinking increased during COVID.111 [AL] was not drinking at any time when drafting a statement with police.112 [AL]’s drinking would have occurred after writing the statement at the end of the day.113 Psychological history 49 [AL] had a General Practitioner, Dr Vip Patel, who worked at Worongary Medical Centre during 2014-2015. Dr Patel was treating [AL] for potentially post- traumatic stress disorder, nightmares, flashbacks, dissociation, insomnia, mood swings, explosive emotional responses and feelings of abandonment.114 The feelings of abandonment related to being estranged from her family.115 Relationship with [SD] 50 When [AL] attended her grandparents’ property, [AL]’s grandmother was essentially present on every occasion.116 [AL] would sleep in [SD]’s room and [SD] would make dinner and supper.117 The complainant disagreed that [SD] encouraged her to leave the house and not spend the majority of the time in the accused’s bedroom.118 The complainant disagreed that [SD] was a loving grandmother and was instead cold and distant.119 [AL] was taken through various photographs in the family album that depicted the complainant with [SD] and both appeared happy.120 Trips to Adelaide 51 The sequence in which [AL] stayed with both grandparents when visiting Adelaide from Darwin would be first, a week spent with [DFL], then a week with [SD], then returning to [DFL] again for the last week.121 [AL] drew the distinction between the two households, and the complainant’s preference was to reside with 110 T131.6-17. 111 T132.8-11. 112 T132. 113 T132. 114 T135.1-14. 115 T135.18-21. 116 T137.19-20. 117 T137.23-25. 118 T138.15. 119 T140. 120 T141; Exhibit D2. 121 T148. -- 17 of 87 -- 18 [DFL]. [AL] had a stronger relationship with [DFL] as opposed to her other grandmother, [SD]. [AL] never spoke to [DFL] about the accused or playing video games with the accused.122 First incident 52 [AL] recounted the details of the first incident. The first part of [AL]’s clothing that was touched was the leggings, which was underneath the pinafore dress. [AL] was sitting on the bed then repositioned to be lying down on the bed.123 The accused was kneeling on the floor, with the top part of the accused’s body over [AL]. The accused was wearing black jeans. [AL] did not remember the accused stating anything at the time.124 [AL] continued to play the video game, whilst the accused performed cunnilingus. The video game was called ‘skeletons’. The accused’s bedroom was mostly dark. The curtains and both doors were shut. The light from the television lit the room.125 [AL] was able to recall this occasion due to the memory of [BD] entering the room.126 [AL] agreed that when speaking to police, the complainant did not include information in the lead up to this incident.127 The focus of her memory was exclusively related to [BD] entering the room.128 Conversation with [BD] 53 [BD] requested that the accused help him mow the lawn. [BD] opened the door and said words to the effect of 'Come outside and help me mow the lawn'. The accused replied, 'Not now'. [BD] then replied ‘now’ and there was further back and forth.129 When [BD] opened the door, the accused performed a push motion towards [AL] and stood up at the same time.130 The accused did not make physical contact with the complainant at this time. Second incident 54 There were a number of individuals present at the Woodside property on this occasion. People tended to congregate in the loungeroom at the property, which was opposite the accused’s bedroom. [AL] confirmed that the clothing that was worn was depicted in Exhibit D2.131 [AL] did not have a strong recollection of the events leading up to the conduct.132 [AL] could not hear any individuals speaking in the loungeroom when in the accused’s bedroom.133 On this occasion [BD] did 122 T150.4-9. 123 T152.1-2. 124 T154.3-4. 125 T156.18-22. 126 T159. 127 T160.21-28. 128 T160. 129 T163.8-15. 130 T164. 131 T169. 132 T169.34-36. 133 T175.3-6. -- 18 of 87 -- 19 not knock at the door. The complainant did not recall making contact with other people in the house after attending the bathroom.134 Fifth incident 55 [AL] rejected the proposition that this incident did not in fact occur. It was suggested that [AL] was running around the house going through drawers and bedrooms and found a ‘girl magazine’. The complainant disagreed but noted that [SD] had disclosed this version of events previously to the complainant.135 Incident with [SB] 56 [AL] observed the incident of the accused performing cunnilingus on [SB].136 [AL] left the room in a panic and knew the behaviour was inappropriate. [AL] did not tell the accused to stop. [BB] did not tell the accused to stop as well.137 [AL] was approximately 11 or 12 at the time. [BB] was 5 or 6 at the time. [BB] appeared stressed at the time. [AL] left the house to compose herself for a brief period of time. [AL] then re-entered the house to seek assistance from her mother.138 [AL] attempted to whisper to her mother to ‘come into [D, DJ]’s room’. [BB], [SB] and the accused then exited the room a short time later and [JD] stated ‘look, here they are now’.139 [AL] believed that [SD] ‘wanted to keep it under wraps’. Consequently, the complainant did not disclose what had occurred at the time.140 [AL] did not believe [JD] was supportive at the time. Relationship with [SD] 57 [AL] told police that [SD] used to ‘get off’ on getting [AL] and the accused to interact with one another.141 [SD] would permit [AL] to enter the accused’s room and was aware that ‘things were happening’. At the same time [SD] would put preventive measures in place to prevent the accused from sexually abusing [AL]. [AL] assumed that [SD] ‘was getting off over the power dynamic’.142 Photographs in bath 58 There were two photographs tendered that depicted the complainant in a bath surrounded by candles.143 [AL] was approximately 8 years of age at the time of these photographs.144 [SD] took the photographs. [SD] was in the habit of bathing the complainant each night. [AL] was extremely uncomfortable at the time. The 134 T177. 135 T191.1-11. 136 T192. 137 T192. 138 T195.1-10. 139 T195.18-25. 140 T196. 141 T198.25-32. 142 T198.34-38. 143 T200.10-16. 144 T200.21. -- 19 of 87 -- 20 accused was invited by [SD] into the bathroom. Whilst taking photographs, [SD] would direct the complainant to pose in different positions. Statements to police 59 [AL] discussed with police what should be included in her statements. [AL] confirmed that the police did not tell her what to record in her final statement. [AL] wrote to the police in an email that one of the photos that was missing from the photo album, was a photo of [SD] inappropriately touching the complainant’s leg.145 This was not included in the complainant’s final statement to police. 60 [AL] was shown a draft affidavit. This document was shared between the complainant and Detective Bateman via email. The complainant stated in the affidavit, 'My upstairs neighbour was a 9-year-old boy who had diabetes and ADD, he said he'd be my friend if I had sex with him' and 'I was 6 years old and would have said no if I wasn't sexualised already by my uncle and feeling desperately isolated in Darwin away from everyone I knew'. The complainant confirmed that this event was not included in the final affidavit dated 13 July 2019. Medication history 61 [AL] had been using the same brand of antidepressant and antianxiety medication, Effexor.146 Over the last 15 years the complainant used a variety of benzodiazepines to deal with panic attacks.147 [AL] was prescribed antipsychotic medication for a period of slightly longer than two weeks.148 [AL] felt paranoid due to sensing that someone known to her was out to get her as they might have been a demon.149 This episode was reported to Dr Rob Pollard, when the complainant was 23 years of age. [AL] denied ever attending any satanic rituals.150 The complainant denied reporting to medical physicians, psychologists or psychiatrists that her memory was poor.151 [AL] denied that her mother ever performed seances. Relationship with [PB] 62 [AL]’s mother was in a relationship with [PB]. [AL] did not have a good relationship with [PB].152 [PB] used to subject the family to horrific and significant abuse. [PB] used to hit the complainant ‘so hard I would fly across the room’. [PB] used to physically assault the complainant whilst in bed. The witness would enter the room and punch [AL] repeatedly. [AL] witnessed violence perpetrated by [PB] against both [SB] and [BB]. The complainant also observed violence perpetrated against [JD].153 [SD] and [BB] lived with their father, [PB], when they were older. 145 T205. 146 T212.1-16. 147 T213.1-13. 148 T213.16-20. 149 T214.5-8. 150 T214. 151 T215. 152 T216. 153 T217. -- 20 of 87 -- 21 [AL] disclosed to the police that [PB] assaulted her mother as [JD] refused to perform a striptease.154 Exhibit D5 – 25 page bundle of photographs 63 The complainant confirmed the contents of the photographs depicted on each page. [AL] noted that the photograph on page 14 was taken at the time when the complainant observed [SB] getting abused by the accused. This was also the dress that [AL] was wearing during the incident when the accused touched her breast.155 [SB] was depicted in this photo. The photo was taken on Christmas day. [AL] recalled that [SB]’s hair was consistent with her haircut at the time of the incident when [AL] observed the accused performing oral sex on [SB].156 [ID] was depicted in photograph number three. The image on page 12 was taken at a similar time to when the accused performed oral sex on [SB]. Page 18 depicted a photograph with the complainant, [BD] and the accused. Uncharged act 64 [AL] sat on the accused’s lap from time to time. [AL] confirmed that it was normal to sit on other adults’ laps during this period. There was one occasion when the complainant felt a hard object. However, [AL] was too young to know what this was.157 It was put to the complainant that the accused never took the complainant to the bathroom. [AL] denied this. [AL] was unsure how many times the accused took her to the bathroom.158 Charged acts 65 The complainant denied the proposition that the accused never exposed his penis. [AL] denied that there was never an occasion when the accused performed an act of cunnilingus on her.159 The complainant denied that the accused never did anything sexually inappropriate towards her.160 Complaint to [SB] 66 [AL] did not talk in detail about the allegations against the accused to [SB].161 [AL] did not send the draft affidavit or discuss its contents with [SB].162 [AL] obtained [SB]’s email due to being copied into an email from the police that included the email address of [SB]. The email address of [SB]’s was obtained in November 2023. [AL] would talk to [SB] on the internet over chat.163 [AL] was 154 T224.1-4. 155 T226.1-4. 156 T226.22-24. 157 T241.3-7. 158 T241.29-36. 159 T243. 160 T243.8-10. 161 T246.11-12. 162 T246.23-25. 163 T247.10-11. -- 21 of 87 -- 22 embarrassed and did not disclose the offending to [SB].164 It was not [SB] that encouraged [AL] to make contact with the police. Instead, the police contacted [AL] in February 2019.165 [AL]’s first contact with police was either by phone call or email.166 [AL] did not speak to [SB] about the occasion when [AL] observed the accused performing cunnilingus on her.167 [SB] never provided a copy of her statement to [AL]. [AL] denied colluding with [SB].168 Complaint to [ID] 67 [AL] denied speaking to [ID] in respect to the allegations against the accused.169 It was suggested to the complainant that [ID] was not prepared to make allegations against the accused as nothing occurred and that [AL] had knowledge of this denial. [AL] denied knowing this. [AL] was not in contact with [ID].170 Exhibit D6 – Email from [AL] to Detective Bateman dated 24.04.2020 68 [AL] forwarded an email received from [SB] to the police. The email contained a screenshot of a text message from [SB]’s partner, [CM], to [SB]. The message read 'Hey [SB], [ID] is remembering the monster that [D, DJ] is. The memories were triggered by watching the TV show ‘Drawn Together’.171 There was a second message from [SB] in reply, 'Hey, [CM], I'm sorry to hear that [ID] is having these memories triggered. It can be a very difficult thing to go through. Please let her know that I love her too. I just need some time, space away'.172 No detail of any allegation was shared between the complainants. Exhibit D7 – Email from Detective Bateman, dated 26.08.2020 at 2.05 69 [AL] received an email from Detective Bateman, dated 26 August 2020. The email read:173 Hi [AL]/[SB] Many thanks for sending this through. I just want to make sure that I understand the full picture here. [ID] has been watching a TV program called ‘Drawn Together’. As a result of watching this program, she has some memories which have been triggered and relate specifically to [D, DJ]. 164 T247.27-28. 165 T247.31-37. 166 T248.23-26. 167 T249.10. 168 T249. 169 T250. 170 T250. 171 T256. 172 T256. 173 T258.1-26. -- 22 of 87 -- 23 [ID] has spoken to [CM] about this who has messaged [SB], who has responded to [CM] and either she has then forwarded the message to [AL] (or [CM] has forwarded to [AL]) who has then forwarded it to me. If I have got the sequencing correct then here are the concerns that both Ben Ward and I share: [ID] has previously provided us a statement. If she has since been triggered into remembering things then she ought to be approaching us, that is unless she doesn't want to. But potentially having conversations with [SB] and/or [AL] (if that's what is occurring) is going to put her under a lot of scrutiny. Defence will suggest that she has ‘memories’ she’s adopted from both [SB] and/or [AL]. This has the potential to put all three of you under the pump in the event of a trial. Based on how the information has come to our attention, it is not appropriate for us to make the approach to [ID] as we don't know whether she has confided in confidence. I would suggest that contact be made with [CM]/[ID] by either yourself [AL] or through [SB] as you both have our contact details and if [ID] wishes to pursue this she can reach out to us and we will revisit her statement with her and record any disclosures she wishes to make. We will not be contacting [ID] or [CM] directly as she may not have wanted him to share that personal information with Police. That being said, if [ID] wishes to come forward and make a report to Police then we will support her completely throughout the process. I have cc’d Ben WARD into this email response so that the email addresses for both of us are readily available for onward transmission to [ID] for her to consider how she would like to proceed. Please don't think that we don't care about any of you in relation to this matter, it is because we care that we have to ensure that this is dealt with correctly. If you have any questions then please do not hesitate to make contact. Kind regards Zoe. 70 Following the receipt of this email it was suggested that this was an invitation for [AL] to contact [ID]. [AL] denied this assertion.174 [AL] did not believe that Detective Bateman provided an invitation for [AL] to speak to [ID] within the email.175 Eventually, [AL] learnt that [ID] amended her statement and made allegations against the accused.176 Cross-examination (Mr Kane) 71 [AL] confirmed that the first occasion occurred before the complainant attended school. The second incident occurred once the complainant commenced 174 T258.35. 175 T259.3-7. 176 T259.16-20. -- 23 of 87 -- 24 schooling on a school day.177 [AL]’s memory of the events was ‘fuzzy and all blur together’.178 First incident 72 The accused heard a knock at the door and immediately moved away from the complainant.179 When [BD] entered the room, there was no sexual act being performed by the accused. Second incident 73 [AL] confirmed there was a possibility of a large amount of people in the house at the time. However, [AL] primarily remembered [BD] opening the door. [BD] did not enter the room. [AL]’s memory was not as strong regarding the second incident in terms of the clothing that was worn at the time.180 [AL] disagreed that there had never been an occasion when [BD] was present when the complainant was dressed in an inappropriate manner.181 Re-examination 74 [AL] was admitted to a psychiatric hospital at 15 years of age. One of the contributing factors was due to the abuse perpetrated by [PB]. Further, the childhood trauma, domestic violence and incidents with the accused contributed to the complainant’s admission to the psychiatric hospital.182 [AL]’s psychiatric and psychological issues were always present but grew stronger at ages 11 to 15 when it reached a tipping point.183 75 [AL] did not speak to [DFL] regarding the offending perpetrated by the accused. [AL] attempted to disclose the domestic violence perpetrated by [PB] to [DFL], but she ignored this. Thus, the complainant did not disclose the incidents with the accused.184 [DFL] Examination in-chief Background 76 [DFL] is [AL]’s grandmother. The witness’s son is [DL]. [DL] is married to [JD]. [AL] was the flower girl at the wedding. From when [AL] was a baby, [DFL] used to see [AL] at least every week. [AL] lived in Prospect with her parents. [DL] and [JD] separated when [AL] was approximately 3 years of age.185 [AL] moved 177 T261.5-14. 178 T263.7-9. 179 T265. 180 T267.1-8. 181 T268.35-38. 182 T270. 3-8. 183 T270.23-26. 184 T273. 185 T281. -- 24 of 87 -- 25 to Darwin with [JD] at some stage after the separation. [DFL] continued to see [AL]. [AL] flew back to Adelaide to stay with [DFL] from time to time. [AL] was approximately 7 years of age during this time. [AL] would visit during school holidays and Christmas holidays.186 [AL] would spend time with both her grandparents when visiting Adelaide.187 [DFL] collected [AL] from the Woodside property on occasion. [DFL] would pay for [AL]’s airfares when the complainant resided in Darwin. There was an occasion when [AL] travelled back to Adelaide via car and another time via bus.188 Relationship with [AL] 77 [DFL] always maintained a strong relationship with [AL].189 When [AL] stayed with [DFL] in Adelaide they would go shopping, attend the movies or the park.190 [DFL] described [AL] as a bit shy, but enjoyed drawing and dressing up when visiting.191 Cross-examination (Mr English) Background 78 [DFL] gave a statement dated 23 January 2020 to police and spoke to Detective Ward. Upon reviewing the statement, the witness believed that [AL] was 12 months old at the time of [DL] and [JD]’s wedding.192 [DFL] was taken through various photographs of the wedding and confirmed their contents. [DFL] confirmed that in one of the photographs, [AL] appeared approximately only 4 weeks old. However, this was not at the weeding.193 [AL]’s trips to Adelaide 79 [DFL] paid for [AL]’s flights through Qantas on approximately three to four occasions.194 [AL] was approximately 7 years of age when the complainant started flying from Darwin to Adelaide. However, [DFL] accepted that [AL] could have been younger.195 [DFL] confirmed in cross-examination that [AL]’s time was split between the two grandparents when [AL] visited.196 [DFL] would also take [AL] to the airport and collect the complainant from the airport.197 [DFL] ceased paying airfares for [AL] when the complainant was approximately 9 years of age. 186 T282. 187 T282.32-34. 188 T284.1-2. 189 T284.28. 190 T285.3-6. 191 T285.10-12. 192 T287. 193 T288; Exhibit D2. 194 T290.1-2. 195 T290.20-24. 196 T291. 197 T293.32-38. -- 25 of 87 -- 26 [DFL] relationship with [SD] 80 [DFL] had a sound relationship with [AL]’s other grandmother, [SD]. [DFL] did not visit [SD]’s house and vice versa, but would see each other when they visited [JD] and [DL]’s home.198 [DFL] liaised with [SD] in respect of arrangements for [AL] attending each other’s house when [AL] was in Adelaide, albeit not relatively detailed discussions.199 [DFL] gave evidence that [AL] looked forward to visiting [SD].200 When [AL] returned from [SD] and [BD]’s house, [AL] did not appear different.201 [BB] Examination-in-chief Background 81 At the time of giving evidence [BB] was 27 years of age. [BB]’s parents were [JD] and [PB]. [BB]’s elder stepsister is [AL]. [AL] was approximately 6 years of age when [BB] was born. [SB] is [BB]’s younger sister. [BB] relocated to Adelaide in approximately 2000, when the witness was 6 to 8 years of age. [BB]’s grandparents are [SD] and [BD]. The accused is [BB]’s uncle. Woodside property 82 [BB] retained fond memories of visiting the Woodside property. [BB] described [SD] as an ‘awesome pommy lady’. [BB] described [BD] as a great grandpa. [BB] stated, ‘I even thought [the accused] was awesome until I found out all this stuff, yeah’.202 [BB] used to love visiting the Woodside property every Christmas. [BB]’s earliest memory of attending the property was in 2000, when in year one at school. [BB] used to visit the Woodside property every Christmas.203 [BB] would attend the Woodside property every Christmas when residing in Cairns.204 The accused was present when [BB] would visit the Woodside property.205 [BB] did not visit the property alone until later when the witness was approximately 14 or 15 years of age.206 [BB] noted that [AL] did not visit the Woodside property regularly.207 [BB] would play video games with the accused in the accused’s bedroom.208 [AL] and [SB] were also in the room playing video games with the accused from time to time.209 [BB] was sitting on the bed next to 198 T292.18-19. 199 T293. 200 T293.16-18. 201 T294.14-15. 202 T296.38; T297.1. 203 T297.8-9. 204 T297.12-15. 205 T297.19-22. 206 T297.28-33. 207 T298.6-10. 208 T298.28-32. 209 T298.33-36. -- 26 of 87 -- 27 the accused when playing video games.210 [BB] did not observe any inappropriate conduct occurring in the accused’s bedroom.211 Cross-examination (Mr English) 83 [BB] loved attending the Woodside property and had great memories. As a child, [BB] thought the accused was ‘one of the most awesome people ever’.212 [BB] viewed the accused as a hero. [JD] Examination-in-chief Background 84 [JD] was born on 5 August 1969. [JD] has five children. [AL] is the eldest child. [AL]’s father was [DL]. [JD] had two children with [PB], namely [BB] and [PB]. [JD]’s parents were [BD] and [SD]. [BD] was [JD]’s stepfather. [JD]’s family moved from England to Australia when the witness was 12 years of age.213 The witnesses’ siblings that resided in Australia were [MD], [RD] and the accused.214 [JD] was closest to [MD]. [JD] stated that [AL] was 2 years of age when the witness married [DL].215 [AL] did not play a role in the wedding. [AL] was the flower girl in [JD]’s wedding with [PB]. After [AL] was born, [JD] used to attend the Woodside property with [AL] once a week. 216 [AL] was approximately 2 or 3 years of age when [JD] separated with [DL].217 Woodside property 85 When [AL] and [JD] attended the Woodside property, [AL] would watch TV, play games, and also go into the accused’s room. 218 The witness confirmed the accused’s room was downstairs and there were two doorways to access the bedroom.219 The doorway that opened to the kitchen was the doorway that was commonly utilised.220 There was a toilet and laundry downstairs and two bedrooms and a bathroom upstairs. 221 [JD] believed that [AL] made three to four trips from Darwin to Adelaide. [AL] was alone during these trips.222 86 All three children visited the Woodside property when they resided in Adelaide. This occurred approximately once a week. Each time the visit lasted 210 T299.9-12. 211 T299.17-20. 212 T300.6-12. 213 T301. 214 T302.19-21. 215 T303.2-14. 216 T303.28-30. 217 T304. 218 T304.29-34. 219 T305.1-12. 220 T305.16-24. 221 T305.26-29. 222 T307. -- 27 of 87 -- 28 about three hours. [BD] was a welder and would work 7.00 am to 5.00 pm on weekdays. The accused did not work at the time. [SD] was a nurse’s assistant. The Woodside property was kept in a clean and tidy state. [SD] was always cooking and cleaning.223 Highbury property 87 [JD] lived in a house in Highbury with [AL], [BB] and [SB] when they returned to Adelaide from Darwin. 224 The accused visited this property and stayed overnight. [JD] slept in the bedroom with the three children.225 The accused slept on the lounge. The accused slept at the house on approximately three or four separate occasions.226 On an occasion the accused entered the witness’s bedroom and attempted to wake up [AL]. [JD] stated, 'Get out', 'Leave her alone, get out'.227 The accused entered the bedroom sometime around midnight to 3:00am. There was a hall light on at the time. [JD] observed the accused bending down and touching [AL]. [AL] was on a floor mattress. [JD] heard the accused say '[AL]'.228 The accused shook [AL]’s shoulder.229 [JD] stated to the accused, 'What are you doing? Leave her alone'.230 [AL] was approximately 8 or 9 years of age when this incident occurred. The accused did not attend this residence again. Observations of [AL] and the accused 88 [JD] observed [AL] in the accused’s room whilst the accused was present.231 [JD] witnessed [AL] and the accused in the bathroom upstairs on one occasion.232 [JD] was downstairs at the time and heard [SD] yell ‘Where’s [AL], where’s [the accused]?’. [JD] walked to the bathroom. [SD] was at the bathroom door and requested that [AL] and the accused ‘get out’. [SD] was banging on the bathroom door. The witness yelled out ‘What are you doing?’ and ‘Open the door, open the door'. The door was opened but it took some time. The accused never responded. When the door opened, [AL] returned back downstairs to the loungeroom with the witness and [SD]. Both [BB] and [SB] were not present on this occasion. 89 The accused had possession of a number of games, both physical and digital video games that were in the accused’s room.233 [JD] only saw [AL] playing in the accused’s room. 223 T316; T317. 224 T312.16.23. 225 T312. 226 T313.12-14. 227 T313.27-28. 228 T314.2-11. 229 T314. 230 T314.30. 231 T309.8-10. 232 T309.20-27. 233 T311.20-23. -- 28 of 87 -- 29 90 [JD] did not see any inappropriate conduct or contact between the accused and [AL] or [BB]. [JD] recalled an occasion when the accused had [SB] on his knee. 234 [AL]’s hospitalisation 91 [AL] was admitted to hospital at approximately the age of 15 due to a suicide attempt.235 [JD] provided [AL] a photo album whilst in hospital. Cross-examination (Mr English) Bathroom incident 92 [AL] was approximately aged between 4 and 6 years of age. The witness could not recall what [AL] was wearing on this occasion. [JD] did not know what haircut [AL] had at the time.236 [JD] was unsure if [RD] was present. [JD] did not know if it occurred on a weekday or weekend. [JD] was living in Newton at the time of this incident.237 The witness rejected the proposition that the incident never occurred.238 Highbury incident 93 The incident that took place at the Highbury address occurred after the bathroom incident. [JD] was concerned about the prior incident in the bathroom, so slept with the children. [JD] was scared at the Highbury address. Consequently, the witness invited the accused to stay over. [JD] believed that there may have been spirits moving around the house that were setting alarms off.239 [DFL] provided the furniture for the Highbury residence. It was [DLF]’s deceased mother’s furniture. This caused the witness to be further scared and fearful of the furniture. [JD] rejected the proposition that this incident did not in fact occur. 240 [PB] Examination-in-chief Background 94 [PB] was born in 1968. [PB] was in a relationship with [JD] for a period of time. In the course of the relationship, they had two children, [SB] and [BB]. They lived in Darwin. [AL] resided in Darwin as well. [AL] was 5 years of age when the family moved to Darwin. The relationship between the witness and [JD] broke down in 2000. [JD] left Darwin with the three children and returned to Adelaide. [JD] and the children then moved to Cairns. [PB] continued seeing the children during holidays. [PB] returned to live in the Riverland, South Australia. Both [SB] 234 T317.25-29. 235 T317.30-33. 236 T318.7-25. 237 T319. 238 T322. 239 T323. 240 T324. -- 29 of 87 -- 30 and [BB] lived with [PB] in the Riverland in approximately 2012. [BB] first relocated before [SB].241 [SB] was approximately 14 and [BB] was 17 years of age at the time of relocating to the Riverland. Woodside property 95 [PB] attended the Woodside property frequently. When [PB] lived in Darwin they would visit during Christmas Holidays and stay at the property. [AL] would also attend the Woodside property alone when they lived in Darwin. The witness recalled the layout of the property. When [PB] visited during Christmas they would stay in the loungeroom downstairs.242 [PB] confirmed that the accused lived at the Woodside property. [PB] believed that the accused lived in both a bedroom on the ground floor and then a bedroom on the first floor at differing points in time.243 [PB]’s children spent time with the accused in the accused’s room.244 The witness observed the children play video games when they were in the accused’s bedroom.245 [PB] observed [AL], [BB] and [SB] all in the accused’s room on certain occasions. Christmas holidays incident 96 [PB] observed an incident that occurred when [AL] was in the accused’s room. [AL] was approximately 6 years of age. The incident occurred over the Christmas holidays. [PB] went to the bathroom upstairs and the accused was staying in the bedroom next to the bathroom. The bedroom door was shut. The witness opened the door. [AL] was sitting on the edge of the mattress on the floor playing a video game. The accused was lying on the bed. This was the same bed that [AL] was sitting on. The accused quickly pulled the covers over himself when [PB] opened the door. [PB] stated 'How are you going? Everything all right?'.246 [AL] turned around and looked back behind. The accused was behind [AL]. The accused’s hip was touching [AL]’s backside.247 Once the accused pulled the covers up, [PB] could only see from the accused’s shoulder to head. [PB] then left the room. Cross-examination (Mr English) 97 [PB] stayed in the bedroom on the ground floor of the Woodside household when they visited over Christmas.248 [PB] understood that the accused moved from his usual bedroom and instead resided in [RD]’s room on this occasion.249 [PB] believed that [RD] was present on this occasion.250 The witness confirmed there 241 T326. 242 T328.28-30. 243 T329.6-8. 244 T329.9-11. 245 T329.19-21. 246 T331.1-9. 247 T332.1-10. 248 T334. 249 T335.11-13. 250 T335.14-16. -- 30 of 87 -- 31 were only three bedrooms in the house. The accused usually occupied the room on the first level.251 [PB] confirmed that on this occasion, there was both a mattress on the floor and a bed in the bedroom upstairs ([RD]’s bedroom).252 [PB] could not recall the time that the incident occurred but believed it to be the morning. There was only one bathroom upstairs. [PB] agreed that it was a busy household at the time. The witness rejected the proposition that the accused never pulled the blankets up.253 [AL] was fully clothed at the time. [PB] thought that what was observed was ‘a bit unusual’.254 However, the witness did not raise this concern with the accused ‘Because you give the benefit of the doubt at the time that it wasn't unusual’.255 [PB] disclosed what occurred to [JD] at some point later in time. The witness told police 'This is the only thing I ever saw or witnessed and had thought nothing more of it'.256 [PB] further told police 'I've told [SB] that I saw something with [AL] and the accused and that I now believe the accusations'.257 98 Given the suggested reason for [PB]’s change in his assessment of this incident, namely the surfacing of the allegations against the accused, I do not give this evidence any weight. It is clear that [PB]’s perception has been influenced by subsequent events. 99 The witness also disclosed to police that there was an occasion in which the witness heard a rumour within the family that [AL] had been interfered with by the accused.258 As a result of this information, [PB] spoke to [SB] regarding this information. [PB] did not agree with the proposition that [PB] reconstructed the scenario provided to assist [SB]. Domestic violence 100 [PB] denied assaulting [JD] when they resided in Darwin. [PB] denied ever assaulting [AL].259 The witness denied ever assaulting [BB] or [SB].260 Complainant [ID] Examination-in-chief Background 101 [ID] was 24 years of age. The witnesses’ parents were [CS] and [MD] who have since separated. [ID]’s grandparents on her father’s side of the family were [SD] and [BD]. The witness’s uncles were [RD] and the accused. The witness’s aunty is [JD]. [ID] grew up in Adelaide. The witness attended the Woodside 251 T335.21-28. 252 T336.23-25. 253 T338. 254 T339.1. 255 T339.3-4. 256 T340.16-20. 257 T340.25-28. 258 T340.29-33. 259 T343.14-22. 260 T343.29-33. -- 31 of 87 -- 32 property on a regular basis. [SB] and [BB] would be at the house, when [ID] visited. [BB] and [SB] are [ID]’s cousins. The accused lived at the residence for the majority of the time that [ID] would visit.261 The accused moved out of the Woodside property at some point with [RD].262 [ID] would see [BB] and [SB] approximately once per year after they moved to Queensland.263 [ID] stayed the night at the Woodside property regularly.264 [ID] would also visit for a few hours at a time for events such as barbecues.265 [ID] slept over at the Woodside property by herself before her sister [MD] was born. [ID] would play video games with the accused.266 The accused would bring the video game console to the loungeroom and plug it into the TV.267 [ID] noted that the accused’s room varied between level 1 and level 2 of the house. 268 There were occasions when [ID] would attend the accused’s home, and the accused was not present. 102 The accused would assist [ID] in learning how to play video games. [ID] would sit on the accused’s lap and direct [ID] as to the controls of the game.269 Relationship with [SB] 103 [ID] considered [SB] her best friend growing up and when visiting the Woodside property.270 [ID] and [SB] would play games together at the accused’s house. [ID] was approximately 5 years of age when [SB] relocated to Darwin. [ID] observed [SB] with the accused. TV show incident 104 [ID] would watch the television program ‘Drawn Together’ with the accused.271 [ID] was approximately 7 to 9 years of age. [ID] watched the program downstairs in the accused’s bedroom. [ID] and the accused both sat in the centre of the bed with their backs against the back of the bed.272 The lighting in the room was dark and the TV light was the only light in the room. [ID] believed [SD] was also present but could not be certain.273 The accused ‘fondled [ID]’s private area, played with, touched, fingered through [ID]’s clothes and attempted to get through [ID]’s clothing’.274 By ‘private area’, [ID] referred to her vagina. [ID] was clothed at the time. The accused was also clothed. The accused rubbed his fingers against [ID]’s clitoris and attempted to insert his fingers into the complainant’s vagina. 261 T347. 262 T348.1-2. 263 T348.36-38. 264 T349.6-7. 265 T349.13-15. 266 T349.37-38. 267 T350.21-23. 268 T351.1-4. 269 T352.8-12. 270 T353.6-8. 271 T354.1-3. 272 T355.2-3. 273 T355.9-10. 274 T356.10-12. -- 32 of 87 -- 33 [ID] did not know how long this incident lasted. [ID] did not say anything to the accused. The accused did not say anything to [ID].275 Video game incident 105 An incident occurred when [ID] was playing the video game ‘Donkey Kong’. The complainant was approximately 3 or 4 years of age. The complainant was in the loungeroom. [SD] may have been home. No one else was present in the house. [ID] was sat on the accused’s lap. [ID] was playing the video game. [ID] felt something hard poking against the complainant’s lower back region. The complainant was clothed at the time. [ID] was wearing a dress and had underwear on.276 The accused was wearing shorts and a t-shirt. [ID] did not recall seeing the hard object. The complainant described the feeling as an erection poking against her.277 The complainant believed this type of incident occurred on two occasions. 106 In respect to the second similar incident, the complainant was wearing a t- shirt and shorts. [ID] was approximately the same age. The incident again occurred whilst the complainant was playing a video game in the loungeroom with the accused. The complainant felt the same hard object poking against her lower back region. The complainant did not remember how either incident ended. First incident with [SB] 107 [ID] did not know her age when this incident occurred but recalled that she was old enough to attend the bathroom alone.278 The complainant observed [SB] and the accused in the accused’s’ room downstairs. The accused was on the bed and [SB] was standing in front of the accused.279 The complainant believed that [SD] was also present in the house. [ID] observed [SB] performing an act of fellatio on the accused. The complainant was walking to the toilet at the relevant time. [ID] did not interact with [SB] or the accused when this incident occurred. The accused wore a t-shirt and shorts, which were slightly pulled down.280 [SB] was clothed. The accused had his hand on the top of [SB]’s head. [SB]’s head was moving in an up and down motion. [ID] then attended the bathroom. Second incident with [SB] 108 The complainant was approximately the same age as when the first incident occurred. Both [SB], the accused and potentially [SD] were present in the house at the time. [ID] and [SB] performed oral sex on the accused on this occasion. [ID] and [SB] were in the accused’s bedroom downstairs.281 They both entered the accused’s room. The accused exposed his penis and was sitting on the bed. The accused was wearing a t-shirt and shorts that were slightly pulled down. Both [ID] 275 T356.32-38. 276 T358.1-17. 277 T358.22-24. 278 T360.24-26. 279 T360.33-34. 280 T362.1-2. 281 T363.9-15. -- 33 of 87 -- 34 and [SB] were clothed. The accused placed his hand on both [ID]’s and [SB]’s head when they performed oral sex on the accused. The accused’s penis was moved back and forth into both [ID]’s and [SB]’s mouths. The complainant did not know how long this conduct occurred for. Third incident 109 The complainant attended the Woodside property and recalled being hungry. [ID] was approximately 3 years of age.282 [ID] was watching the television program ‘King of the Hill’ with the accused. The complainant did not believe any other individuals were in the house at the time. [ID] felt hungry and started to cry. The complainant requested something to eat. The accused then took the complainant by hand into the kitchen, exposed his penis and ejaculated in the complainant’s mouth.283 The complainant could not recall what the accused did between putting his penis into the complainant’s mouth and ejaculating.284 The accused’s penis was erect. The complainant did not recall what occurred after the accused ejaculated besides ‘gagging’ at the time.285 Fourth incident 110 The accused collected the complainant from the complainant’s mother’s house. [ID] was approximately 7 years of age. Prior to being collected by the accused, [ID] had attended school. The accused collected the complainant in his car and drove [ID] to the Woodside property. The complainant sat in the passenger seat next to the accused.286 It was approximately a 45 minute drive between the two houses. The accused placed his hand on the complainant’s leg then slowly moved it towards the complainant’s genitals before then placing his hand into the complainant’s underwear.287 The complainant was wearing underwear and pants. The accused touched the complainant’s thigh with his left hand. The accused placed his hand under the top of [ID]’s underwear and put a finger inside the complainant’s vagina.288 The accused brought the complainant a present after the incident. Complainants [SB] & [AL] 111 [ID] was aware that [SB] made allegations of improper behaviour against the accused.289 The complainant learnt this information at 12 years of age. [SB] did not disclose any detail of the allegations. [ID] learnt that [AL] made allegations of impropriety against the accused.290 The complainant was again 12 years of age. [ID] did not learn any specific details of the allegations in respect of [AL] and the 282 T368. 283 T369.12-14. 284 T370.13-15. 285 T370.28-29. 286 T371. 287 T372.5-7. 288 T373. 289 T374.3-7. 290 T374.17-20. -- 34 of 87 -- 35 accused.291 [ID] had one conversation with [SB] regarding the incident that involved both complainants. [ID] had never spoken to [AL] regarding any detail of inappropriate behaviour perpetrated by the accused. [ID] had never said words to the effect of 'Uncle [D, DJ] did inappropriate things to me' to [AL]. Cross-examination (Mr English) Relationship with family members 112 [ID] shared a close relationship with [SB] and were inseparable as children.292 [ID] did not have a strong relationship with [AL]. Since becoming an adult, the complainant still did not maintain a strong relationship with [AL].293 [ID] blocked [AL] on Facebook due to differing views in respect of COVID. 294 They did not exchange any phone calls or messages. They met in person on one occasion in 2021 at [JD]’s house for dinner. There was no discussion at this dinner regarding the allegations against the accused. [SB] was also called over the phone on this occasion for a brief time. Communication with [SB] 113 Prior to the dinner, [ID] would still contact [SB] regularly and each would provide updates regarding their respective lives.295 [SB] relocated to the Netherlands in 2018. The complainant’s predominately communicated via Instagram Messenger. February 2019 statement 114 The complainant provided two statements to police. The first statement was an affidavit dated 22 February 2019. In this statement the complainant told police that she had no memory of the accused ever engaging in any inappropriate behaviour.296 [ID] reported to police that she never witnessed the accused do anything inappropriate with any other child.297 The complainant told police, that if anything was observed, the complainant was too young to remember.298 The complainant told police that she never saw the accused as the accused was always in his room.299 [ID] told police that she did not have much to do with the accused and only saw the accused at family events.300 The complainant disclosed to police that she did not remember the accused being alone with any of her cousins, including [SB]. [ID] recalled playing ‘Donkey Kong’ with the accused. The complainant told police that she did not remember having contact with the accused when playing the game. The complainant had no memory of playing any other sort 291 T374.35-37. 292 T376.6-8. 293 T376.17-28. 294 T376.30-34. 295 T380.9-13. 296 T382.19-22. 297 T382.23-25. 298 T382.26-28. 299 T382.29-32 300 T382.33-38. -- 35 of 87 -- 36 of game. The complainant told police at this time that she had no independent memory from this period of her life.301 115 [ID] disclosed to police that [SB] messaged her on Facebook.302 [SB] had messaged to discuss a serious matter immediately. [ID] and [SB] then had a phone conversation. [ID] did not recall what was discussed during this phone call. [ID] confirmed that her father informed her that the accused had been arrested for sexual offences that involved [SB] in 2019. [ID] did not speak to [SB] after this information was revealed in respect to the complaint. February 2021 statement 116 [ID] provided a subsequent statement to police in February 2021. The statement contained numerous episodes of sexual abuse perpetrated by the accused against the complainant. The allegations involve not only [ID] but also [SB]. [ID] agreed this was in complete antithesis to the previous statement in February 2019.303 The inconsistencies between the versions given were accepted. The complainant denied being in regular contact with both [AL] and [SB] during the period of the first statement in February 2019 and the second statement in February 2021.304 [ID] denied that [SB] and [AL] applied pressure to alter her position in the original statement.305 In the February 2019 affidavit, the complainant disclosed to police that she was never alone with the accused in circumstances where the complainant’s father was not present.306 Recollection of incidents 117 [ID] first recalled the offending in April 2022, at the beginning of the complainant’s pregnancy.307 Up until this time, the complainant had no memories, but recalled several times questioning whether the incidents occurred.308 The reason why the complainant was able to recall the events was because the memories were triggered by certain subsequent events.309 The reason why the complainant could not recall the incidents was due to the complainant’s now recalled memories that were repressed.310 [ID] explained ‘in order for my brain to protect itself, it locks those memories away so that I could not access them until I was in a safe enough environment to do so’.311 118 The first trigger event of the memories being reimagined was when the complainant was eating dinner with [CM] and was watching a TV show called 301 T383. 302 T384.20-22. 303 T387.1. 304 T392. 305 T393.1-6. 306 T398.32-37. 307 T394.4-9. 308 T394.17-21. 309 T394.22-26. 310 T394.27-30. 311 T394.31-35. -- 36 of 87 -- 37 ‘Archer’. One of the characters from the TV program appeared to resemble another character. [CM] questioned if the complainant meant a character from the TV program ‘Drawn Together’.312 They then searched ‘Drawn Together’ on YouTube.313 This then triggered the memory of the incident when the complainant was in the accused’s bedroom watching ‘Drawn Together’.314 The complainant then had glimpses of this specific incident but could never place exactly what occurred until observing the clip on YouTube.315 119 The complainant did not disclose the resurfaced memories to any individuals present in the room at the time. [ID] disclosed to police that her partner was alert to the fact that the complainant was distressed at this time. The complainant’s partner then suggested viewing further videos in order to see if additional memories could be resurfaced. The complainant watched two or three more episodes of ‘Drawn Together’ but no other memories of a sexual nature resurfaced.316 The further episodes were not viewed on the same night. The next day the complainant disclosed a brief account of the triggered memory to [CM]. The witness disclosed that the resurfaced memory related to the accused and was sexual in nature. 120 [ID] described a further memory that resurfaced whilst playing the video game ‘Donkey Kong’.317 The memory that resurfaced was when the complainant was playing ‘Donkey Kong’ with the accused and the accused had an erection that was poking into the complainant’s bottom.318 The recovered memory allowed the complainant to recall how old she was at the relevant time. [ID] confirmed she was 4 years of age. The complainant was sitting in the accused’s lap in the loungeroom. The complainant confirmed she felt something hard. [ID] denied that it could have been another video controller. The complainant confirmed that there were two instances when this incident occurred and both memories resurfaced.319 The occasions are distinguished by the first occasion where the complainant wore a pink dress and the second occasion when the complainant wore a t-shirt. 121 [ID] recalled another occasion when her memory resurfaced regarding an incident when the accused ejaculated into the complainant’s mouth. The complainant attempted to be intimate with [CM]. This incident occurred in approximately August 2020 and at the time of the incident [ID] was 2 years of age and had not been toilet trained. [ID] did not remember the exact words that she spoke to the accused, but it was words to the effect of 'I'm hungry, I haven't had lunch'. It was put to the complainant that she told police 'He placed one hand on my shoulder and guided me through the kitchen and into his bedroom'. The 312 T395. 313 T396.8-11. 314 T396.37-38. 315 T397.13-17. 316 T400. 317 T416. 318 T416. 319 T419. -- 37 of 87 -- 38 complainant believed that the accused continued to hold her hand and lead the complainant to the bedroom.320 The complainant recorded in her statement that she wore a red top and grey pants with sparkles and no shoes. However, the complainant gave evidence that she could not recall what she wore.321 The complainant told police that the accused’s bed was unmade, had a white blanket and was bunched up in the corner.322 122 The complainant recovered a further memory of the incident involving [SB] and the accused in August or September 2020. 123 The complainant first made the report of the recovered memories and allegations regarding the accused to police on 22 January 2021 at the Sturt Police Station. The complainant denied the proposition that the accused never committed any acts of sexual abuse. [ID] denied the proposition that the repressed memories were nothing more than false memories. The complainant denied the suggestion that the memories had been brought on as a result of [SB] and [AL] placing pressure on [ID] to alter her original position.323 Facebook message to [SB] 124 [ID] contacted [SB] on Facebook Messenger on 21 April 2020.324 [ID] believed that the message related to [ID] disclosing to [SB] that the TV program triggered a memory. The police requested these messages from the complainant.325 [ID] disclosed to [SB] that the police had requested the Facebook Messenger communications.326 The Facebook messages from 21 April 2020 was shown to the complainant. [ID] confirmed that this was the extent of the conversations that occurred with [SB] on 21 April 2020.327 There was a suggestion in the text messages that a further phone call was requested by [SB]. [ID] confirmed that this phone call did not occur. [ID] sent a message to [SB] 'I don't know, I just remember watching it with [D, DJ]’ and 'But I have no other memories related to it'. [ID] further stated, 'I have no other memories related to it and after watching a few clips I am concerned'.328 [ID] admitted to lying to [SB] in respect to the extent of the triggered memories during these messages. The complainant was not ready to discuss the resurfaced memories at the time.329 During the messages, [SB] further wrote 'Major gaps in memories isn't normal. Actually I think it's absolutely a sign of abuse. Have you spoken to a therapist about it?'.330 [SB] then stated, 'Yeah sure 320 T430. 321 T430. 322 T431.2-9. 323 T434.17022. 324 Exhibit D8. 325 T401; T402. 326 T402.30032. 327 T405.11-15. 328 T407.25-31. 329 T408.34-38. 330 T410.7-12. -- 38 of 87 -- 39 we can talk on the phone' and then sent an article titled 'Thoughts that could mean that you're repressing childhood memories'.331 125 Following the report made to police in 2021, [ID] later exchanged Instagram messages with [SB]. The message read, 'trigger warning, dealing with you know what'. This was in reference to sexual trauma.332 Therapy 126 [ID] spoke to a therapist in respect to repressed and recovered memories. 333 The complainant only received talk therapy and not memory recovery therapy or hypnotherapy.334 [ID] met with a therapist, Mr Damien Paynter, on 21 April 2020 at 2.00 pm. The nature of the consultation was to discuss therapy related to recovered memory as well as the complainant’s pregnancy at the time. Woodside property 127 There were occasions during 2019 when the complainant visited the Woodside property. [ID] attended the Woodside property on Christmas day in 2019.335 This was before the complainant’s memories returned. [ID] gave the accused a hug upon arriving at the house on Christmas day. No memories were triggered when this occurred. They played video games and one of the characters in a game was ‘Donkey Kong’. Again, no memories resurfaced when playing this game.336 Re-examination 128 [ID] had never undertaken an accredited course of study in respect of memory or recovered memory.337 The complainant had not undertaken any investigations or researched the topic but was aware of a Netflix documentary that related to recovered memory.338 Complainant [SB] Examination-in-chief Background 129 [SB] was 26 years of age and was born on 25 May 1997. [SB]’s mother is [JD] and her father is [PB]. [SB]’s half-sister is [AL]. [AL] is approximately 8 years older than [SB]. [SB]’s brother is [BB] who is 2 years older. [SB]’s mother and father divorced when [SB] was approximately 3 years of age. Subsequently, [SB] relocated from Darwin to Adelaide and resided in Woodside. [SB], [AL], 331 T410.13-17; Exhibit D9. 332 T435.1. 333 T412.9-16. 334 T412. 335 T422.32-38. 336 T423. 337 T435.20-28. 338 T436.1-5. -- 39 of 87 -- 40 [BB] and [JD] moved into a property in Woodside but to a different address to her grandparent’s property. [SB] then moved to Elizabeth when 5 years of age. [SB]’s mother met another partner, [VW], after separating from [PB]. Thereafter, the family relocated to Cairns. [SB] resided in Cairns from the age of 6 till 14 years of age. [BB], [AL], [JD] and [VW] all resided in Cairns together. [JD] and [VW] had two children.339 When [SB] was 14 years of age, she relocated to Mannum to reside with [PB]. Woodside property 130 Between the ages of 3 and 6, the complainant visited the accused’s residence. The complainant would frequently visit the home. The accused resided at this property at the time. [SB] attended the property on one occasion without [BB], [AL] or [JD]. [SB] confirmed that the accused’s bedroom was downstairs behind the kitchen area near the laundry room. There were two doors to the accused’s bedroom and the entry closest to the kitchen was the entry used. The accused’s bedroom contained a bed, gaming console, a sword on the wall and Lego. [SB] had very few memories of the period between ages 3 and 6 and could not give an estimate as to how many times that [SB] attended the accused’s room.340 Between the ages of 3 and 6, [SB] had very little memory of what she did when she attended the Woodside property.341 [SB] would spend time with [SD] but only had one memory involving sexual abuse with the accused. Incident – count 3 131 [SB] recalled an occasion when the accused abused or molested her at the Woodside property. The complainant was approximately 4 years of age.342 [SB] did not know the reason for her attendance on this occasion. Apart from the accused, [SD] and [JD] were also present. The incident occurred in the accused’s bedroom. No one else was present in the room. [SB] was lying on the accused’s bed. The accused was lying across the bed with his knees on the floor and his head between the complainant’s legs.343 The complainant could not provide evidence as to what either individual was wearing at the time. [SB]’s head was towards the bedhead. The accused was on his knees and was hovering over the accused. The accused performed oral sex on [SB].344 [SB] did not have any physical or emotional reaction and ‘It felt normal and I felt relaxed’.345 132 [SD] walked past the open door when walking to the laundry room. [SD] witnessed the incident and continued walking to the laundry room.346 It was daylight at the time. The bedroom light was not on but there was natural light in 339 T446; T447; T448. 340 T451.10-11. 341 T451.15-17. 342 T452. 343 T453.22-23. 344 T454.15-16. 345 T454.23-24. 346 T454.26-28. -- 40 of 87 -- 41 the room.347 There was no obstacle between [SD] and the incident that would have obstructed the view. Whilst [SD] walked past, the accused continued to perform oral sex. The complainant had no further memory as to the events that occurred after [SD] walked past.348 133 After this incident, the complainant visited the accused’s house on other occasions. The complainant continued to visit the accused’s home after relocating to Cairns.349 There was no other occasion when any further inappropriate behaviour occurred between [SB] and the accused in the accused’s bedroom.350 Evidence of discussions between complainants [AL] & [ID] 134 [SB] had disclosed to [AL] about the incident that occurred with the accused. [ID] was aware of the incident, but [SB] could not say with certainty if specific details were discussed.351 [SB] was not aware of the specific details of the inappropriate behaviour that [AL] experienced with the accused but believed the abuse occurred on at least a hundred occasions.352 [SB] first learnt this information in approximately February 2019.353 [SB] did not observe any inappropriate incidents occurring to any other persons at the Woodside property.354 [SB] learnt that [ID] had made allegations of abuse. The complainant first learnt this through a video call with [ID] in 2021, when [ID] had decided to come forward to police.355 Cross-examination (Mr English) Complaint 135 The complainant first reported the allegation of sexual abuse concerning the accused to the South Australian Police in February 2019. At the time of the report, the complainant resided in the Netherlands. [SB] did not send a copy of her affidavit to [AL]. [SB] did not specifically discuss the contents of the affidavit with [AL] due to feeling uncomfortable to discuss the details of sexual abuse.356 However, in broader terms, [SB] and [AL] discussed the statement on more than ten occasions.357 [SB] primarily communicated with [AL] through Facebook Messenger. At the time that [SB] made the statement to police, she was in communication with [ID] and [AL]. The complainant did not provide [AL]’s contact details to the police. The complainant could not recall who she made the initial complaint to.358 [SB] rejected the proposition that [AL] discussed and 347 T455.1. 348 T455. 349 T456.20-22. 350 T457.6-12. 351 T457.20-22. 352 T457.25-31. 353 T457.32-33. 354 T458.13-16. 355 T458.21-32. 356 T460.7-9. 357 T460.13. 358 T463. -- 41 of 87 -- 42 planned how [SB] should make a report to the police.359 [SB] rejected the proposition that she was sharing emails with [AL] in respect of the abuse they both suffered.360 136 [SB] and [AL] were exchanging information regarding their mental health at the time before reporting the allegations to the police. They exchanged information regarding their shared experience in relation to the accused.361 [SB] was not requested by police to produce all of the messages exchanged with [AL] but was asked in respect of [ID] to produce all electronic messages. 137 [SB]’s friend [LO] visited the complainant in the Netherlands in 2018. It was put to the complainant that she had been communicating with [AL] regularly regarding the sexual abuse perpetrated by the accused. The complainant did not recall that this had occurred.362 138 [SB] told police that one of the reasons why she came forward and made a report was because it was ‘very important that [AL] is believed’.363 Incident 139 [SB] believed that she was 4 years of age at the time due to [BB] and [AL] not being present in the house. They were at school at the time. However, the complainant conceded that there was a possibility that [BB] and [AL] were in fact present on this occasion.364 [SB] accepted that it was possible that she was living in the Elizabeth property at the time rather than the Woodside residence, as previously stated in her evidence.365 [AL] informed [SB] of an occasion when [AL] had witnessed the accused molest her but [SB] had no memory of this.366 [SB] was shocked when she learnt this information. 140 [SB] recalled the facial expression of [SD] at the time of the incident for a few seconds, approximately 2.367 Relationship with [AL] 141 [SB] described her relationship with [AL] as ‘on and off’ depending on their mental health.368 [SB] had always been in contact with [AL], but the frequency varied due to the complainants living in differing geographical locations.369 [SB] 359 T466. 360 T466.5-10. 361 T466.25-31. 362 T468.22-25. 363 T469.25-32. 364 T464.1-5. 365 T464.13-15. 366 T46.34-36. 367 T508. 368 T470. 369 T470. -- 42 of 87 -- 43 denied the proposition that [AL] convinced her to create an allegation against the accused to support her respective allegation.370 Relationship with [ID] 142 [SB] shared a close relationship with [ID]. [SB] would frequently attend the Woodside property whilst [ID] was present. [SB] denied the assertion that she planned to involve [ID] to strengthen her respective allegations against the accused.371 [SB] was shown an email which suggested that an experienced victim management person was satisfied that [ID] had ‘nothing to hide’. The email further stated ‘[ID]’s got no memory of being abused’.372 [SB] agreed that the email details that [ID] made no disclosure of abuse. On Wednesday, 11 March 2020 at 6:00pm, [SB] replied 'Hi Ben, I definitely think [ID] would have been abused'.373 143 [SB] was having discussions with [ID] in approximately March 2020 regarding [SB]’s own abuse. [SB] had informed [ID] that she had made a complaint to police and [ID] was aware of this information. However, [SB] did not attempt to alter [ID]’s position.374 [SB] was not aware of the specific information that [ID] disclosed to police. [SB] did not speak to [ID] in respect of the incident involving the accused prior to speaking to police in 2019. [SB] was never instructed by the police to force or manipulate [ID] to come forward. [SB] confirmed that the police stated that they could face criticism if they spoke with [ID] after her original statement.375 The police stated that it was best practice for [ID] to approach the police on her own volition.376 An email was read from police dated 12 March 2020: 'We'll discuss the merits of contacting her again. In matters such as these we have to be careful about pursuing potential victims, particularly after they have already provided a detailed statement and made no disclosures'.377 144 It was put to the complainant that after the email communication with Police on 12 March 2020 up until 21 April 2020, [SB] placed pressure on [ID] to change her position in respect of the accused having committed sexual abuse against her. [SB] gave evidence that she never placed pressure on [ID] to come forward about the abuse that [ID] was not ready to disclose.378 [SB] stated words to the effect of 'I would never try and influence the victim of sexual offending to say anything that they did not want to say’.379 145 [SB] confirmed that there were messages between 21 April 2020 and 4 July 2020 where [SB] felt that [ID] was engaging in victim blaming behaviour.380 [SB] 370 T471.8-10. 371 T472. 372 T474.14-17. 373 T474. 374 T475.28-33. 375 T478. 376 T478.28-30. 377 T479.19-23; Exhibit D10. 378 T490.13-20. 379 T490. 380 T494.13-18. -- 43 of 87 -- 44 denied the assertion that the reason she blocked [ID] on Facebook was due to [ID] resisting to change her position with police, in that [ID] had not suffered abuse at the hands of the accused.381 146 [ID] reached out to [SB] regarding the topic of recovered memory. [SB] attempted to be supportive without overstepping boundaries.382 [SB] confirmed that during an exchange of messages, [ID] disclosed having only a few memories of her childhood. [SB] suggested that [ID]’s memories were repressed.383 [SB] gave evidence that it appeared bizarre that the accused would molest both herself and [AL] but not [ID]. The complainant stated that there was a psychological basis which explained why [ID] would not remember the abuse perpetrated by the accused.384 [SB] sent various psychological articles that detailed childhood experiences including depression, anxiety and mental illness as a result of trauma to [ID].385 Communication with [CM] 147 The complainant received a Facebook message from [CM] stating, 'Hey [SB], [ID]'s remembering the monster that [D, DJ] is'.386 [CM] disclosed that memories had been triggered whilst watching the TV show Drawn Together.387 [SB] replied 'Hey [CM], sorry to hear that [ID]'s having these memories triggered, it can be a very difficult thing to go through. Please let her know that I love her too'.388 [SB] could not remember sending these messages to [AL].389 148 An email from Detective Bateman in the following terms was put to the complainant: 'I would suggest that contact be made with [CM]/[ID] by either yourself, [AL], or through [SB] as you both have our contact details'.390 [SB] did not follow up with this suggestion and would not contact [ID] in any way that would coerce a statement. [SB] did not contact [ID] regarding this suggestion by Detective Bateman.391 Re-examination 149 [SB] explained that the family’s attitude towards any allegation of wrongdoing [on the part of the accused] was met with harshness and/or complete family ostracisation.392 The ostracisation was primarily perpetrated by [SD]. 381 T494.24-31. 382 T495.9-12. 383 T496. 384 T497.14-18. 385 T498. 386 T502.1-3. 387 T502.4-7. 388 T502.11-15. 389 T502.23-25. 390 T506. 391 T507. 392 T509.13-17. -- 44 of 87 -- 45 150 [SB] did not discuss the police statement with [AL] and the purpose of any conversations with [AL] were to discuss the psychological burden of trauma rather than the specifics due to the sensitive nature of the topic.393 When [SB] had questions or advice regarding the criminal investigation, the witness turned to the police.394 [SB] had also always kept the topic of conversation regarding police matters very limited with [ID].395 Benjamin Philip Ward Examination-in-chief Background 151 Detective Brevet Sergeant Ward had been a police officer for 19 years at the time of giving evidence and was stationed at the Special Crimes Investigation Branch. Detective Ward was the investigating officer in the matter.396 Investigation 152 There was a meeting in relation to the investigation on 7 February 2019. The meeting was to discuss allegations of historic sexual abuse made by [SB]. Detective Ward attended the Woodside property on 10 February 2019. Detective Ward spoke to the accused. The witness then attended the accused’s bedroom on the ground floor. The accused was subsequently arrested and taken to the Mount Barker Police Station. The accused participated in a record of interview. Record of interview 153 The accused participated in two records of interviews.397 The record of interview contained admissions in relation to opportunity for the accused to commit the offending. 154 The first record of interview was conducted on 10 February 2019. During this interview, the accused denied performing oral sex on [SB]. The accused stated, ‘well we were just messing around and, and she didn’t have any clothes on and I, and I bit her bum, and that was about, that was, that was all, that’s, that’s, I never licked her anything’. The accused further stated ‘Well she was naked, and she came to my room and so I just softly bit her on her bum. It wasn’t, I wasn’t aggressive with her in any way, it was just, er, it as just a, it wasn’t planned’. This conduct occurred in the accused’s bedroom. Other family members were present in the house at the time. The accused further stated that [SB] and [BB] would visit the Woodside premises during holidays approximately twice a year. [SB] was on the bed when the accused bit [SB]’s bottom. The accused believed that [BB] was upstairs or in the loungeroom at the time. The accused was of the understanding that [SB] was hungry and wanted to watch cartoons and that was the reason for 393 T510. 394 T511.29-33. 395 T511.19-20. 396 T516. 397 Exhibit P12 & MFI P12A. -- 45 of 87 -- 46 visiting the accused’s bedroom in the morning. Once the accused bit [SB]’s bottom, [SB] returned upstairs to get dressed as someone else in the house was yelling for her to get dressed. The accused described the behaviour as harmless fun. The accused denied having a sexual attraction to children. 155 The accused stated that this incident occurred once with [AL] in similar circumstances. [AL] visited the accused’s house when [AL] lived in Darwin. The accused was playing computer games with [AL] in the accused’s bedroom. [AL]’s clothing was on at the time. 156 I will return to an analysis of the Record of Interview in the discussion section of these Reasons. [AL] statement 157 Detective Ward was involved in taking a statement from [AL]. Detective Bateman was also involved in facilitating this statement. On 4 July 2019, further disclosures were made by [AL] in relation to the accused. A further brief was subsequently conducted. The purpose of the brief was to rearrest the accused. 158 Detective Ward attended the Woodside property on 5 July 2019. The accused was arrested. Enquires were made in the course of the investigation as to the ownership of the title of the Woodside property.398 159 [AL] identified school friends who the complainant first disclosed the sexual abuse to. However, there was insufficient information to identify those persons for the purpose of attempting to obtain a statement. Detective Ward attempted to gain statements from [RD] and [MD] but both were unwilling to provide signed statements. [RD] provided a statement but was not willing to ultimately sign the statement. Cross-examination (Mr English) 160 The witness did not record any notes regarding the relevant inquires made as to the initial complaint made by [AL].399 Detective Ward confirmed that they were unable to obtain any statements from the initial complaint witnesses in relation to [AL], being the three schoolgirls. 161 The accused participated in a record of interview and cooperated with police. The accused provided the police with the pin number for a phone as well as the password to his computer. 162 A number of other children were interviewed as part of the investigation. Specifically, [AW] aged 13, [MZD] aged 8, [ED] aged 10, [TW] aged 15 and [KD] 398 T523; Exhibit P13. 399 T528. -- 46 of 87 -- 47 aged 7. None of these children made any disclosures that the accused interfered with them.400 Each of these children had visited the accused’s home previously. Police management 163 Detective Ward accepted that preventing potential prosecution witnesses speaking to each other about the details of a case is fundamental to the integrity of the investigation.401 [ID] investigation 164 The witness confirmed that [ID] provided two affidavits. The first of which attested to the accused committing no acts of abuse against the complainant. The second affidavit alleged the accused perpetrating acts of sexual abuse subject to the charges.402 Detective Ward stated that [SB] and [AL] were convinced that [ID] had been offended against by the accused. The witness stated that both [SB] and [AL] were speaking to either Detective Bateman or himself requesting that they revisit the investigation in relation to [ID]. Thus, the witness sent the following email: ‘I, personally, don't think [ID] is hiding anything; she was quite frank in her statement and said it's possible being offended against, but she has no memory of it’. The purpose of the email was effectively to reassure [SB] and [AL] that no further disclosure had been made and the police were not pursuing the investigation in relation to the complainant, [ID].403 In Detective Ward’s experience it is common that despite many warnings that are provided to complainants in historical sex matters, there are still instances when multiple complainants will communicate with each other.404 The email dated 12 March 2020, was an example of when the witness told [SB] not to discuss the matter.405 Detective Ward did not hold any concerns that [SB] was interfering with [ID]’s evidence in March 2020.406 Dr Melanie Takarangi 165 Dr Takarangi is a cognitive scientist and prepared a report in respect of a number of key issues including memory in relation to this matter. The report, together with Dr Takarangi’s curriculum vitae was tendered by consent.407 I have regard to Dr Takarangi’s curriculum vitae when assessing the expert witnesses’ relevant qualifications. Report of Dr Takarangi 166 I have regard to the entirety of Dr Takarangi’s report. Dr Takarangi outlined the following having regard to an array of scientific materials: how memory works 400 T532; T533. 401 T535.23-38. 402 T538. 403 T543. 404 T547; T548. 405 T548.21-23. 406 T549. 407 Exhibit D13; Exhibit D14 -- 47 of 87 -- 48 in general terms, what infantile amnesia is and its effects, how memory differs between age groups, the phenomena of recovered memory, the likelihood of suppressed memory as a result traumatic events, what false memory is and what may distort containment memories 167 Dr Takarangi could only render a general opinion on issues with a factual basis in evidence and could not make a statement of likelihood. Dr Takarangi identified the following facts arising from the evidence disclosed that had relevance to the question of plausibility in relation to [ID]’s allegations: 1. The alleged offending in this case took place 16 or more years ago. The passage of time means that memories from that period have faded; it also allows for many factors to affect, and potentially distort, the details of those memories; 2. One of the earliest incidents of abuse that [ID] reports is when she was aged 2 (or possibility younger). In this memory, she recalls being taken to a room, laid down, having her nappy changed, and experiencing pain in her vagina, Around age 2 is within the period of early childhood amnesia for which people generally have no memories; 3. The other incidents of alleged abuse occur over a period of years up to when [ID] was around age 7. This is within the additional period of childhood amnesia for which adults’ memories for childhood tend to be sparse; 4. [ID] is an adult reporting on events that occurred when she was a child up to the age of around 7-years-old. Based on the scientific evidence, we would not expect memories, especially at increasingly younger ages, to contain much in the way of specific details. Yet, the memories [ID] reports from when she was 2-4 years old are sometimes quite specific. For example, she often reports details of spatial layout, and sometimes reports when she and others were thinking or feeling and/or wearing; 5. The abuse allegedly occurred many times over several years, yet [ID]’ reports having been entirely unaware of her own abuse history, though she was aware of others’ alleged abuse, until the recent recovery of the memories; 6. [ID] appears to believe that her memory was blocked or repressed, and to believe in the process of recovering memories. As discussed in the report, there is not scientific evidence that memory operates in this way; but believing that it does operate in this way may encourage a person to accept recovered memories as accurate; 7. [ID] appears to have recently discussed the allegations with her cousin, [SB], although the full extent of these discussions is not clear. However, -- 48 of 87 -- 49 [ID] does report sharing some of her memories with [SB], and that [SB] shared a memory with her; 8. [ID] has also discussed her recovered memories with her husband, with other family members, and was exposed to [AL]’s allegations via family members when she was around 12 years of age. [ID] has engaged in some other intentional ‘memory work’, for example by watching television shows from childhood that she believes to have triggered her memories; 9. As discussed in the report, expectations and prior knowledge about certain events or time periods, as well as any task that involves thinking about, imagining, or talking about an event including retelling, discussion and reflection can encourage the generation of inaccurate information about that event. There is some evidence in the record that [ID] has been exposed to and/or has engaged in these activities in relation to the abuse allegations against the accused; 10. There is also some evidence of statements in the record that could reflect a motivation to remember. For example, [ID] expresses concern for her young relatives, especially her younger sister. [ID] also describes several personal mental health difficulties that a history of abuse might be perceived to explain. 168 Dr Takarangi distinguished that it was not possible to identify all of the information that [ID] may have acquired, or to which the complainant may have been exposed, that has the potential to have changed her memory, or that could create a belief and or a memory for an event that never happened. 169 Dr Takarangi opined that memoires would have increased plausibility to the extent that: [ID] did not understand the experience(s) as abusive when it occurred; her experience(s) occurred later in childhood; she had a continuous memory for the abuse over her lifetime since it occurred; the memories did not come back gradually in response to extensive ‘memory work in the course of therapy’; there is corroborating evidence of disclosures from the time period in which the alleged abuse occurred. Addresses of Counsel Prosecution closing address 170 Ultimately the prosecution submitted that it has been proved beyond reasonable doubt that the accused has committed the charged acts as described by each complainant. Mr Walker provided an overview of the background of the charges and the evidence that related to each count. I have regard to the evidence that the prosecution asserts relates to each count. -- 49 of 87 -- 50 Propensity reasoning 171 Mr Walker submitted that the complainant, [AL], was the oldest, therefore, the most likely to be a reliable historian at the time the abuse ended. The prosecution submitted that the accused had a propensity and therefore could apply that in respect to [AL]’s evidence in consideration of the subsequent complainant’s accounts. The propensity that the prosecution submitted is a sexual interest in young girls under the age of 12 and a tendency to act on it opportunistically, notwithstanding a risk of detection and a familial connection. 172 Mr Walker drew the courts attention to the case of Hughes v The Queen.408 Whilst it is not necessarily appropriate to reason from a propensity in every case involving sexual abuse, the prosecution submitted, it was appropriate in this case due to the extended period over which [AL] was continually offended against. There were not significant periods of interruption, and whilst there was some variation in the accused’s approach, the ultimate thrust of the complainant’s evidence was that the accused performed cunnilingus and did so in a ritualistic way. Similarly of account reasoning 173 The prosecution also submitted that similarity in account reasoning between [AL] and [SB] should be employed in this case. The similarities between the evidence of [AL] and [SB] cannot be explained by the hypothesis that they independently fabricated or imaged their accounts. Thus, their accounts are either a product of collusion or true. The similarities that the prosecution submitted are: • that the abuse they described commenced at approximately 4 years of age; • that it took place in the accused's bedroom; • that it took place while there was another person or other persons in the house; • that in each case the complainant states that they were lying on their back on the accused's bed, the accused was facing the complainant’s, kneeling or crouching from the area of the foot of the bed; • that the complainants were partially clothed, but not completely naked and that the accused had removed some of their clothing; • that the accused was performing cunnilingus on the complainants; and 408 (2017) 263 CLR 338 [56]-[65]. -- 50 of 87 -- 51 • in each case that the complainant was seemingly indifferent to it, and in the varied experience, one would not expect that to feature in two independently imagined or fabricated accounts of sexual abuse. Complainant [ID] 174 The prosecution submitted that if a propensity based on [AL]’s evidence existed, then there would be no way of justifying not applying the same to [ID]’s evidence. However, Mr Walker conceded that there were doubts that surrounded [ID]’s evidence. The prosecution stated that it is open to find that [ID] genuinely believed that something occurred, but that there was not much that could be submitted with respect to [ID]’s reliability due to the previous inconsistent statement and by the means that [ID] accessed these memories for the first time. Complainant [AL] 175 The prosecution submitted that [AL] was a fairly simple witness. The complainant answered the questions as best she could and was, for the most part, of a fairly even temper throughout her evidence, and that her frustration was more at herself than any other matter. [AL] was prepared to answer questions and provide a frank account. Mr Walker submitted that [AL] was a fairly compelling witness. [AL] was lacking in any emotional volatility describing the events recalled, apart from describing the abuse witnessed against [SB]. The prosecution submitted that this was a natural and understandable presentation. 176 There are details in [AL]’s evidence that are unlikely to be products of invention, for example, accidentally urinating on the accused whilst the accused performed oral sex on her. Another being that [AL]’s grandmother attempted to prevent the abuse on two occasions. A further detail that was compelling was [AL]’s account of her growing realisation of being sexually aroused by the accused’s actions. The prosecution submitted that this was a detail by which someone who was falsely attempting to portray themselves as a victim would be very unlikely to incorporate this detail in their account. 177 [AL]’s stepfather was violent and as a result [AL] lived an unhappy life with her relocated family in Darwin. Being with the accused did not cause [AL] any physical pain and the complainant enjoyed the opportunity to get away from the difficult home environment in Darwin. [AL] appreciated the accused’s attention, playing video games and largely felt ignored by her family at the time. Therefore, it was understandable that [AL] continued to spend time with the accused, notwithstanding the sexual abuse. [AL] further described the feeling of rejection and abandonment when the accused turned his attention towards [SB]. The prosecution submitted it would be highly unusual for someone to falsely portray themselves as a victim and give such evidence. 178 The prosecution submitted that albeit there was limited evidence of the initial complaint, it was still consistent with [AL]’s evidence and is admissible pursuant to s 34M of the Evidence Act (EA) to demonstrate consistency of conduct. -- 51 of 87 -- 52 179 Mr Walker submitted that there were other witnesses’ evidence that lend support to [AL]’s account of the events. Specifically, [JD] described an occasion of when [AL] was missing, and [SD] and [JD] were frantically looking for both the complainant and the accused and [SD] found them. [JD] also gave evidence of an occasion, having moved back from Darwin, where they were living in Highbury and the accused came and lived with them for a period of time and came into the bedroom at night and tried to wake up [AL]. The prosecution submitted that this demonstrated that the accused had a special interest in [AL], which was consistent with the evidence that [AL] gave regarding the special bond between the two. [PB] also observed the accused and [AL] together. [AL] was about 6 or 7, they were together in the accused’s room and the door was shut. When [PB] entered the room, the accused was sitting close behind [AL], and the accused appeared startled and pulled the doona up. 180 Mr Walker submitted that it was understandable that [AL] was at times confused about the peripheral details in her account, clothing worn or the weather or time of year. That confusion did not undermine the reliability of the memories that [AL] described with respect to the abuse, which would plainly have been more memorable. 181 At the time that [AL] gave her statement she had a drinking problem and admitted to having a fuzzy memory. However, the prosecution submitted that those matters do not bear on the reliability or credibility of the recollection that [AL] had of the events. Complainant [SB] 182 The prosecution conceded that [SB] was much less detailed in her account of the events. However, Mr Walker submitted that [SB]’s account still gains support from a demonstrated propensity and similarity of account with [AL]’s evidence. [AL] did not disclose the abuse to [SB] as it was embarrassing to discuss. Similarly, [SB] explained a lack of desire to discuss the matter with [AL]. [SB] stated that it was sensitive, personal and neither of them wanted to discuss it. 183 In relation to [SB]’s evidence, the prosecution contended that the complainant played an unwise part in [ID]’s allegations emerging. However, this should not reflect on the credibility of [SB]’s own allegations and could be consistent with [SB]’s knowledge of abuse. Collusion 184 Mr Walker submitted that collusion could be excluded on the strength of the witnesses' evidence and the logic of their explanation as to why each complainant would not wish to discuss this shameful and hurtful part of their lives. Therefore, the similarities can only be explained by their truth. -- 52 of 87 -- 53 Accused record of interview 185 The accused suggested that there was an occasion when the accused bit [SB] on the bottom in the context of playing a video game. The prosecution submitted that if I were to find that the accused had performed cunnilingus on [SB] at some point, then the Court could accept the admission to bitting [SB] as a watered down indecent assault devoid of the indecency. Similarly, if a propensity existed for the accused to act opportunistically on his sexual interest, then however innocently it appeared, the biting of [SB] on the bottom was a manifestation of that and was indecent in the circumstances. 186 Ultimately the prosecution submitted that [AL]’s account was compelling and assists in resolving doubts that may exist regarding [SB] and [ID]’s evidence. Mr Walker submitted that it would not be improbable that the accused took risks as borne out in the evidence. Defence closing address Recovered memory 187 Defence counsel submitted that having regard to the opinion expressed by Dr Takarangi, [ID] was mistaken as to what may have occurred. Mr English submitted that the recovered memory was an extension of the collusion and concoction that was apparent and present in this case. [ID] credibility and reliability 188 Mr English submitted that [ID] was untruthful throughout her evidence, which was precipitated through the two differing affidavits provided to police. [ID] provided a detailed statement to police in 2019. It was made plain in an 18 page affidavit that at no point did [ID] disclose that any sexual abuse was perpetrated by the accused. Detective Ward, as an experienced investigator, was satisfied on the first occasion that [ID] was telling the truth. Therefore, the second statement of [ID] was not true in the circumstances and was borne out of pressure instigated by [SB] and [ID]. 189 Further, [ID] had mental health difficulties at age 15, which further affected her credibility. 190 [ID]’s recovered memory simple cannot be true in the circumstances. The evidence that [ID] described where the complainant was 2 years of age and watching ‘King of the Hill’ was simply not plausible for her to recount such an incident at this age having regard to Dr Takarangi’s report and the scientific ideal of infantile amnesia. Therefore, [ID]’s allegations are not just a mistake but fabricated entirely. Collusion and concoction 191 Defence counsel submitted that there was clear collusion and concoction. -- 53 of 87 -- 54 192 Mr English drew the courts attention to the email exchange between [SB] and Detective Ward in March 2020 in which [SB] offered to assist with the investigation and was, in defence counsel’s submissions, placing pressure on [ID] to alter her position. Defence counsel further submitted that the email communication between [SB] and the police, confirmed that [AL] was also aware of the details of the sexual abuse allegations in relation to [SB] and [ID] and therefore was not merely on the periphery as suggested by the prosecution. Instead, it was a reasonable possibility that the complainants had been discussing the allegations and strategic planning occurred before each complainant provided a statement to police. 193 Defence counsel submitted that [SB] manipulated [ID] through the unfriending on Facebook, which would have placed further pressure on [ID] to change her respective position. Likewise, there was Facebook Messenger material where [SB] was sending articles regarding repressed memory to [ID]. This communication demonstrated that [SB] was placing ideas in the mind of [ID] who was also vulnerable at the time. Thus, the articles that were sent to [ID] further illustrated collusion to incite a statement from [ID]. 194 The emails of Detective Ward to [SB] demonstrated that [SB] coerced [ID]. Specifically, Detective Ward sent an email to [SB] that stated: 'Hey, [AL]’s told me that she thinks that [ID] was definitely interfered with. What do you think, [SB]? What do you think?'. [SB] replied 'Yeah, well, if you ask me, she was definitely interfered with, but look, hey, I'll have a word to her about all of that and I'll see what I can come up with'. [SB] then followed through with such inquires, which was evidence through the Facebook messages in April 2020 between [SB] and [ID]. 195 There was a lack of extraction of the messages between [SB] and [ID]. Both [SB] and [ID] were allowed to self-report all of the information to the police. Similarly, there was a lack of emails sourced in relation to [AL] to truly know the extent of the coercion that was present between [AL] and [SB]. [AL]’s credibility and reliability 196 Mr English submitted that [AL] was also copied into the email trails and therefore was aware and complicit in [SB]’s pressure on [ID]. This was particularly evident when [AL] forwarded the email trail from [CM] and [SB] to police. Mr English submitted that there was a reasonable possibility that the allegations made by each of the complainants was planned, strategized and [AL] was complicit, notwithstanding a lack of emails or messages between [AL] and the other complainants. Therefore, the court can be satisfied that [AL] had told a deliberate lie and therefore effects the balance of her evidence. 197 [AL] used benzodiazepines and although denied psychotic episodes, the complainant indicated that there was a short-lived period of paranoid delusions. -- 54 of 87 -- 55 198 [AL] gave a detailed account of attending a wedding as a flower girl when 2 years of age. The complainant felt uncomfortable when seeing the accused. Dr Takarangi’s report stipulated that children around the ages of two do not have a strong memory at this age and certainly would not be able to provide the kind of detailed evidence or detailed account that [AL] provided. Therefore, the scientific evidence demonstrated that this recount would be a complete fabrication in the circumstances. This further demonstrated that the complainant was capable of lying and fabricating stories in order to present more believable. 199 [BB] never witnessed any sexual abuse occurring at the accused’s residence. Mr English submitted that this further effected [AL]’s credibility and reliability. [AL] gave evidence that [BB], when aged 5 or 6, witnessed sexual abuse perpetrated by the accused against [SB]. However, this evidence was in stark contrast to [BB]’s evidence. Thus, affecting [AL]’s credibility and reliability. [SB]’s credibility and reliability 200 It was submitted that [SB] was in constant communication with both [AL] and [ID] throughout the police investigation. [SB] placed clear pressure on [ID] to alter her position and support the respective allegations. The various emails that passed between the police and [SB] further demonstrated that [SB] was calculated and took steps to alter [ID]’s position. Introduction of additional information 201 Defence counsel submitted that [AL] had a tendency to include additional details in evidence. [AL]’s first memory was her pants being around her ankles, and the accused performing oral sex. However, in cross-examination, the complainant provided an earlier background account of the incident. 202 [AL] initially gave evidence in-chief that [RD] was never around at the Woodside property. Instead, the complainant would spend all day in the accused’s room. Contrastingly, in cross-examination, [AL] gave evidence that she would play games in [RD]’s room as well as spend half her time in [RD]’s room. This evidence was different to the evidence that the complainant spent all of her time in the accused’s bedroom. When questioned if [RD] had ever witnessed any sexual abuse perpetrated by the accused, the complainant confirmed that there was a single occasion. The complainant then provided a detailed account of when [RD] observed the accused perform oral sex on her. Such details were never raised previously, which ultimately demonstrated that [AL] had a propensity to include additional details and affects her credibility and reliability. Motives to lie 203 Defence counsel submitted that [AL] experienced psychological difficulties due to abandonment issues and physical violence experienced in her adolescence. It is clear that [AL] felt abandoned by her family and neglected. This was further emphasised through her dislike towards [SD] when compared to [DFL]. Against -- 55 of 87 -- 56 the background of mental health difficulties, drug use and a serious mental health breakdown, it was a reasonable possibility to conclude that [AL] had lied. 204 It was submitted that [SB] suffered neglect and physical abuse perpetrated by [PB]. Prior to the allegations being made to police in February 2019, there had been constant dialogue between [AL] and [SB] that the accused had interfered with [AL] as a child. Thus, [SB] in an attempt to bolster her relationship with [AL], supported [AL] with her allegation through giving evidence that the accused sexually abused her on one single occasion. 205 Defence counsel submitted that [ID] had been bullied, cajoled and pressured into making allegations that cannot be true in the circumstances. [ID]’s recovered memory simply cannot be true and instead it was clear that [SB] had pressured [ID] into altering her respective position. Family relationships 206 Defence counsel submitted that the photographic album that [AL] received demonstrated the love and affection that was extended to [AL] during the entire period of her childhood when attending the Woodside property. There were many photographs of [SD] being affectionate, warm and loving with [AL]. It is plain that there was a very close bond between [SD] and [AL]. The accused was also depicted in photographs which was in stark contrast to [AL] being uncomfortable or the family being aware of the abuse. [BB] loved attending the Woodside property and that the accused was seen as something of a hero. [DFL] also gave evidence that [AL] loved her grandmother, [SD], which was in contrast to [AL]’s evidence that [SD] was cold and disingenuous. Similarly, [DFL] did not observe any change in the behaviour of [AL] or that sexual abuse did in fact occur. Instead, [DFL] gave evidence that [AL] appeared cheerful when attending the accused’s house. 207 Defence counsel submitted that the photograph of [AL] in the bath with candles surrounding her was completely innocuous and that the complainant appeared happy. However, [AL] attempted to turn an incident, where the complainant objectively appeared relaxed and happy, into an opportunity to attack [SD]’s behaviour. 208 [JD] would have been present for much of [AL]’s and [SB]’s time spent at the accused’s residence. However, [JD] only gave evidence of a few incidents and never witnessed any sexual abuse firsthand. The first occasion that [JD] gave evidence in respect of was when [SD] was banging on the bathroom door when [AL] was in the bathroom with the accused. On this occasion, [JD] did not observe behaviour that was untoward. There was another occasion of [AL] sitting on the accused’s lap. Finally, there was an instance when the accused stayed with [JD] due to the house being haunted and touched [AL] in the night. However, the accused was invited to the home on multiple occasions. [PB] did not observe any sexual abuse and the idea that this could have occurred only came to mind after he spoke with [SB]. -- 56 of 87 -- 57 Discussion Motive to lie 209 It was submitted by defence that each of the complainants had motives to lie. In relation to [AL], it was submitted that her motives to lie included psychological difficulties due to abandonment issues, physical violence experienced in her adolescence, her dislike towards [SD] contrasted to her relationship with [DFL], combined with drug use and a mental health breakdown. 210 In relation to [SB], it was suggested by defence that her motives to lie included neglect and physical abuse perpetrated by [PB], and, perhaps more importantly, a commitment to improving her relationship with [AL] by bringing allegations of sexual misconduct against the accused. 211 In relation to [ID], it was suggested by defence that [ID]’s motive to lie was that she had been pressured by [SB] to effectively change her mind to bring the allegations. 212 In my view, the evidence does not support a motive to lie in relation to each of the complainants. The various suggestions advanced by defence were rejected by each of the complainants. The most prominent of those possible motives was that there was a conspiracy established between each of the complainants to falsely implicate the accused in the charged offending as a consequence of first, a desire to support each other and second, as I understand it, a desire to extract revenge against family members for perceived mistreatment over an extended period of time. These suggested motives can be dealt with as follows. 213 As to the desire to support each other, I have already found that whilst the complainants may have disclosed to each other the bare allegation of the abuse, with the exception of [AL] disclosing to [SB] that she had observed the accused abusing her, no particulars of abuse were shared between the complainants. In relation to the [AL]/[SB] disclosure, no detail of the act of abuse was described. It is of note at that [SB] did not incorporate this incident into her evidence against the accused. A careful assessment of this body of evidence speaks against a targeted campaign to nefariously unify in untruth against the accused. 214 As to the suggested desire to exact revenge against the family, it is apparent that there was significant dysfunction and upheaval that pervaded the family environment of the complainants over an extended period of time. The complainants had many difficulties to deal with during their formative years and rejected any suggestion that any alleged poor treatment occasioned upon them by generally and by immediate family of the accused was the precipitator of their allegations. I do not accept childhood difficulties generally and/or perceived poor treatment towards the complainants by the accused and his immediate family as being capable of supporting this as providing a motive to lie, both individually and collectively. -- 57 of 87 -- 58 215 I do not accept that the complainants lied as a consequence of the matters suggested by defence. 216 By rejecting the suggested motives to lie, the prosecution case is not in any way advanced or strengthened. The versions provided by the complainants gain no credibility from a rejection of the suggested motive to lie. The accused has no onus to prove a motive to lie. Collusion and contamination 217 I have carefully considered the submission advanced by defence that the complainants colluded together to make false allegations against the accused. I have also considered whether the suggested communications between the complainants have led to contamination in their evidence. The suggestion of collusion was put to each of the complainants. It was also submitted that communications regarding the allegations could have led to contamination, although, as I understand the position adopted by defence, this was a secondary or fall-back position. In this regard, Detective Ward was cross-examined about the methodology of the investigation and the associated communications between the complainants and the investigators. 218 Defence counsel placed significant emphasis upon electronic communications between the complainants, which on occasion included investigating police. Whilst this is evidence of there being contact between the complainants, it is not evidence of collusion. [SB]’s communications with [ID] about suppressed memories do not contain any discussion about the detail of any act of abuse. Contrary to the submission of defence, I do not regard the electronic communications as being ‘the smoking gun’ in terms of evidence of collusion. Similarly, it does not provide evidence of contamination. 219 As discussed during the course of these Reasons, including under the heading of Motive to Lie, I accept the evidence of the complainants that whilst their allegations may have been discussed in the abstract, the only detail of any allegation was the communication by [AL] to [SB] that the accused had molested her. The complainants maintained that each version proffered was of their own independent recollection. No detail was disclosed between them as to the allegations and the allegations were an independent recollection by each of them. I accept this evidence. There is nothing upon an assessment of the whole of the evidence that supports the defence theory, particularly having careful regard to the electronic communications that were subject to extensive cross examination and submissions. I am satisfied there was no collusion and there was no contamination. Forensic disadvantage 220 Whilst the requirement to direct on s 34CB of the EA does not apply to a trial by judge alone, the principle of forensic disadvantage remains. The question of forensic disadvantage pursuant to s 34CB of the EA was discussed by the Court of -- 58 of 87 -- 59 Criminal Appeal in R v Cassebohm,409 R v Maiolo (No 2),410 R v W, PK,411 and more recently in R v R, PA.412 221 What is crucial is that s 34CB is exclusively directed at the forensic disadvantage to the accused, and that disadvantage is not diluted by virtue of similar disadvantages to the prosecution witnesses. 222 In R v Cassebohm, Doyle CJ, relevantly said: I consider that it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that that is so. 223 In R v Maiolo (No 2), these factors result in a diminution of the accused’s ‘ability to effectively conduct the case including to cross-examine the complainant(s) in a way that effectively casts doubt upon issues of credibility and/or reliability’. 224 I direct myself that in respect of all counts, the accused has been substantially forensically disadvantaged in terms of being able to effectively conduct his case. I will take into account that forensic disadvantage to the accused when I come to scrutinise the evidence of the prosecution, and to assess whether the prosecution has proved the objective elements of the relevant count against the accused. I accept the existence of a forensic disadvantage in accordance with that expressed in R v Maiolo (No 2), above. Complaint 225 The law governing the admission of the complaint is controlled by s 34M of the EA, which provides: 34M—Evidence relating to complaint in sexual cases (1) This section abolishes the common law relating to recent complaint in sexual cases. Note— See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427 (2) In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct. (3) Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence. 409 (2011) 109 SASR 465. 410 (2013) 117 SASR 1. 411 [2016] SASCFC 5. 412 [2019] SASCFC 19. -- 59 of 87 -- 60 Examples— Evidence may be given by any person about— • when the complaint was made and to whom; • the content of the complaint; • how the complaint was solicited; • why the complaint was made to a particular person at a particular time; • why the alleged victim did not make the complaint at an earlier time. (4) If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that— (a) it is admitted— (i) to inform the jury as to how the allegation first came to light; and (ii) as evidence of the degree of consistency of conduct of the alleged victim; and (b) it is not admitted as evidence of the truth of what was alleged; and (c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person, but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case. (5) It is not necessary that a particular form of words be used in giving the direction under subsection (4). (6) In this section— complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise); initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time). 226 The only evidence of complaint led at trial relates to [AL]. The relevant evidence was that [AL] disclosed to three of her primary school friends when she was approximately 10 years old, that ‘my uncle was getting me to go into his room to play video games and he would basically pull down my pants and give me oral sex’.413 227 This complaint is admissible as the initial complaint as the complainant confirms this was the first occasion that [AL] had told anyone about the allegations 413 T94.14-17. -- 60 of 87 -- 61 and it is referable to the charged offending. I am satisfied that the disclosure complies with the statutory pre-requisites for admission, pursuant to s 34M of the EA. 228 The disclosure reveals how the allegations came to light, and to indicate some consistency of conduct,414 although the absence of evidence from the recipients of the complaint moderates the weight to be afforded to the complaint of [AL]. Discussion – count 1 229 I repeat the particulars constituting count 1: a) touching her breasts on one occasion; b) performing an act of cunnilingus upon her on more than one occasion; c) exposing his penis to her on one occasion; d) kissing her thighs on more than one occasion; e) causing her to touch her vagina on one occasion; and f) showing her a pornographic magazine on one occasion. 230 [AL] came up to proof in relation to the particularised events relied upon by the prosecution. Of course, simply being able to describe the particular incidents underpinning the prosecution case does not constitute proof beyond reasonable doubt. Careful consideration needs to be given to all of the evidence, the criticisms made about that evidence and the arguments advanced by the parties. Suggested deficiencies in the evidence of [AL] Incident with [RD] 231 During the course of the evidence, [AL] was cross-examined at some length about her interactions with the brother of the accused, [RD]. More specifically, the topic of whether [RD] ever interrupted an incident of sexual abuse between the accused and [AL] was raised as follows:415 Q And you've provided the differences, for example, in relation to your grandfather [BD], him appearing in the doorway on a couple of occasions. A That's correct. Q So do I understand that you have absolutely no recollection at all of your Uncle [RD] ever coming into the bedroom when anything was happening. A No, no, I don't. 414 R v H, T (2010) 108 SASR 86; R v El Rifai [2012] SASCFC 98. 415 T123.25-35. -- 61 of 87 -- 62 Q Because that certainly would have been different, wouldn't it. A That's right. 232 Later, whilst still under cross-examination, [AL] stated that she did have a memory of [RD] interrupting and stated as follows:416 Q Not once did [RD] ever spring you with [D, DJ]. A Well, I do have a memory about it, but I didn't bring it forward. Q You do have a memory about [RD] springing it. A Yes. Q Well, tell us about that. A So the memory that I have is I would have been around four-ish and I was upstairs in [RD]'s room and the three of us were playing the games together and then it was [RD]'s turn and then [D, DJ] gave me oral sex in front of [RD] and [RD] said 'You really need to stop doing that', and then I can't remember what [D, DJ] said, but he didn't do it - I don't remember him doing it in front of [RD] again after that. So I didn't mention that because a few reasons. 233 When requested to explain the reasons of this new disclosure, [AL] stated that her memory of this incident was ‘fuzzy’ and that she only included things in her witness statement that she remembered well. [AL] suggested that the ‘fuzzy’ memories were ‘early memories’. 234 I accept that a description of this particular incident was not included in the witness statement of [AL]. This was a new disclosure. However, I also accept [AL]’s explanation for this; that it was an early memory (when she was young), that it was an incomplete memory about which [AL] harboured some uncertainty and accordingly that she did not include this in her witness statement. [AL]’s explanation actually discloses a degree of care and caution when making disclosures, which I regard in the overall context of her evidence as being reflective of her being careful not to make allegations about which she was uncertain. Criticism regarding inconsistencies/inability to remember surrounding detail 235 Defence raised a number of suggested inconsistencies in the detail of [AL]’s evidence, including, but not limited to, the precise detail of clothes being worn by [AL] during certain acts of abuse, what particular video game was being played at the time, or the weather at the time. Inconsistencies on peripheral matters such as these is of little moment in an overall assessment of this particular witness in this particular case. An overall assessment of [AL]’s evidence reveals a capacity to recount a satisfactory amount of surrounding detail, which lends support to her account of the sexual offending alleged. In terms of the criticisms levelled about other asserted absence of detail, it is hardly surprising that a witness who was a 416 T125.21-35. -- 62 of 87 -- 63 young child at the time of the incidents being spoken about has something of a less than perfect recollection as to the impugned lack of details. Difficulty in recalling these details does not materially adversely impact on the credibility and reliability of [AL], particularly when [AL] was often able to relevantly provide appropriate surrounding detail. Contact with police and other complaints 236 The contact [AL] had with investigating police was the subject of extensive cross-examination. It is clear that [AL] had intermittent contact, particularly via email with Detective Bateman. In this regard, there were some disclosures, such as [AL] alleging an incident where her grandmother, [SD], made inappropriate contact with her leg that became the focus of criticism. This disclosure found its way into an email, as opposed to a witness statement. I regard this as peripheral and immaterial to an assessment of the complainant’s evidence. 237 A central theme of the defence case was that the complainants, [AL], [SB] and [ID] colluded and conspired to bring false allegations of sexual offending against the accused. At this stage of these Reasons, I will deal with this issue as it relates to [AL]. 238 [AL] was consistent in her denials of exchanging detail about the allegations with [SB] and [ID]. [AL] stated that she was uncomfortable sharing the content of her witness statement with [SB] and denied speaking in any detail of the allegations advanced by her.417 239 [AL] denied sharing any detail via email and whilst there may have been other online communications between [AL] and [SB], those communications did not descend into detailed discussions of the allegations against the accused. [AL] denied any plan with [SB] to have the accused charged and was surprised when she discovered [SB] had ‘made a statement’.418 240 The denials of [AL] on this topic were consistent and authentic. Any suggestion of collusion, collaboration or in depth discussion about any detail as to the allegations on the part of [AL] is not supported by the evidence. Family photographs 241 [AL] was cross-examined about the contents of various photographs taken over the course of family interactions throughout and beyond the period of alleged offending. As I understand the general tenor of the defence suggestions to [AL] and associated argument advanced, what was depicted in the photographs ran contrary to the allegations of abuse and mistreatment alleged by [AL]. 242 True it is that many of the photographs capture what could generally be described as happy family memories, but this is entirely unexceptional in the 417 T246. 418 T248.34-35. -- 63 of 87 -- 64 context of childhood sexual offending, particularly when, in the context of this case, a consistent and entirely acceptable theme was that [AL] did not understand the nature and gravity of the actions of the accused towards her for a significant period of time. 243 The images and associated evidence of [AL] on this body of evidence, in the circumstances of this case, does not adversely impact upon [AL]’s credibility and reliability. Evidence of AL regarding wedding of [JD] to [DL] 244 [AL] gave evidence confirming that she included in her affidavit provided to police on 13 July 2019 a detailed description of her recollection of her mother’s wedding to [DL]. Cross-examination on the affidavit revealed that [AL] described this as being one of her first memories and that she was about two years of age at the time. Cross-examination elicited brief detail of [AL]’s participation in the wedding, including walking down the aisle, some of the people who were present and her feelings towards some of the guests. 245 [JD] gave evidence that [AL] was too young to participate in [JD]’s wedding to [DL], being about two years of age, but that she did have a role in [AL]’s subsequent wedding to [PB]. [AL] was about five and a half years of age at the time of the subsequent wedding. [JD] confirmed that [AL] did participate at the subsequent wedding in the role of flower girl. 246 [DFL] gave evidence consistent with that of [AL], that [AL] was involved with the first wedding as ‘a little flower girl’. 247 Defence counsel emphasised the conflicting evidence regarding [AL]’s purported recollections of the first wedding and that of [JD] and Dr Takarangi’s opinion that: Around age 2 is within the period of early childhood amnesia for which people generally have no memories … 248 I accept that [AL] is unlikely to have any memory of the first wedding. She was too young at the time to recall the event. Notwithstanding this, I note the evidence of [DFL] tends to support the evidence of [AL] on this specific topic. Accepting as I have that [AL] was simply too young to recall the events of the first wedding, it does not follow that [AL] has told deliberate lies as upon this topic. The explanation for this inaccuracy is, in my view, readily explained by [AL] confusing the two weddings of her mother. By the time of the second wedding, [AL] was about five and a half, she was a flower girl in the wedding, which I infer as a matter of common human experience included a role of [AL] walking down the aisle and, by this time, [AL] states the accused had commenced sexually abusing her, which tends to explain her stated feelings towards the accused at the time. -- 64 of 87 -- 65 249 Whilst this inconstancy reveals a capacity on the part of [AL] to confuse matters relevant to the weddings of her mother, including matters of detail, those mistakes are explicable by reference to the matters I have referred to above. I have careful regard to the submission advanced by defence that this is an example of [AL] detailing a false memory, thereby terminally impacting upon [AL]’s credibility and reliability. I am of the view that whilst this body of evidence does provide an example of [AL] detailing a false memory, this false memory is confined to and explained by confusion between the first and second weddings of her mother. It is notable that these occasions occurred within a relatively short period of time when [AL] was young. Having regard to the entirety of the evidence, I do not regard the deficits of [AL] on this topic as significantly undermining her credibility or reliability in a material way. Uncharged acts of a sexual nature 250 As to [AL] the prosecution suggested the following uncharged acts were acts supportive of [AL]’s evidence generally and was relevant to an assessment generally of the family’s tolerance of the accused’s behaviour:419 1. [AL] sat on the accused’s lap from time to time. There was one occasion of her feeling something hard. However, [AL] was too young to know what this was (lap-sitting evidence).420 2. [AL] recalled a few occasions where the accused attempted to take [AL] to the bathroom. However, [SD] intervened on each occasion. On these occasions, the accused would take [AL] by hand or wrist from the accused’s bedroom to the upstairs bathroom and would lock and close the door. [SD] would then intervene (bathroom evidence).421 251 In considering the probative value of this uncharged conduct, I am not satisfied that it is sufficiently probative to warrant its admission. The lap-sitting evidence does not contain sufficient detail to lead to a conclusion that this was sexualised conduct, and whilst the bathroom evidence is suspicious, I am not satisfied it is of sufficient probative value to use it in the manner suggested by the prosecution. The evidence carries little weight and I do not propose to take it into account. Given these findings it is unnecessary for me to direct myself in accordance with s 34R of the EA in relation to this evidence. 252 Further, whilst I have not used this evidence in any way adverse to the accused, there is nothing in this body of evidence that in any way undermines the evidence of [AL]. 419 T584.7-16. 420 T241.1-13. 421 T71.14-18. -- 65 of 87 -- 66 Assessment of [AL]’s evidence generally 253 [AL]’s evidence in describing the acts of abuse upon her was detailed. Her description of the third occasion of cunnilingus in the bedroom of the accused is particularly compelling. Her description of the acts constituting the charged particulars was detailed and, on occasion, so too was her description of the surrounding circumstances. When pressed for detail which she was unable to remember, [AL] made appropriate concessions and provided acceptable explanations for shortcomings in her evidence. For example:422 Q This might be a silly question but do you know which day of the week it was, whether it was a weekday or a weekend. A Well I think I was pretty young so it's hard to say. And it was an often occurrence as well, it was to be expected pretty much every time I went over there, so yeah. 254 The description of her positioning on the bed during the acts of cunnilingus, the partial removal of her clothing, the somewhat unusual details of the first episode of being interrupted by [BD], and the second episode being observed by [SD], the nature of the sexual act being performed upon her and her lack of response was authentic. Other examples of peculiar, yet striking detail include the stark memory of one of the episodes of cunnilingus being interrupted by her urinating and another occasion of discussing with the accused what her vagina tasted like and the distinctive consequence of this enquiry. 255 I found [AL] to be an impressive witness. There was nothing in the way that she presented which causes me to doubt her honesty and reliability. She appeared to be genuine and at no time did I get the impression that she was exaggerating or doing anything other than attempting to recall events accurately. 256 I remind myself at this stage that demeanour and presentation is not be given undue weight in an assessment of honesty and reliability. Any determination of these issues can only be made having regard to the whole of the evidence, the criticisms raised by the accused during the course of the trial and whether there is support for her evidence. 257 In assessing whether the prosecution has proved count 1, I also have regard to the findings I have made in relation to count 2.423 258 Having cautioned myself about such matters, I am nonetheless left with a positive overall impression of the integrity and reliability of [AL]’s account. I found her presentation to be convincing and genuine. 259 As I have earlier acknowledged, I must consider the evidence in its totality, including any deficiencies in the detail in [AL]’s account, and the established internal inconsistencies in her evidence and as between her evidence and the other 422 T44.20-26. 423 See [308]-[317] in these Reasons. -- 66 of 87 -- 67 evidence. I have given careful thought to the criticisms identified by defence counsel during the course of closing submissions. There is nothing that causes me to doubt [AL]’s honesty or reliability about the occurrence of the accused performing the particularised acts described by [AL]. 260 There is nothing in the way that she presented or about the content of her evidence which causes me any disquiet. 261 Having accepted the evidence of [AL] beyond reasonable doubt as to the particulars of count 1, I find the accused guilty of count 1. 262 In making these findings, I make it clear that each element of each of count 1 is proved beyond reasonable doubt. 263 I have found count 1 proven beyond reasonable doubt without using the evidence of any other complainant about having been the subject of sexual abuse in any way which might assist the honesty and reliability of [AL] about the occasions of abuse the subject of count 1. The use of the evidence of [AL] on count 1 with the other complainants 264 It is necessary to address the use, if any to which I have put the evidence of count 1 in evaluating the evidence of [SB] and [ID] about having been sexually abused by the accused. Section 34P of the EA states: 34P—Evidence of discreditable conduct (1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)— (a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and (b) is inadmissible for that purpose (impermissible use); and (c) subject to subsection (2), is inadmissible for any other purpose. (2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if— (a) the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and (b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial. (3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct -- 67 of 87 -- 68 from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose. (4) Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court. (5) The court may, if it thinks fit, dispense with the requirement in subsection (4). Cross-admissibility – improbability reasoning 265 Evidence may be cross-admissible on the basis that the accounts of each complainant have such a degree of similarity that the hypothesis that they independently fabricated, imagined or are mistaken about the offending, for reasons peculiar to each complainant, is so improbable that the probative value of the evidence outweighs its prejudicial effect.424 266 If the probative value of the evidence outweighs any prejudicial effect it may have on the accused, the evidence can be admitted if the permissible use of the evidence is, and can be kept, sufficiently separate and distinct from the impermissible use, so as to remove any appreciable risk of the evidence being used for that purpose.425 267 In R v C, CA,426 Kourakis CJ described similarity of account reasoning as the clearest basis for the cross-admissibility of evidence of offending against each complainant: The clearest basis for the cross-admissibility of the evidence of offending against each complainant on the trial of the offending against the others is that the testimonial accounts of the complainants demonstrate the improbability that the conduct of which they complained was concocted or imagined by each of them independently of the others. I will refer to that basis for admissibility as the ‘similarity of account’ basis and to evidence admitted for that purpose as ‘similarity of account evidence’. The strong probative force of similarity of account evidence was explained in Hoch v The Queen (Hoch). It arises out of the improbability of persons independently imagining or concocting stories with a high degree of similarity of detail. Section 34S of the Evidence Act has removed the common law condition for the admissibility of similarity of account evidence established in Hoch. It is no longer a necessary condition of admission that the trial Judge be satisfied that there is no possibility of collusion between the complainants. That is now a factual question for the jury. The strong probative force of similarity of account evidence in the circumstances of this case can be shortly explained. If there were separate trials of the offences against each of the complainants, the primary issue would become the reliability and credibility of the individual complainant concerned. Having sought separate trials, it is very unlikely that the appellant would raise collusion with another complainant who had made similar allegations as a reason for doubting the complainant in the charges before the court. Instead, on a trial 424 R v C, CA [2013] SASCFC 137 [61]. 425 Section 34P(3) of the EA. 426 [2013] SASCFC 137 [57]-[58]. -- 68 of 87 -- 69 of the charges relating to a single complainant alone, the defence is likely to advance matters peculiar to that complainant for doubting his reliability or credibility. Those matters are likely to be accorded substantially greater weight if nothing is known of the allegations made by other complainants than if it is known that other complainants have given very similar accounts of sexual offending by the accused. The rational reason for according that defence less weight, and therefore the probative force of the similarity of account evidence, lies in the improbability that several complaints, independently made, would share the substantial similarities apparent in the accounts of the complainants, given the great diversity in human behaviours and imaginations. If the similarity of account evidence excludes the hypothesis of independent concoction beyond reasonable doubt, the similarities can only be explained by collusion on the one hand or the truth of the complaints on the other. [Footnotes omitted] 268 Regard must be had to s 34S of the EA in determining whether evidence is admissible on a similarity of account basis. Section 34S of the EA provides: 34S—Certain matters excluded from consideration of admissibility Evidence may not be excluded under this Division if the only grounds for excluding the evidence would be either (or both) of the following: (a) there is a reasonable explanation in relation to the evidence consistent with the innocence of the defendant; (b) the evidence may be the result of collusion or concoction. 269 In determining admissibility on or similarity of account basis, the evidence of the complainants need not be identical or indeed strikingly similar. Rather, as outlined by Kourakis CJ in R v C, CA:427 … The question is whether as a matter of human experience the levels of similarity between the complaints might be expected if the complainants for reasons, conscious or sub- conscious, which are peculiar to them, had independently concocted or imagined the offending which they alleged. 270 Subsequently, in MDM v The Queen,428 Kourakis CJ returned to the topic of the admissibility of similarity of account evidence: In this State, the evidence of complainants in multiple victim cases has often been held to be cross-admissible because of the improbability of complainants giving similar accounts of offending by the same person unless their accounts were true. The admissibility of the evidence on that basis has been facilitated by the statutory abrogation of the common law rule of evidence, first stated in Hoch v The Queen, which had required the trial judge to exclude the possibility of concoction before admitting the evidence of one of a number of complainants in the case against the accused on offending against another complainant. This Court has not held that the degree of similarity required to give similarity of account evidence sufficient probative value to substantially outweigh its prejudicial effect extends to the degree of similarity required to show an identity in modus operandi. It is not possible to make such a general statement. The reasoning in both is analogous but not identical. The former reasoning concerns the improbability of similar accounts of offending being 427 Ibid [65]. 428 (2020) 136 SASR 360 [14]. -- 69 of 87 -- 70 given by different complainants unless the offending actually occurred; the latter concerns the improbability of two different offenders committing offences in a very similar way. The first, significant, improbability which arises in evaluating similarities in the independent accounts of different child complainants, is that two or more children known to the accused both happen to fabricate or imagine that they have been sexually abused and/or happen to fabricate or imagine, that the offences were committed by him. The significance of that improbability may be affected by the number of other persons known to them to whom they might have attributed the claimed offending. However, any additional similarities in the offending build on that initial improbability. For those reasons, I do not accept that, to be sufficiently probative to substantially outweigh its prejudicial effect, similar account evidence necessarily requires a greater degree of similarity than is required for propensity evidence. [Footnotes omitted] 271 As Kourakis CJ emphasised in R v C, CA,429 an assessment of the probative force of similarity of account evidence requires a focus upon those similarities and dissimilarities that bear upon the improbability of independent concoction, fabrication or imagination. In the circumstances of that case, for example, the fact that the three complainant boys were of a similar age, did not have a father figure in their lives, were all acquaintances of the accused’s foster son, and all accompanied the accused on outings, were held not to be probative similarities for this purpose. 272 This emphasis was repeated in DES v The Queen,430 and MDM v The Queen.431 In MDM v The Queen, Peek J explained the need to focus upon similarities in the narrative of the allegations made by the complainants rather than personal characteristics of the complainants or the accused.432 273 The narrative accounts need not be strikingly similar to attain the requisite probative force.433 In considering similarities in the narratives of the allegations, the focus must be on the ‘peculiarity and detail’ of those narrative accounts,434 rather than features that are commonplace and unremarkable.435 As the Court said in Phillips v The Queen:436 The similarities relied on were not merely not ‘striking’, they were entirely unremarkable. That a male teenager might seek sexual activity with girls about his own age with most of whom he was acquainted, and seek it consensually in the first instance, is not particularly probative. Nor is the appellant’s desire for oral sex, his approaches to the complainants on social occasions and after some of them had ingested alcohol or drugs, his engineering of opportunities for them to be alone with him, and the different degrees of violence he employed in some instances. His recklessness in persisting with his conduct near other people who might be attracted by vocal protests is also unremarkable and not uncommon. 429 [2013] SASCFC 137 [93]. 430 [2020] SASCFC 32 [70]. 431 (2020) 136 SASR 360 [14]-[16] (per Kourakis CJ, Kelly J agreeing) and [128]-[135] (per Peek J). 432 Ibid [135]. 433 Phillips v The Queen (2006) 225 CLR 303 [58]. 434 R v Bonython-Wright (2013) 117 SASR 410 [50]. 435 Sexton v The Queen [2022] SASCA 73 [121]. 436 (2006) 225 CLR 303 [56]. -- 70 of 87 -- 71 274 In DES v The Queen, Doyle J said that the focus must be upon the degree of similarity between the complainants’ allegations of abuse, rather than the number or regularity of the instances of alleged abuse. Importantly, the similarity must be between the complainants’ allegations, rather than the complainants’ characteristics.437 As outlined by Peek J in MDM v The Queen:438 … the similarities to be taken into account when applying similar account reasoning are only those appearing within the narrative of allegations made by each of the relevant complaints such as to make it improbable that each complainant would have independently falsified to that same level of detail. 275 The determinative inquiry in the present case is whether the commonality and peculiarity of detail is such that the probative value of the evidence of the complainants in excluding the hypothesis of independent fabrication outweighs the prejudice associated with multiple allegations of sexual impropriety being adjudicated by the one trier of fact. 276 Here, the most prominent, but not exclusive, similarities upon which the prosecution rely are that common to the narratives of [AL] and [SB] is as follows: • that the relevant incident took place whilst the complainant was positioned on her back on the bed of the accused, with the accused kneeling or crouching from the foot of the bed; • the complainants were partially clothed and the accused had removed some of their clothing; • the accused performed the act of cunnilingus upon the complainants; and • that the complainants were effectively non-responsive to the sexual act taking place. 277 The evidence given by [AL] and [SB] as set out above demonstrates relevant and probative similarities. The evidence shares peculiarity of detail that is capable of converting the general nature of the sexual activity into a probative similarity. 278 I place little weight on the prosecution’s reliance on matters of age, and that the incidents took place while there was another person or persons in the house. These are features of the complainants account that the authorities have suggested are not particularly material to the similarity of account analysis and are otherwise largely unremarkable features of the narratives. 279 Evaluating the evidence as to the overall probative value of the similarities in the complainant’s accounts and whether that probative value outweighs the 437 [2020] SASCFC 32 [70]. 438 (2020) 136 SASR 360 [130]. -- 71 of 87 -- 72 prejudice to which I have adverted, I am satisfied that the common features, similarity or peculiarity of detail of [AL] and [SB]’s accounts identified above, are such that, as a matter of human experience, they strongly exclude the possibility of independent concoction. I am satisfied that the probative value of the evidence outweighs its prejudicial effect and I am therefore satisfied that the evidence surpasses the threshold for admissibility prescribed by s 34P(2)(a). Propensity evidence – s 34P(2)(b) of the EA 280 In this matter, the prosecution filed a Notice to Adduce Discreditable Conduct evidence. 281 As I understand the submissions of the prosecution, it is submitted that the charged and uncharged acts against each of the complainants, [AL], [ID] and [SB] is admissible pursuant to s 34P(2)(b) in that the evidence demonstrates that the accused: 1. had a sexual interest in the complainants; 2. had a willingness to act upon that interest, notwithstanding that there was a risk of detection, or other people in the same house; 3. notwithstanding his familial connection with each complainant. 282 The Notice of Intention by the Director to adduce discreditable conduct evidence relevantly states: A3. The use of the evidence said to be permissible under section 34P(2)(b) in respect of the charges is to prove that the accused had a sexual interest in the complainants, both under 14 female children, and that he had a willingness to act on that interest when the opportunity arose, notwithstanding there was a risk of detection or other people were in the same house, and notwithstanding his familial connection with each complainant. 283 I turn then to the question of whether the evidence of charged and uncharged sexual acts committed against [AL] are capable of establishing that the accused had the suggested propensity. 284 For evidence to be admissible for a propensity purpose, it must first pass the test in s 34P(2)(a) of the EA, that is, the probative value of the evidence must outweigh any prejudicial effect it may have on the accused. Further, for the evidence to be admitted for a permissible use that relies on a particular propensity or disposition of the accused as ‘circumstantial evidence of a fact in issue’, it must have strong probative value having regard to the particular issue or issues arising at trial pursuant to s 34P(2)(b) of the EA.439 439 MDM v The Queen (2020) 136 SASR 360 [9]. -- 72 of 87 -- 73 285 In R v MJJ; R v CJN, 440 Kourakis CJ made the following observations about weighing the probative value of evidence: The impermissible use identified in s 34P(1) of the Evidence Act is the drawing of an inference of guilt from the fact that the accused has engaged in other conduct which has no relevant connection to the offence other than to share the epithet discreditable. Evidence of discreditable conduct of that kind may, admittedly with some imprecision, be described as evidence of a mere, or general, propensity. Section 34P(2)(b) expressly provides for the admission of discreditable conduct evidence which shows a particular propensity or disposition of the defendant. The particular propensity or disposition must be strongly probative of the offence charged and outweigh its prejudicial effect. Discreditable conduct which has a permissible use, other than by way of demonstrating a particular propensity, need only have a probative value, whether weak, moderate or strong, which substantially outweighs its prejudicial effect. At the core of the assessment of the probative value of discreditable conduct evidence are two analytical steps. The first is to identify the particular fact which is in issue. The second is to consider how, if at all, the discreditable conduct evidence circumstantially increases, as a matter of human experience, the probability of the existence of that fact. Resorting to generalities such as ‘context’, ‘background’ and ‘underlying unity’ will seldom illuminate the analysis. [Footnote omitted] 286 The probative value of the evidence will depend on the extent to which the propensity makes more likely the elements of the offence charged. This involves a comparison between the propensity and the facts in issue. As outlined by the plurality in Hughes v The Queen:441 A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant. 287 Kourakis CJ in R v C, CA observed:442 The second basis for cross-admissibility is that the evidence showed the appellant to have a particular propensity to engage in the conduct described by the complainants. I should first explain further what I mean by a propensity basis for cross-admissibility. It is that the evidence disclosed a proclivity on the part of the appellant to abuse the access he had to his son’s friends for the purposes of gratifying his paedophilic desires. The reasoning in support of a finding of guilt based on the demonstration of a particular propensity differs markedly from similarity of account reasoning. I have explained the latter in [57]-[60] above. The former involves three essential steps in the circumstances of this case. The first step is to determine whether the evidence proves beyond reasonable doubt that the appellant committed sexual offences or other discreditable conduct against any one of the three complainants. If the jury are so satisfied with respect to at least one of the complainants, the second step is to determine whether the offending, in the context of the wider conduct, shows an innate behavioural proclivity to commit offences of the kind committed against the other complainants. If the jury are so satisfied, the third step is to take that particular propensity into account, together with the evidence directly bearing on 440 (2013) 117 SASR 81 [18]-[19]. 441 (2017) 263 CLR 338 [64]. 442 [2013] SASCFC 137 [68]-[69]. -- 73 of 87 -- 74 the other counts, in determining whether or not the totality of the evidence has proved the offending alleged against either one, or both, of the remaining complainants. Even though I have described the steps as sequential, it is permissible to consider the evidence given by two or more complainants together to arrive at both the intermediate and final conclusions. As Wells J explained in R v Sutton (Sutton), ... circumstantial evidence is admissible and probative even though its full strength is only realised when it is reinforced by the combined force of the other items of circumstantial evidence. [Footnote omitted] 288 The first step identified by the Chief Justice is satisfied. I have accepted the evidence of [AL] on count 1 beyond a reasonable doubt. The second step relies upon an assessment of whether the evidence I have accepted displays an innate behavioural proclivity to commit the offences alleged in the remaining counts on the Information. 289 The relevant propensity is for the accused to act upon the sexual interest he had in his young relatives notwithstanding the risk of detection which existed by the presence of other people in the house. I am satisfied the evidence which establishes the propensity substantially outweighs any prejudicial effect it may have on the accused. I am also satisfied the evidence establishing this propensity has strong probative value having regard to the particular issue or issues arising in the trial. In this case, those issues are the credibility and reliability of the complainants [SB] and [ID] and their evidence on counts 2, 3, 4 and 5 on the Information. 290 Evidence of a sexual act with a child, as I have accepted on count 1, is discreditable conduct. It is impermissible to use discreditable conduct, other than conduct constituting the particular count being considered, to suggest the accused is a bad person and more likely to have committed the count being considered because he engaged in discreditable conduct not the subject of the count being considered. This is the impermissible use of this evidence. I am satisfied that the evidence which establishes the propensity is and can be kept sufficiently separate and distinct from the permissible use. I remind myself that a person with the propensity I have identified may not act on that propensity at every opportunity presented. Discussion 291 I have set out in these Reasons a synopsis only of the evidence in respect of the matter. I have also summarised some of the respective submissions of counsel. I make it clear that whilst I have provided these summaries, I take into account the entirety of the admissible evidence and the entirety of the submissions of counsel. 292 In addition, I have summarised the contents of the record of interview (ROI) with the accused. The accused voluntarily participated in the interview. He did not have to answer any questions. He denied the allegations. -- 74 of 87 -- 75 293 I have described the general contents of the ROI above. Relevantly it contains details of two episodes of the accused admitting to biting the buttocks of [SD] and [AL] in what the accused suggests are innocent circumstances. The circumstances in which the accused describes apparently innocent interactions in biting the buttocks of [SD] and [AL] require further discussion. 294 As to the incident with [SB], the version given by the accused can be relevantly distilled to an occasion that when the accused was alone with the approximately 3 year old [SB] in his bedroom as a probably 20 year old, [SB] ran into his bedroom and was jumping around on his bed. 295 The accused relevantly stated to investigating police: A Well we were just messing around, she was just jumping and bouncing and carrying on and to wake me up and, and I, I finally just woke up and was like, and then I was, of [BB] actually mentioned that she was naked and I was, and she, she didn’t have anything on and I was just like ‘Well why haven’t you got your clothes on’ and it was just something like that and, and I could even hear, I think I even heard [JD] shouting from upstairs that she needed to come and dressed, or something and, and that was just about all I can remember, and we were just, oh just, it was just a quick harmless, well I bit, bit her bum because she was just, she was naked. Q So well because I, I’m not, I’m trying to understand how she came to be, where you’d be in a position where you would be able to bit her bum. So, well, was she standing, was she kneeling, was she lying down. A Well I was just sort of sitting up, getting up, to try and get up, and she was like lying down and messing around and so I just bit her bum, and she was to go and get dressed. Like it was, it was, it wasn’t, well it was just a playful gesture, it wasn’t like um, it wasn’t um, I don’t even – it was just happy. Well we weren’t being, it wasn’t like um, angry or anything like that. There was no, there was no, it was nothing to do, nothing untowards. Q Okay, and so what happened after you’d bit her bum. A Um, she was sort of told to go and get dressed, she was told to go upstairs, she was, someone was yelling from upstairs to go and get dressed, and I said she should go and get dressed, she has to go and get dressed and that was it. 296 The accused then said that [SB] was naked in his room for about 5 to 10 minutes. 297 In relation to the relevant section of the interview as it relates to [AL], the contents are as follows: DETECTIVE WARD: Q Has this sort of, what you’re describing as playful behaviour, and it’s common on the house, bit you on the butty, that sort of thing, have you done that with any of the other children. A Oh, [AL]. -- 75 of 87 -- 76 Q Okay. Do you want to talk to us about that. A Well it was just the same thing. Q Okay. Well how many times. A Once. DETECTIVE TSOULOS: Q So you’ve done the same thing to [AL]. A Yeah. Q In what circumstance was that. A It was the same thing, it was just, if was just, just a playful gesture, it was nothing. I just um- DETECTIVE WARD: Q When did that happen, [D, DJ]. A I’m not sure when it happened. Q Was it in the same two weeks. A No, it wasn’t, it was when she, just around, around the same age. Q Okay, do you remember the circumstances. A No, I just need to think, I just think- Q You’ve done pretty well. A It might’ve even upstairs, I’m not sure. I think it was just upstairs at that time. Q Whereabouts upstairs. A In the, in the back bedroom. Yeah. Q What’s in the back bedroom. A Um- Q Is that somebody’s bedroom or- A No, it was just called the back bedroom. We just store things in there, and I might’ve, I might’ve been sleep, sleeping up there, I can’t remember, because we might’ve had people from overseas over, and so we need the downstairs free and empty, and so I was staying upstairs at the time. It was, it was nothing permanent. Q No, okay, right. So, but you do recall this time when you were upstairs in the back bedroom, and it had been converted into a bedroom for yourself, and so tell us about this occasion when [AL]. -- 76 of 87 -- 77 A Um, we were playing computer game there were, we were just um, she was just lying on it playing computer games and it was just as simple as that, then and, an again she, well it was just like that, that, was the end of that. Q There’s a big leap from going from computer games to biting her on the bum. So can you tell us what happened when you playing the computer games. A Because the computer, the computers was on the floor and the TV was on the floor right next to it, next to where I was sleeping, and she was just lying, playing video games and she was dressed and, and I just harmlessly, don’t know why, I just was playing, messing around, and- Q [D, DJ], I don’t understand how you go from playing video games to biting her on the bum. A Well that’s, just that’s, that’s how, that’s how I see it. That’s just, it was a, it was nothing, it was nothing like serious, it was just an empty, and empty gesture where you just, you’re just messing around, I don’t know, it’s just- [my emphasis] 298 There are a number of aspects to the ROI that require further discussion. The demeanour of the accused during the record of interview reveals nervousness and uncertainty. There is, on occasion, what appears to be an attempt to search for what might be considered to be a satisfactory answer. The answers were often also curious at best and suspicious at worst. At this stage I make it plain that great care must be taken in relation to an assessment of the demeanour of the accused. Over emphasis on demeanour must be avoided, particularly when there may be an alternative innocent explanation for the exhibited behaviours, such as nervousness when being taxed by police upon serious allegations. 299 An analysis of the responses of the accused to questioning following his disclosure of biting [SB] on the bottom is instructive. The response of the accused following being confronted by police with performing cunnilingus on [SB] in stating that inferentially that this might be explained by an occasion when the naked 3 year old child was in his bedroom for five to ten minutes when he was “messing around” by biting [SB] on the bottom when he was waking up is, in my view, unbelievable. I do not accept this explanation proffered by the accused. 300 Similarly, I do not accept the similar incident volunteered by the accused as to a suggested interaction with [AL], which, unlike the above alleged interaction with [SB] was not charged. This disclosure related to an incident when the accused was apparently awoken by a clothed [AL] in his bedroom playing a computer game. The accused described waking and, without any satisfactory explanation, biting a similarly aged [AL] on the buttocks through her clothing. As was stated by the interviewing police officer, there is a big leap from playing computer games to biting her on the bum, and the answer emphasised in the extract from the record of interview above is, in my opinion, wholly unsatisfactory. This answer also needs to be viewed with the unsatisfactory demeanour from the video of the record of -- 77 of 87 -- 78 interview at that particular stage. Again, I remind myself against over reliance upon demeanour in an overall assessment of the version given by the accused. 301 Given the problems that exist with the record of interview, I do not accept the denials of the accused as being reasonably possibly true. Further, I am not prepared to accept that the described acts of biting the buttocks of [SB] and [AL] as being reasonably possibly true. 302 Having made these findings, this does not add to the prosecution case. It is not makeweight for the Crown. I remind myself that at all times it is for the prosecution to prove its case beyond reasonable doubt. 303 The prosecution case is solely reliant upon the evidence of each of the complainants being accepted as both truthful and reliable beyond reasonable doubt. 304 Whilst I do not have to be satisfied beyond reasonable doubt as to the reliability and credibility of every aspect of the complainants’ evidence, it is trite to say that the prosecution case stands or falls on an acceptance of each of the complainants’ evidence as to whether the sexual acts took place, beyond reasonable doubt.443 305 It is apparent from the above that the only evidence of any unlawful sexual act is the evidence given in Court. The prosecution case cannot succeed unless the complainants’ evidence satisfies me beyond reasonable doubt of the commission of the charged acts. Whilst I do not have to be satisfied beyond reasonable doubt as to the reliability and credibility of every aspect of their evidence, in light of the significance of their evidence to the prosecution case, a doubt about one aspect of each of the complainant’s reliability or credibility as regards one topic would clearly be an important consideration when considering whether I could accept the evidence on another topic or issue. 306 In evaluating the evidence of each complainants’ evidence in Court, I must not overlook that no aspect of the evidence must be evaluated without considering the whole of each complainants’ evidence and the balance of the evidence. Matters which might be said to impact adversely upon their honesty and reliability must be considered in the context of the evidence as a whole. 307 The real issue is whether the prosecution has established beyond reasonable doubt the particularised sexual acts on the Information occurred. Incident with [SB] – count 2 308 The evidence relied upon by the prosecution to prove count 2 is the narrative of [AL] and her observations of the accused performing cunnilingus on [SB]. [AL] stated that [SB], [BB] and [AL] were all present in the bedroom of the accused 443 Murray v The Queen (2002) 211 CLR 193 [57]. -- 78 of 87 -- 79 when this incident occurred. [AL] stated she was approximately 12 years old, [BB] 6 years old and [SB] 3 years old. On [AL]’s evidence, [BB] observed what was said to be occurring and [AL] left to seek assistance from her mother [JD], who ignored her. 309 [BB] in evidence stated that he would attend the Woodside property from time to time from the age of 6 upwards and would play video games in the accused’s bedroom with the accused and sometimes [AL] and [SB]. 310 [BB] stated that he never saw anything inappropriate happen at all, including when there were people other than the accused and [BB] in the bedroom. 311 [JD] gave evidence and made no mention of the incident. 312 [SB] gave evidence disclosing another instance of abuse at the hands of the accused, but did not describe this incident. 313 In considering whether the prosecution has proved count 2, I take into account all of the evidence and the findings I have made in relation to the propensity of the accused to act upon his sexual interest of the complainants. The evidence of [AL] needs to be considered in conjunction with the other evidence to determine whether the elements of the offence have been provided beyond reasonable doubt. 314 The evidence of the propensity of the accused to act upon the sexual interest he had in his young relatives, notwithstanding the risk of detection which existed by the presence of other people in the house, strengthens the prosecution case on count 2. 315 Using this established propensity in evaluating the evidence of count 2 and noting that I have not engaged in sequential reasoning excluding an assessment of the admissible discreditable conduct from my overall assessment of the evidence on this count, I harbour a reasonable doubt that arises from the overall state of evidence, including the absence of evidence from [SB] and the evidence of [BB] and [JD]. 316 I find the accused not guilty on count 2. 317 In reaching this conclusion on count 2, I have carefully considered what, if any, impact this has on my assessment of the credibility and reliability of [AL] and count 1. This formed part of the overall analysis as to whether the prosecution had proved count 1 beyond reasonable doubt. Whilst I entertain a doubt on count 2, this is to be distinguished to count 1, where [AL] was describing incidents of sexual abuse perpetrated upon her by the accused. [AL]’s evidence of describing those acts remains intact and my finding on count 2 in no way impacts upon my finding on count 1. -- 79 of 87 -- 80 Complainant [SB] Suggested lack of detail and lack of recollection Count 3 318 The prosecution conceded correctly in its closing address that [SB] ‘was admittedly much less detailed in her account’444 as to the charged offence comprising count 3. I respectfully agree with this description. Whilst [SB] came up to proof on the charged incident, it was effectively devoid of any further detail. I accept that difficulties in detail may be expected from time to time when dealing with such historical matters, however there is almost a complete absence of any contextual evidence. This is of some concern, particularly given the firm stance taken by [SB] about having been repeatedly sexually abused, yet only having ‘one solid memory’445 of any particular incident of sexual abuse. Lack of memory generally 319 The lack of memory expressed by [SB] during the course of her evidence includes and extends beyond the detail of the charged incident giving rise to count 3. 320 [SB] said that she could have been 4 years of age at the time of the incident. She admitted reconstructing some detail in her evidence, despite not having an actual memory of the reconstructed detail. 321 Moving to events closer in time, [SB] expressed an inability to recall discussions with her friend [LO] (who has a law degree), about making a report to police and the legal process, repeatedly stating that she did not recall or had no memory about the content of these conversations. 322 In terms of [SB] communicating with [ID], [SB] was at times evasive on this topic. During the course of her evidence, when being asked about the electronic communications contained in D8, the following exchange took place:446 Q But after 12 March you continued to have communication with [ID], didn't you. A She is my cousin and we were experiencing incredibly emotionally intense things and we relied on each other for emotional support from time to time. Q Now, you have before you D8, which is a Facebook Messenger conversation between you and [ID]. A Yes. Q I think I referred you yesterday to a date, 21 April on p.16 of the document. 444 T595.27. 445 MFI D8. 446 T488.24-38 – T489.1-34. -- 80 of 87 -- 81 A Yes. P.16. Yes, I can see it. Q All the conversations that occur before that date on 21 April are one continuous conversation that occurs one day between you and [ID], that's correct, isn't it. A That is correct. Q So, between 12 March and 21 April 2020, were you in communication with [ID]. A Sorry, can you repeat those dates? Q Yeah. Between 12 March 2020, the last of the email exchanges between you and the police, and 21 April 2020, when you were having the Facebook Messenger conversation with [ID], did you have any other conversations with her or any other communications with her. A With [ID], aside from this Facebook communication? Q That's right, yes. A I'm sorry, I'm not sure I understand the question. Between the dates - yes, can you repeat that? Q Let me put it in this way: between 12 March and 21 April 2020 about five weeks goes by. A Okay. Q You understand that. A Yes. Q In that five-week period, did you have communications with your cousin [ID]. A If that's the date - HIS HONOUR: Do you mean over and above this conversation? MR ENGLISH: In any way whatsoever. A Do you mean aside from this conversation that we had here? XXN Q Any communication at all, whether it be a telephone conversation, email or whether it be Facebook Messenger. A I cannot recall every conversation I've had with my cousin. Q I'm not asking you to recall every conversation, I'm asking whether or not you communicated with her during that five-week period, in any way at all. A I cannot say with certainty. -- 81 of 87 -- 82 323 Having regard to [SB]’s evidence generally, I was left with the impression that not only did the witness struggle to recall detail, but in addition, on occasion proffered an asserted lack of memory in order to escape from being pressed for detail. The above extract from [SB]’s evidence is but one example of this. [SB] regularly retreated to the Alamo of ‘I don’t know’ or ‘I don’t recall’ when being pressed for detail. Again, whilst I accept that on occasion a witness might not reasonably remember detail, I formed the distinct impression that such answers were deployed by [SB] from time to time in an attempt to thwart the cross- examiner. 324 I do not doubt that [SB] genuinely believes that she was sexually abused by the accused. However, her reliability as a witness and the other faults to which I have referred are problematic. 325 In assessing whether I can rely upon the evidence of [SB] in proof beyond reasonable doubt of count 3, in addition to [SB]’s evidence, I bring to bear the evidence of the propensity of the accused to act upon the sexual interest he had in his young relatives notwithstanding the risk of detection which existed by the presence of other people in the house. I also bring to bear improbability of account reasoning based on the accepted evidence of sexual offending against [AL] and the evidence given by [SB]. 326 The evidence of [SB] has relevant similarities with evidence that I have accepted from [AL] which I repeat here: • that the relevant incident took place whilst the complainant was positioned on her back on the bed of the accused, with the accused kneeling or crouching from the foot of the bed; • the complainants were partially clothed and the accused had removed some of their clothing; • the accused performed the act of cunnilingus upon the complainants; and • that the complainants were effectively non-responsive to the sexual act taking place. 327 There is an underlying unity between this aspect of the evidence and the evidence of [AL] is admissible on count 3 on the basis of improbability reasoning. As previously stated, the probative value of this evidence outweighs its prejudicial effect. I remind myself that it is impermissible to use discreditable conduct to suggest the accused is a bad person and more likely to have committed the count being considered because he engaged in discreditable conduct not the subject of the count being considered. I am satisfied the evidence of discreditable conduct can be kept sufficiently separate and distinct from the impermissible use. -- 82 of 87 -- 83 328 The two additional items of evidence, propensity and improbability of account reasoning, significantly strengthen the case of the prosecution against the accused on count 3. I have specifically not engaged in sequential reasoning, excluding an assessment of the admissible discreditable conduct from my overall assessment of the evidence on this count. Factoring in the established propensity evidence, similarity of account reasoning and having regard to all of the admissible evidence on count 3, I harbour a reasonable doubt about the credibility and reliability of [SB]. 329 I find the accused not guilty of count 3. Record of interview of accused Count 4 330 Proof of count 4 in relation to the complainant [SB] relies on what is said to be an admission by the accused to the offence of aggravated indecent assault by him biting [SB] on the buttocks. As I understand the final position advanced by the prosecution, were the Court to find that the accused had the propensity suggested pursuant to s 34P(2)(b), that is for the accused to act upon the sexual interest he had in his young relatives notwithstanding the risk of detection which existed by the presence of other people in the house, this propensity combined with the suggested admission is sufficient to prove this charge. 331 In order to prove this offence, the prosecution needs to prove beyond reasonable doubt that the statement of the accused “I bit her bum” amounts to evidence of an indecent assault. This necessarily requires that if the physical act is proved, it must also be proved that the act occurred for a prurient purpose. 332 In the circumstances of this case, I have already explained why I am not prepared to accept the version proffered by the accused in the ROI. In my view, the explanations advanced by the accused in terms of biting first [SB] and second [AL] on the buttocks are nothing more than an attempt to distance himself from the allegations. They do not rise to, nor has it been suggested by the prosecution that these statements rise to lies as consciousness of guilt. It follows that I do not accept the version advanced by the accused of biting the buttock of [SB]. This act is not proved. However, even if I were to accept the circumstances described by the accused as biting [SB] on the buttock (which I do not), when viewed in the context of my finding that the accused had the proved propensity above and taking into account this proven propensity which strengthens the prosecution case, a global assessment of the evidence relevant to this count would not exclude as a reasonable possibility that the impugned conduct occurred without a prurient purpose. 333 I find the accused not guilty of count 4. -- 83 of 87 -- 84 Complainant [ID] 334 I repeat the particulars constituting count 5: a) rubbing his penis against her bottom on more than one occasion; b) touching her vagina on one occasion; c) causing her to touch his penis on one occasion; d) causing her to perform fellatio upon him on more than one occasion; e) touching her thigh on one occasion; and f) inserting his finger into her vagina on one occasion. 335 [ID] did not come up to proof on particular (c), a fact that was correctly conceded by the prosecution. 336 [ID] affirmed an affidavit on 22 February 2019 setting out her recollection of events relevant to this trial. This affidavit consisted of 18 pages. It was signed at the foot of each page. At the time of signing, [ID] read through the document and was satisfied of the accuracy of its contents. 337 In that affidavit, [ID] deposes: • she had no memory of the accused doing anything inappropriate to her; • she never witnessed the accused doing anything inappropriate with another child; • she never really had much to do with the accused, and if she did, it would be at family events at which she doesn’t remember any one-on-one contact between them. 338 In evidence before this Court, [ID] gave a significantly different version, including the following: • she was sexually abused by the accused over a lengthy period of time in a multiplicity of ways (as set out generally in the particulars to count 5, save for particular (c) upon which she did not come up to proof); • she witnessed the accused causing another child ([SB]) to perform fellatio upon him; • she had a lot to do with the accused, in private with one-on-one contact, often when abuse would occur. 339 It is self-evident that there are significant discrepancies between the out of court statement of [ID] in the form of her affidavit of 22 February 2019 and her -- 84 of 87 -- 85 evidence. The difference, quite frankly, could not be more striking. The prior inconsistent statements go to the very heart of the particulars underpinning the charge brought against the accused in relation to [ID]. Explanation for the change in position 340 [ID] gave evidence that her explanation for not having previously remembered the acts of abuse was due to repressed memories.447 [ID] explained that she experienced a ‘trigger event’ in April 2020 watching a television program called ‘Archer’ and then subsequently watching another television program called ‘Drawn Together’. [ID] described watching these programs at home with her husband and a friend which precipitated the realisation of detailed memories of childhood sexual abuse at the hands of the accused. 341 [ID] stated that, whilst watching the television, she intuitively understood that she was having a trigger memory. 342 The report of Dr Takarangi was relied upon by defence to call into question [ID]’s claim of recovered memory. The report (Exhibit D13) was tendered on the defence case by consent, as was the CV of Dr Takarangi (Exhibit D14), setting out the qualifications and experience of the author. Neither the report, nor the qualifications of the author were challenged by the prosecution. 343 The opinions expressed by Dr Takarangi were limited to a general opinion on issues based on the evidence. Dr Takarangi could not make a statement of the likelihood of the opinions expressed to the particular circumstances of this case. 344 Relevantly to the evidence of [ID], Dr Takarangi opined: One of the earliest incidents of abuse that [ID] reports is when she was aged 2 (or possibility younger). In this memory, [ID] recalls being taken to a room, laid down, having her nappy changed, and experiencing pain in her vagina, around age 2 is within the period of early childhood amnesia for which people generally have no memories … [ID] appears to believe that her memory was blocked or repressed, and to believe in the process of recovering memories ... As discussed … there is no scientific evidence that memory operates in this way; but believing that it does operate in this way may encourage a person to accept recovered memories as accurate … [ID] has also discussed her recovered memories with her husband, with other family members, and was exposed to [AL]’s allegations via family members when she was around 12 years old. [ID] has engaged in some other more intentional ‘memory work’, for example by watching television shows from childhood that she believes to have triggered her memories. 345 Dr Takarangi made further observations relevant to an assessment of [ID]. However, I regard those extracted above as being most relevant. 447 T394.27-30. -- 85 of 87 -- 86 346 I accept the unchallenged evidence of Dr Takarangi set out above. This creates difficulties in accepting the explanation proffered by [ID] as to the stark inconsistencies given in her out of court statement and her evidence given in court. 347 I do not doubt that [ID] genuinely believes that she was sexually abused by the accused. This does not serve as a panacea for the deficiencies in her evidence. 348 I am not prepared to accept the explanation proffered by [ID] as to the inconsistencies discussed above. The inconsistencies are significant in terms of content and significant in terms of a change in position. As the prosecutor candidly, and with respect, correctly conceded during the course of his closing address, ‘there’s not much I can say that is likely to resolve the doubts that surround [ID]’s evidence’.448 349 In assessing whether the prosecution has proved count 5 beyond reasonable doubt, it is necessary to consider all of the evidence, including the propensity evidence. I have specifically not engaged in sequential reasoning, excluding an assessment of the admissible discreditable conduct from my overall assessment of the evidence on this count. 350 The propensity I have identified earlier, namely is for the accused to act upon the sexual interest he had in his young relatives notwithstanding the risk of detection which existed by the presence of other people in the house, applies to an assessment of the evidence of [ID]. 351 Using this propensity as a piece of circumstantial evidence in evaluating the evidence of [ID] on count 5, which strengthens the prosecution case and taking into account all of the admissible evidence as to this count, I harbour a reasonable doubt as to the reliability of [ID]. 352 I find the accused not guilty of count 5. Conclusion 353 I find the accused: 1. guilty of count 1; 2. not guilty of count 2; 3. not guilty of count 3; 4. not guilty of count 4; and 5. not guilty of count 5. 448 T590.27-28. -- 86 of 87 -- ANNEXURE A -- 87 of 87 --