[2025] SADC 115

Prosecution: R Counsel: MR G DUDZINSKI – Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: N P Counsel: MS J POWELL SC, WITH HER MS S DOYLE - Solicitor: MS LISA SCHUTZ Hearing Date/s: 11/08/2025 to 15/08/2025 File No/s: DCCRM-19-1316 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 N P Criminal Trial by Judge Alone [2025] SADC 115 Reasons for the Verdict of her Honour Judge Fuller 19 September 2025 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL ABUSE OF A CHILD Accused charged with one count of sexual abuse of a child – complainant was his biological daughter – offending alleged to have spanned 1997-2008 and occurred in a cabin in a caravan park in which the accused was staying after he separated from the complainant’s mother, the family home when he babysat, and a house he lived in at Price – complainant described sexual abuse occurring from the age of three until she was around 12 years old including the accused showing her adult pornography on computers and other devices – initial complaint to best friend when teenager – prosecution relied upon conversations between accused and complainant’s mother when she confronted him with the allegations as implied admissions, together with accused’s financial contribution to the fees for the complainant’s psychological counselling - accused participated in record of interview in 2018 in which he denied the alleged offending but admitted he gave money to his ex-wife for the complainant’s counselling fees and had conversations in which she accused him of sexually abusing her daughter – accused’s father gave evidence in the defence case regarding the timeline of renovations at the house in Price together with documentary evidence refuting the complainant’s account of the location and timing of the offending in that house. Held: Number and nature of proved prior inconsistent statements, internal inconsistencies and inconsistencies with other evidence accepted as accurate and reliable left LM’s evidence alone as an unsatisfactory foundation for a finding of guilt beyond reasonable doubt – evidence of conversations with complainant’s mother and financial contribution to counselling fees not capable of amounting to implied admissions – accused’s denials in record of interview reasonably possibly true – evidence of accused’s father compelling and preferred – complainant’s account of alleged offending at house in Price unreliable. Verdict: Not guilty. Juries Act 1927 (SA) s 7; Criminal Law Consolidation Act 1935 (SA) s 50; Evidence Act 1929 (SA) ss 34CB, 34M, 34P, 34R, referred to. -- 1 of 68 -- R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; R v Cassebohm (2011) 109 SASR 465; Kendall v The Queen [2024] SASCA 54; De Silva v The Queen (2001) 127 A Crim R 116; R v Salahattin [1983] 1 VR 521; R v Christie [1914] AC 545; R v Maiolo (No 2) (2013) 117 SASR 1; R v W, PK [2016] SASCFC 5; R v R, PA [2019] SASCFC 19, applied. -- 2 of 68 -- R v N P [2025] SADC 115 The charge 1 The accused was charged on Information with the following offence: Statement of Offence Sexual Abuse of a Child (Section 50 (1) of the Criminal Law Consolidation Act, 1935) Particulars of Offence [The accused] between the 16th day of October 1997 and the 16th day of October 2008 at Virginia, Williamstown and Price, maintained an unlawful sexual relationship with [LM], 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 more than one occasion, b) Touching her vagina on more than one occasion, c) Kissing her on the mouth on more than one occasion, d) Inserting a finger into her vagina, e) Performing and act of cunnilingus upon her on more than one occasion, f) Causing her to touch [the accused’s] penis on more than one occasion, g) Rubbing his penis on her on more than one occasion, h) Causing her to watch pornography on more than one occasion. The plea 2 The accused pleaded not guilty and elected for trial by Judge alone. I heard the trial without a jury. I now publish my reasons for the verdict I am about to deliver. Voir dire 3 By interlocutory application dated 10 August 2025, the accused sought the following orders: 1. An order excluding any evidence of the accused ‘walking out on his family’ or the circumstances of the breakup of the marriage generally. 2. An order excluding any evidence of the accused allegedly threatening to commit suicide. 3. An order excluding evidence of a telephone conversation or text messages between the accused and the complainant’s mother in which the allegations were put to the accused, -- 3 of 68 -- [2025] SADC 115 2 and he said he could not remember and also as to the transfer of $1000 into the complainant’s bank account for mental health treatment. 4. An order excluding the evidence of the complainant’s mother locating pornography in the form of VHS tapes and magazines in the accused’s home in Price and their family home at Williamstown. 4 By agreement with counsel, consideration of paragraph (1) was deferred. It was agreed that the fact of the breakdown of the marriage was relevant as part of the factual matrix and the general circumstances and dynamics of the family unit. Whether the evidence had any additional relevance to the likelihood of the accused engaging in the conduct alleged (that is, whether his alleged lack of care and concern for the children generally and his, at times abusive behaviour towards them, rebutted any inference that he would not have sexually abused his daughter) would be a matter counsel would address in closing submissions once the evidence had been adduced. 5 I granted the application for an order excluding any evidence of the accused allegedly threatening to commit suicide. The accused admitted in his record of interview that he had mental health problems and had sought treatment for them. He denied attempting to commit suicide. The prosecution sought to lead evidence from the complainant’s mother that during a telephone conversation with the accused in which she accused him of sexually abusing the complainant he threatened to commit ‘another’ suicide. The complainant’s mother said that the accused had threatened suicide on multiple occasions. In my view, the probative value of this evidence was negligible. A threat to commit suicide when confronted with an allegation of sexual abuse could not, in the circumstances of this case amount to an implied admission of the offending. The accused had admitted mental health problems and had threatened suicide for unrelated reasons on prior occasions. Threatening to commit suicide in the face of an allegation of sexual abuse is just as consistent with innocence as it is with guilt. 6 I granted the application to exclude evidence of pornographic magazines and VHS tapes. The pornography in question was adult pornography but was in a medium that was different from the medium on which the complainant alleged she was shown pornography by the accused. The prosecution case was that the accused showed the complainant adult pornographic images or films on his phone or a computer. The prosecutor argued that the fact that the accused had previously been in possession of adult pornography depicting a man and woman having sexual intercourse, made it slightly more likely that the accused showed the complainant adult pornography of the same type. In my view, the probative value of this evidence was slight. The possession of adult pornography by a heterosexual adult male is not necessarily unusual or unique. The possession of a form of adult pornography in magazines or on VHS tapes does not have any probative value with respect to the issue in dispute regarding particular (h) of the charge. 7 I refused the application with respect to the telephone conversations and text messages between the accused and the complainant’s mother. In doing so I had -- 4 of 68 -- [2025] SADC 115 3 regard to R v Salahattin [1983] 1 VR 521 for the principle that an allegation is not admissible in evidence against an accused person unless the circumstances are such as to leave it open to the jury to conclude that the accused, ‘having heard the statement and having had the opportunity of explaining or denying it, and the occasion being one upon which he might reasonably be expected to make some observation, explanation or denial, has by his silence, his conduct or demeanour or by the character of any observations of explanations he thought fit to make, substantially admitted the truth of the whole or some part of the allegation made in his presence’ or that he has so conducted himself as to show a consciousness of guilt.1 8 Whether that inference can be drawn depends on the coalition of a number of facts: 1. Whether the statement was heard by the accused. 2. Whether the accused understood the statement. 3. Whether the facts stated were within the personal knowledge of the accused. 4. If the matters set out above are established, whether the circumstances were such that a dissent by the accused would in ordinary experience have been expressed by the accused if the statement put to him was not correct.2 9 It is not what is said to an accused person that is admissible, but rather it is an accused person’s response, by way of silence or conduct, from which an inference might be drawn that he or she has acknowledged the truth of the statement or shown a consciousness of guilt.3 10 In my view, having been confronted with the allegation that he had been sexually abusing his own daughter, the response ‘I can’t remember’ without any rejection of the allegation is evidence from which an inference might be drawn that the accused has substantially admitted the truth of the allegation put to him. Further, the agreement to pay and the payment of fees for counselling said to be required to address the effects of the sexual abuse is evidence from which the same inference might be drawn. Overview of the prosecution case as opened on 11 The prosecution case was that the accused maintained an unlawful sexual relationship with the complainant, his daughter, LM. LM was born on 17 October 1993. Her mother was AM, and she had a brother TM who was born in 1990. The family initially lived in Tasmania although the accused left the family home for a period of time. The relationship between AM and the accused was rekindled, and 1 (Ibid) 527, 35-45 (McInerny and Murray JJ). 2 527-528. 3 R v Christie [1914] AC 545 at 554 (Lord Atkinson); R v Salahattin [1983] 1 VR 521 at 528 (McInerney and Murray JJ). -- 5 of 68 -- [2025] SADC 115 4 the family then moved to South Australia, settling initially at Williamstown in a rental property and then purchasing a house. Shortly after the purchase of the house, the relationship ended. The accused moved into a caravan park in Virginia. LM and her brother TM visited the accused at his cabin in the caravan park, and it was there that the first unlawful sexual act occurred. LM alleged that during one visit on a warm day, the accused shut the curtains in his bedroom and started touching her chest saying, ‘what’s this?’ He then touched her vagina and performed cunnilingus on her. When he finished, he told LM not to tell anyone about what had happened. 12 After this, the unlawful sexual acts took place in the family home in Williamstown when the accused would occasionally look after the children when their mother was working as a registered nurse. The first unlawful sexual act in the family home occurred in the living room after the accused had sent TM outside. He then sat next to LM on the couch, touched her on the chest area and kissed her on the mouth. He then started rubbing her vagina on the outside of her clothing and underwear. He then moved LM to the floor and kissed her again on the mouth and continued rubbing her vagina. 13 There was another occasion in the living room when LM was playing a video game on a Sony PlayStation. The accused again sent TM outside. He then sat on a chair in the living room and lifted LM up on top of him with her legs straddling his legs and he rubbed her against his erect penis and kissed her on the mouth. He said ‘You like it. You keep coming back for more’. He then lifted her up so that she was standing with her crotch at the same level as his face and he moved her basketball shorts aside and performed an act of cunnilingus. 14 There were also other times when LM was made to straddle the accused, and he rubbed his penis against her. There was also an unlawful sexual act that took place in her mother’s bedroom. The accused massaged LM’s back and then asked her to massage his. He then rubbed her breast area and vagina over her clothing and then underneath her clothing. He exposed his penis and guided LM’s hands onto it and made her hand go up and down. Around this time the accused started becoming verbally abusive towards LM and called her names and blamed her for things. 15 LM also alleged that in the computer room in the family home at Williamstown the accused showed her pornographic videos of a man and woman having sexual intercourse. She was around 10 years of age at the time. The accused also showed LM pornography in his home at Price. That house was purchased by the accused’s father on 17 May 2002. The accused continued to offend against LM at this home. 16 LM said that on one occasion when she was at the house in Price, the accused came into her bedroom and tried to touch her. She said ‘no’ and he left the room upset. She followed him into his bedroom and apologised. He asked her to get onto his bed and when she did, he rubbed her vagina and said, ‘you like this, don’t you’. -- 6 of 68 -- [2025] SADC 115 5 17 The first person to whom LM disclosed the offending was her childhood best friend, AR. This was when she was 13 or 14 years old. AR had noticed what appeared to be self-inflicted lacerations on LM and asked her why she had been doing this. LM told her that the accused had been sexually abusing her. 18 LM’s mother, AM, spoke with the accused by telephone around the time of LM’s twenty first birthday and asked him if he had ever sexually abused LM. His response was that he could not remember. On the prosecution case this was a lie told out of a consciousness of guilt and an implied admission. AM had a later conversation with the accused in which she told him that LM was obtaining counselling as a result of the sexual abuse to which he had subjected her and asked him to make a financial contribution. He did not make any admissions in this conversation, but he subsequently made a financial contribution, and the prosecution relied upon that evidence as an implied admission. Elements of the offence 19 To prove the charge of sexual abuse of a child, the prosecution must prove beyond reasonable doubt that: • The accused knowingly maintained a relationship with the complainant. This element requires more than proof alone of the commission of two or more unlawful sexual acts. • Whilst that relationship was in existence, the accused intentionally committed two or more unlawful sexual acts with, or toward, the complainant. • At the time the accused committed two or more unlawful sexual acts, she was an adult. • At the time the accused committed two or more unlawful sexual acts, the complainant was a child. 20 An unlawful sexual relationship is a relationship in which an adult engages in two or more unlawful sexual acts with a child over any period. 21 Child is defined in s 50 CLCA to include a person who is under 17 years of age. 22 An unlawful sexual act is any act that constitutes or would constitute, (if particulars of the time and place at which the act took place were sufficiently particularised) a sexual offence. 23 In this case, the unlawful sexual acts alleged in the particulars of the charge are as follows: • Particulars (a) – (c), (g): Indecent assault. • Particulars (d) and (e): Unlawful sexual intercourse. • Particulars (f) and (h): Procuring an act of gross indecency. -- 7 of 68 -- [2025] SADC 115 6 24 To prove the offence of unlawful sexual intercourse the prosecution must prove beyond reasonable doubt: • The accused had sexual intercourse with the complainant. • The complainant was a child. 25 Sexual intercourse is defined as including the penetration of a person’s vagina, labia majora or anus by any part of the body of another person and includes an act of cunnilingus. 26 An indecent assault is an assault accompanied by, or committed in, circumstances of indecency. The prosecution must prove an assault. An assault is the intentional and unlawful application of force to another. The prosecution must prove the assault was accompanied by, or committed in, circumstances of indecency. There must be a sexual connotation. Whether an assault is indecent is for me to determine by reference to prevailing community standards of what is considered indecent. A child cannot consent to an indecent assault. 27 To prove the charge of procuring an act of gross indecency, the prosecution must prove beyond reasonable doubt that the accused procured the complainant to perform an act in circumstances which make it grossly indecent. It must be proved that the complainant was under 16 years of age at the relevant time. It must be something more than minor or trivial indecency. The conduct must be such as to be characterised not only as indecent, but as grossly indecent. Consent is no defence. 28 It must be proved that the accused procured the complainant to perform an act (in this case causing the complainant to masturbate his penis and causing her to watch pornography in his presence) and that he procured the act intentionally. 29 It must be proved that causing a child to touch an adult’s penis and causing a child to watch pornography in the circumstances is not only indecent, but grossly indecent. 30 Indecency carries with it a sexual connotation. ‘Indecency’ means some form of sexual conduct which is indecent having regard to the complainant’s age, the accused’s age, the circumstances of the alleged conduct and the contemporary standards of morality and decency of right-thinking members of the community. It must be proved that the proved act was not only an indecent act but was a grossly indecent act. In this context, the word gross means something that is more than minor. It must be grossly indecent by reasonable, contemporary standards. Issues in dispute 31 The only issue in dispute was whether the unlawful sexual acts were perpetrated by the accused. -- 8 of 68 -- [2025] SADC 115 7 General directions 32 The accused elected for trial by Judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v G [2015] SASC 186, whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in a number of authorities: see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; and AK v The State of Western Australia (2008) 232 CLR 438 per Heydon J. 33 The general directions were summarised by Lovell J in R v G. They are as follows: As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence. The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged. The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise. The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt. I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent, and I must find a verdict of not guilty. 34 The accused did not give evidence. I will draw no adverse inference against the accused for exercising his right to remain silent. The accused called his father to give evidence and tendered various documents. I will treat his father’s evidence in the same way as any other witness in this trial. The evidence 35 I now turn to consider the evidence in detail. Agreed facts 36 The following facts were agreed in Exhibit P1: -- 9 of 68 -- [2025] SADC 115 8 Dates of Birth 1. [The complainant] was born on 17 October 1993. 2. [The accused] was born on 15 May 1963. Housing Records 3. [AM] and the accused purchased 45 Eva Street WILLIAMSTOWN on 14 March 1997. 4. The accused’s father purchased 7 Clemintina Street Price on 17 May 2002. Schooling Records 5. [The complainant] attended Williamstown Preschool in 1998. 6. She attended Williamstown Primary School from 1999 - 2003. 7. In 2004, [the complainant] moved to St Jackobi Lutheran School in Lyndoch. Divorce and Family Court Order 8. A Family Court order in relation to division of property and the custody of the children was made on 22 September 1999. 9. The certificate of divorce was issued on 16 May 2003. Bank Account Transfer 10. On 31 January 2018 the accused transferred $1000 electronically from his bank account to the bank account of [AM]. LM 37 LM gave her evidence accompanied by a court companion and, for some, but not all of her evidence, with a one-way screen erected between her and the accused. I will not allow those special arrangements to influence the weight I give to her evidence and nor will I draw any adverse inference against the accused. 38 LM said her parents were AM and the accused. She had one sibling, her brother TM who was three years older than her.4 Her grandparents were BP and EP. LM said the family moved from Tasmania to South Australia when she was about three years old. They first lived in a rental property on Yettie Road, Williamstown for about a year. They then moved to Eva Street, Williamstown. She went to Williamstown Primary School and then in year five to St Jackobi School. She then went to Faith Lutheran High School in Tanunda and completed year 11 and 12 at Birdwood High School.5 39 A floor plan and photographs of the home at Eva Street tendered: Exhibit P2. LM said she was in bedroom 1 and TM in bedroom 2. The photographs were not 4 T 33. 5 T 34. -- 10 of 68 -- [2025] SADC 115 9 taken at the time she was living there but were produced for the purposes of selling the house.6 40 After the family moved into Eva Street, LM’s parents separated.7 The accused moved into a cabin in the Virginia Caravan Park. At this time, AM was working and when she was at work, LM’s grandmother MM would look after them. If she was not available, she and TM would go to day care. There were a few occasions when the accused would look after them. The majority of the time they were in daycare.8 Sexual acts in the cabin at Virginia caravan park 41 LM said that she visited the accused’s cabin in the Virginia caravan park. It was a two-bedroom cabin. Upon entry there was a kitchen area with a lounge area and at the back was the accused’s room and another room on the right-hand side. LM said there were ‘army green coloured curtains’ in the bedroom at the back, together with a double bed.9 42 LM said that when she was ‘roughly about three, four, five years old’ she and TM visited the cabin. Her mother was not there as she was working. The accused told TM to go outside, and she then described what happened next: …I remember my dad leading me to the back room where the double bed is, closing the door and I remember him shutting the curtains, that’s why I can remember the colour.10 43 LM said that he placed her onto the double bed and began touching her chest over her clothing while standing up. He then touched her underneath her clothing and said, ‘what’s this?’.11 44 When the accused touched her on the chest, she was lying flat on the bed, and he was standing up around the side of her. Her feet were towards the bottom of the bed. LM then said that when the accused remarked ‘what’s this’ he was touching her over the top of her clothing. He then went round the bottom of the bed and removed her pants and underwear. He then rubbed her vagina using his hands in a circular motion and put a finger inside her vagina. She remembered that because it was sore. She did not know what was happening at that time. When the accused was at the bottom of the bed, he used his tongue inside the labia and also on her clitoris, but she did not know for how long.12 Afterwards he said, ‘don’t tell anyone, this is our little secret’.13 6 T 36. 7 T 38. 8 T 39. 9 T 40. 10 T 40, 29-32. 11 T 40. 12 T 41-42. 13 T 43. -- 11 of 68 -- [2025] SADC 115 10 45 LM said this happened in the afternoon and she could recall ‘the sunlight was coming through the army green curtains’ which were closed. She said she was definitely pre-school age. She started pre-school when she was four years old.14 46 LM said she visited the cabin more than ten times and possibly less than twenty times. The accused also visited at Eva Street after he moved into the cabin. His visits were sporadic. Sexual activity at Eva Street in the lounge room 47 The first time something of a sexual nature happened at Eva Street was one day when LM was sitting on the three-seater couch in the lounge room. The accused sent TM outside. The couch and the carpet were blue. LM was wearing pyjamas and the accused came and sat next to her and started to rub her chest on the outside of her clothing and was kissing her on her mouth. He used his hands to rub the inside of her chest and rubbed the outside of her pants on her vagina. LM just sat there as she was not sure what was happening. The accused then moved her from the couch onto the carpet and lay next to her. LM marked P2 with an ‘x’ to indicate where she was put on the carpet and also the furniture in the room.15 The marked-up copy of P2 became Exhibit P2A. 48 When she was lying on the floor the accused began to rub the outside of her pants where her vagina was. He was lying on his side on her left-hand side and was pressing up against her.16 The accused was closest to her left arm as she was lying on her back. It came to an end when TM came back inside through the back laundry door. She did not hear him come in but saw him after the touching had stopped.17 LM explained: He just came back through the house. So, I remember dad getting dressed, he was already dressed but I got dressed and came back through. I don’t quite remember where he was but I remember seeing him.18 49 There was another occasion when she was on the single seater marked on P2 and she and TM were playing FIFA on PlayStation 1. The accused told TM to go outside, and he did not want to go. LM said ‘just let us play’ but the accused threatened TM that he would throw out the PlayStation if he did not go outside and collect some firewood. The accused then followed TM outside and she heard him lock the back door. TM tried to run around to the pergola where there was a sliding door in the dining/family room, but she could hear the accused lock that also. The accused then returned and ‘got’ her to come over with him to the single seater and he sat down on it and lifted her on top of him with her legs either side. He then 14 T 43. 15 T 45-46. 16 T 47. 17 T 48. 18 T 48, 21-24. -- 12 of 68 -- [2025] SADC 115 11 moved her up and down on top of him. The blinds were closed in the lounge room because they had been playing PlayStation.19 50 LM said he had an erection, but she did not know what that was at the time. She said it was hard on his penis, and she could feel it around her genital area. He was moving her up and down on his penis. He said to her, ‘you like this, you keep coming back for more’. LM said that was exactly what he said. LM said she was wearing her blue basketball shorts made of mesh material. He then moved her up, so her genital area was in front of his face. She could not recall having underwear on. He moved her basketball shorts to expose her vagina and used his mouth again to perform oral sex on the outside and inside of her vagina.20 51 LM did not know for how long this took place but after it finished the accused said, ‘Do not tell anyone. It’s our secret’. There were other occasions when the straddling and rubbing occurred, but she could not recall the specifics of them. There were probably less than ten occasions, both at Eva Street and at the accused’s house in Price.21 Sexual activity at Eva Street in her mother’s bedroom 52 LM said that there was an occasion when the accused took her to her mother’s bedroom and wanted to give her a massage on the bed. She did not know where TM was. The accused led her to the bedroom holding her hand or wrist. He made her go around the right-hand side of the bed. She marked this on P2. He went around the right-hand side of the bed and ‘got’ her to give him a back massage without his shirt on and then he gave her a back massage. He then moved onto the other side of the bed, and she was still lying on the side. She then explained that after the massage: …he got to the other side of the bed and then he, we were underneath the sheets and he rubbed against my chest on top of my clothing and then rubbed again on the outside of my pants around my genital region and then he touched my vagina without – on the inside of my pants and then he was originally wearing jeans and I remember him taking them off and he had – I remember specifically he had black underwear on and he removed his black underwear to expose himself…he, whilst still touching me, he grabbed my hand and put it on his penis and kept it there and made me move up and down while – with his hand.22 53 LM said that the accused had his hand on her hand and moved it up and down on his penis. His penis was erect. He was still touching her on her vagina under her clothes in circular motions. She did not recall him inserting a finger into her vagina. He was wearing jocks not boxer shorts or briefs. She could not say if he ejaculated and she did not know how it came to an end or for how long it took place.23 After it finished, the accused acted as if nothing had happened and put on 19 T 49-50. 20 T 51-52. 21 T 53. 22 T 56, 11-24. 23 T 57. -- 13 of 68 -- [2025] SADC 115 12 his underwear and jeans then started to become verbally abusive and called her names like ‘bitch’.24 54 LM said that she had basketball shorts for playing basketball. She thought she started playing basketball around age 10 but she could not be one hundred percent sure. She thought this incident happened around the same time as the one that took place when she was wearing her basketball shorts.25 55 There were at least two other times when the accused put her hand on his penis, but she could not recall the specific details. The other times occurred at Eva Street and the house in Price. The accused had been verbally abusive to her previously but on occasions not linked to sexual abuse. She said he seemed to be blaming her for the sexual abuse. He was aggressive.26 There was a lot of yelling and swearing by the accused towards her and her mother and brother. He would call TM ‘fucking stupid’ and ‘fucking dumb’.27 56 When asked about how she felt when the sexual abuse was occurring, she said ‘just unusual and weird because I don’t – again I didn’t know what it was. I didn’t know if it was normal, like I thought it was a normal thing, so’.28 Pornographic videos and images 57 LM said that bedroom 2 marked on P2 was TM’s bedroom until he moved into the retreat in the shed. His bedroom was then turned into a computer room. TM moved out of bedroom 2 when he was in his teenage years. After TM moved out, LM said there was an occasion when the accused made her go into the computer room. She could not recall who was home. He was watching pornography. LM could recall seeing pornography for the first time but not knowing what it was. It was a man and woman having intercourse and she asked ‘what is this’ but the accused told her she could not leave until it was finished. He was sitting in an office chair watching the screen and then looking at her and then watching the screen. She did not know what intercourse was at that time and she thought it was a weird thing to be shown because there were naked bodies. She thought she was around 10 years of age. She said she did not have sexual education in primary school, but she did in high school. There were more than five other occasions when she was shown pornography, but it was on different devices, on phones and computers.29 58 LM was shown pornography at Eva Street and Price. At Price it was on the accused’s phone and computer. She could recall seeing ‘boobs and pictures of women’s vaginas’ on ‘phones’ at Price. They were photographs.30 24 T 58. 25 T 58. 26 T 59-60. 27 T 61-62. 28 T 61, 8-10. 29 T 62-64. 30 T 65. -- 14 of 68 -- [2025] SADC 115 13 Sexual abuse at Price 59 When the accused first moved to Price he lived with his parents. LM visited him there, but no sexual abuse occurred in that home. The accused then moved into his own home not far away. LM drew a floor plan of that house on 9 September 2021: Exhibit P3.31 60 LM said she would normally stay in bedroom 3 and TM would stay in bedroom 2. The accused’s bedroom was the next one down.32 The floor plan she drew was from what she could recall on the last occasion she visited which was when she was around 16 or 17 years old.33 61 On one occasion when she was visiting, she was in bedroom 3 and TM was in bedroom 2 asleep. The accused came into her room and lay down on the right- hand side of the bed. He was behind her, and she could feel an erection as he pushed against her backside. She said ‘no’, but he persisted and was trying to touch her and she again said ‘no’. After the second or third time she said no, he got up out of bed and was crying and went back to his bedroom. It was night time so she assumed TM was asleep. It was dark in her room, but the hallway was illuminated, and she could see light coming in from the hallway when he opened the door.34 62 LM said the accused was making sobbing noises and covering his face. This made her feel like she had done something wrong, and she felt so guilty. The accused then went to his bedroom. She then went to his bedroom to apologise because she thought she had done something wrong. She said, ‘I’m sorry’. He told her to get into his bed. She was in primary school at this time. After she got into his bed, he turned her onto her right side, and he rubbed up against her backside. He also rubbed the outside of her pants and genital area.35 LM could not recall how this stopped or what she did next. 63 This was the last occasion of sexual abuse that LM could recall occurring at Price. She said she had a very vivid memory of it and could recall very specific details. She thought there were further occasions of abuse, but they were not as clear. They involved similar touching of her breasts and vagina.36 They did not happen every time she saw the accused but were mostly when TM and the accused were alone. It never happened when her mother was present. LM said cunnilingus occurred more than twice and the accused rubbing his erect penis against her happened more than twice. LM said that the accused made her masturbate his penis more than twice.37 31 T 66. 32 T 67. 33 T 68. 34 T 68-69. 35 T 69-70. 36 T 71. 37 T 72. -- 15 of 68 -- [2025] SADC 115 14 Cessation of alleged offending 64 The touching stopped when she was around 12 years old. She got her period when she was around 12 years old. There was definitely no sexual touching after that. She last saw the accused in person at her 18th birthday party.38 Initial complaint 65 The first person she talked to about the sexual abuse was her best friend AR. They had known each other since kindergarten. She was sure that she was 16 years old when she told AR.39 AR lived down the road from Eva Street. One day LM was outside the driveway sitting on the kerb. AR walked up to see her and LM had just self-harmed and had cuts on her arms and legs and was crying. AR asked her what was wrong, and she told her that she had been sexually abused by her father. She was sure she used the words ‘sexually abused’.40 66 LM said she did not tell anyone prior to telling AR because she had been told by the accused not to and when she was growing up, she was scared of him. She also said that she did not know that what was happening was wrong. She then gave this evidence: HER HONOUR Q At some point did you come to learn that what had happened to you was wrong. A Yes. Q How old were you when you learnt that. A [AR] told me it wasn’t right but I didn’t tell anyone until I moved out of home at around 18, 19 with my ex-partner, [BR]. I specifically told him what had occurred and he told me to go get, you know, support for that one and to report it. Q So just going back to my question. You said [AR] told you it wasn’t right. Before [AR] told you that, was that something that you realised before that. A No. To be – I know that sounds weird but I just didn’t know it was a normal thing. XN Q So how old were you when you had the conversation with [AR]. A 16.41 Cross-examination 67 LM agreed that she estimated she lived in the house at Yettie Road, Williamstown for a year because that was a common rental tenancy period. LM 38 T 73. 39 T 73. 40 T 73-74. 41 T 75, 9-27. -- 16 of 68 -- [2025] SADC 115 15 said she was three years old and remembered that it was a rental because they were only there for a short period of time and her mother bought the house at Eva Street.42 68 LM said she ‘specifically’ remembered that the caravan park was in Virginia because there was a go-cart place near Port Wakefield Road and the St Kilda playground they used to visit.43 69 LM said more often than not she and her brother would be at daycare when their mother was working; otherwise, her maternal grandmother, who lived in Evanston Gardens with her grandfather, would often pick up her and her brother from school and take them home and wait with them. There were no regular days when her father would pick them up from school.44 70 LM said that her mother would usually drive her and TM to see their father at his cabin in Virginia Caravan Park. There were only a few occasions when she slept over; there were other times they would just visit for the day.45 On some of the occasions she stayed overnight, her mother would stay as well. Her mother would share a bed with the accused when she stayed overnight. The overnight and day visits were not scheduled but were sporadic.46 71 LM said that the accused’s bedroom in the cabin had ‘army green curtains ‘kind of like a mesh material’ and there was a second bedroom next to the kitchen area which had a bi-fold dark brown door. The walls were ‘like a creamy asbestos material’.47 72 LM could remember another identical cabin right next to her father’s cabin.48 A plan of the Virginia Residential Park was tendered on the basis that LM identified cabins 97-99 as being in the vicinity of the location of the accused’s cabin: Exhibit D4.49 73 LM agreed that in her first statement to police on 6 April 2018 she said that she was three or four years old when something of a sexual nature first happened between her and the accused in the cabin.50 In her statement dated 24 September 2018, she said it happened when she was three, four or five years old. In evidence that first trial she said she was three or four years old. LM agreed that she turned three years of age on 17 October 1996.51 42 T 78-79. 43 T 80. 44 T 81-82. 45 T 82. 46 T 83, 86. 47 T 83-84. 48 T 86. 49 T 89. 50 T 90-91. 51 T 91. -- 17 of 68 -- [2025] SADC 115 16 74 LM agreed that in evidence she said that the accused led her to the bedroom in the cabin. In her statement, 24 September 2018, LM said ‘I can’t remember how I got there, but dad came over to me on the bed’. LM agreed that at the time she made her statement on 24 September 2018 she did not have a memory of how she got into the bedroom. She could not recall when she ‘got’ that memory, but it was the result of going through ‘court stuff’ and having to ‘go over it quite a few times’.52 LM agreed that in her statement dated 17 September 2020 she said, ‘Dad told me to go to the bedroom and then followed me to the room’. When asked to explain the different versions, LM said that the first time she reported it was to another police officer, and she was under a bit of stress telling her story for the first time but having to repeat it quite a number of times over the last six or seven years her memory had become quite sharp.53 75 LM agreed that she said in examination in chief that her father placed her on the bed. At the first trial she said that her father lifted her on the bed. She said those two descriptions were of the same thing. LM agreed that she said in her first statement to police that she could not remember how she got onto the bed. This was another example of how her memory had become more vivid over time and repetition so that she could now say how she got onto the bed.54 76 LM agreed that when she described the accused touching her chest underneath her top and said ‘what’s this’ she did not have any breast development. He made that comment when his hand was under her top and she was lying flat on the bed, and he was to her side and standing up.55 LM agreed that in examination in chief, she described the accused saying ‘what’s this’ at the time he was rubbing her chest over her top and later when describing the same event, said he was rubbing her chest under her top when he said ‘what’s this’. She agreed that they were different versions.56 77 LM said she could not recall her evidence in examination in chief that when she was describing the accused rubbing and then putting his finger inside her vagina, she was lying with her legs over the end of the bed.57 She agreed that this would suggest that she was at the end of the bed with her legs hanging over it. She agreed that it was when she was in that position that the accused knelt at the foot of the bed and licked her vagina. LM agreed that in her statement dated 17 September 2022, when describing this aspect of the incident she said, ‘he stayed standing until he started to rub my vagina. Once he started to do this he moved onto the bed and was kneeling on my feet’.58 LM agreed that this was different 52 T 92-93. 53 T 93. 54 T 94 55 T 94. 56 T 96. 57 T 97-98. 58 T 98. -- 18 of 68 -- [2025] SADC 115 17 from her evidence. She explained that this was because the repetition of coming to court and having to tell her story for the last six or seven years.59 78 LM agreed that at the first trial she said in evidence that the accused went around to the front of the bed, took off her pants and underwear and got on top of the bed near her feet, kneeling on her feet. LM agreed that she had not previously said she was on the end of the bed with her legs hanging over it until she gave evidence in this trial.60 79 LM said that she had a distinct memory of the army-green curtains because she saw sunlight coming through them. She also had a strong memory of the accused closing those curtains. She agreed that in her evidence at the last trial she said there were cream curtains in the bedroom. When asked to explain why she described the curtains as cream at the last trial but army green in her evidence in this trial she said, ‘that came about because I had to keep going over it, but I do remember that the walls were cream-coloured asbestos material’. LM also agreed that the first time she said anything to the police about the curtains being army green was in her statement dated 6 August 2025, the week before the trial commenced. LM agreed she had given seven statements to police in addition to the first statement.61 80 However, LM said she had recalled the curtains being green before she was due to attend court to give evidence a second time, but the hearing did not go ahead. As a result, she did not have a chance to have a ‘proper briefing’, and she did not think the curtain colour was that important.62 81 LM agreed that in examination in chief she had said she specifically remembered the accused closing the curtains. In her statement dated 24 September 2018 she said, ‘I remember looking around the room and noticing that the curtains were drawn.’ LM explained that this was a memory she had developed over time.63 82 LM said that she was scared of her father but not of her mother. She did not tell her mother what the accused was doing because he was supposed to be her carer and protector. She said she did not know what was happening at the time and she thought she had to keep it a secret because he had told her that as a parent.64 83 LM was shown a photograph of a brown velvet curtain and said she had seen something very similar at the accused’s house in Price: Exhibit D6.65 84 LM said that the sexual touching at Eva Street was possibly around the same time as the incident in the cabin. She agreed that in her statement dated 59 T 99. 60 T 100. 61 T 100-101. 62 T 101-102. 63 T 103. 64 T 105. 65 T 107. -- 19 of 68 -- [2025] SADC 115 18 24 September 2018 she said she believed it was a couple of months after the first incident.66 LM confirmed that on this first occasion of sexual abuse at Eva Street she was on the three seater couch and the accused came and sat next to her and started rubbing her chest over her clothing, kissed her mouth and then used his hands to rub the inside of her chest and the outside of her clothing on her pants and vagina. He then moved her from the three-seater lounge onto the carpet. She was unsure if he was lifting or carrying her. LM agreed that at the first trial she said that the accused told her to go on the floor. She explained the difference was because her memory sharpened or differed after the first time she gave evidence.67 85 LM agreed that in her evidence in examination in chief she had said the accused had rubbed the outside of her clothing on her pants. She agreed that in the first trial she had said that he rubbed her vagina inside her clothing.68 Her explanation for the difference was ‘having to re-tell it’.69 86 LM agreed that her evidence that she ‘got dressed’ when TM returned to the house was something she had never said before.70 She remembered it as she was giving evidence the day before.71 87 LM said that the second incident of sexual abuse at Eva Street was when she was around 10 years old and that was based on the fact that she was wearing basketball shorts and playing basketball at the time. She then said she was ‘basing it off’ the fact that she and TM were playing FIFA on PlayStation at the time.72 LM agreed that in her statement dated 24 September 2018 she told police that she believed the ‘FIFA’ incident occurred in the same year as the first occasion of sexual abuse at Eva Street.73 Her explanation was that this was before she remembered the specifics about the game they were playing at the time. At a later time, she came to recall that it was FIFA, and she was 10 years old.74 LM agreed that she had said in evidence in this trial that the accused came over to her and got her to come to the single seater and made her sit on top of him with her legs either side. She agreed that in the first trial she said that he had come over to where she was sitting and sat next to her and lifted her on top of him.75 88 LM also agreed that she had never previously said that the accused had told TM to go out and collect firewood or threatened to throw out TM’s PlayStation.76 She also agreed that in her statement of 24 September 2018 she said that the accused was on the couch and had lifted her up and put her on top of him. She 66 T 108. 67 T 110-112. 68 T 112. 69 T 112-113. 70 T 116. 71 T 117. 72 T 117. 73 T 117. 74 T 118. 75 T 118-119. 76 Subsequently, defence counsel advised LM that she had told police on 6 August 2025 that the accused had threatened to throw out TM’s PlayStation. -- 20 of 68 -- [2025] SADC 115 19 agreed that was different from her evidence that she was moved onto a single seater.77 LM agreed she had given different versions of where she was sitting and how she came to be in that position.78 89 LM explained the different versions: …Specifically in our briefing we mentioned it, that I remember specifically, because we were playing PlayStation 1 at the time with FIFA there’s remote controls with the PlayStation 1 with cords so I couldn’t have been sitting on that chair at that time. Well, I would have had to have been sitting on the ground with [TM] to reach the PlayStation console. …and I remember specifically I always played FIFA against my brother. So we would have been sitting on the ground playing against each other.79 90 LM said that she remembered that because of the briefing and going over and over it again. She said she was not sitting on either the single seater or the three- seater lounge but was sitting on the floor.80 91 LM agreed that in her statement dated 24 September 2018 she did not mention wearing blue basketball shorts and possibly not any underwear, that the accused had his mouth on her vagina or that the accused said, ‘you keep coming back for more’. The first time LM mentioned these things was on 5 August 2022.81 92 LM said she started having therapy for depression and anxiety when she was 19. She was going to Adelaide Road Psychology and originally saw Sharon but then moved to Susan Bubner.82 LM said she saw the psychologist whenever she needed to; it might be once every couple of months or once a month, but she could not give specifics. She agreed that in her statement dated 5 August 2022 she told police that in the twelve months before 5 August 2022 she had been attending therapy sessions once a month.83 93 LM said in that statement that since having therapy sessions she had unblocked memories of what the accused did to her.84 The things she mentioned for the first time in her statement 5 August 2022 were memories recovered through the therapy process. LM described this as her memory becoming sharper from talking about it in therapy or in court.85 94 LM agreed that at the first trial she was asked how the therapy unblocked memories, and she said that ‘the type of memory that actually happened was actually through a nightmare to begin with and it was reoccurring and that was just 77 T 120. 78 T 120-121. 79 T 122, 6-18. 80 T 122. 81 T 124. 82 T 125. 83 T 126. 84 T 127. 85 T 134. -- 21 of 68 -- [2025] SADC 115 20 joining on from the past memory that was already – I already spoke about so I guess through talking’. At the first trial she explained the memory to which she was referring was the ‘FIFA’ incident.86 95 LM agreed that in her statement dated 5 August 2022 she did not tell police that that it was talking through it over and over again that improved her memory.87 Rather, she told police that the memories about the FIFA incident came back as a result of being unblocked through therapy.88 LM said that this occurred over a long period of time, involving talking about the memories in therapy sessions but also outside of therapy. She underwent cognitive behavioural therapy.89 96 LM said the sexual abuse that occurred in her mother’s bedroom at Eva Street was when she was around 10 years of age and possibly around the same time as the FIFA incident. She agreed that in her statement dated 17 September 2020 she said that it happened about a year after the third offence and when she was in primary school.90 97 LM said that bedroom 3 in P3 was the room she stayed in at Price when she visited from around 2003. She could specifically recall the beds and some pieces of furniture in the house. She did not know how long her father had been living there before she visited for the first time.91 98 LM said there was a period of time when her father lived on a chicken farm near Freeling. She said she visited him there more than once and stayed over. He was living in a house with a triangle roof.92 99 LM agreed that in her first statement dated 24 September 2018 when describing the last occasion of sexual abuse which occurred at the accused’s house in Price the accused said, ‘you like this don’t you’. When it was put to LM that she had not mentioned this in evidence, she said she could not recall if she did. She denied she was confusing this incident with the ‘FIFA’ incident at Eva Street.93 100 LM said she specifically remembered that when the accused first moved into the house at Price, he had a lot of repairs done. The back room was ‘half-ruined’ until she was aged 17. LM agreed that until she gave evidence in the first trial, she had not previously mentioned repairs to the house.94 101 LM said that from the time she started visiting the Price house in 2003 she and TM had their own bedrooms and the accused’s room was up the front. There were furnishings in the house and a plastic white table in the hallway with a 86 T 133-134. 87 T 135. 88 T 147. 89 T 148. 90 T 149-150. 91 T 153. 92 T 154. 93 T 156. 94 T 157. -- 22 of 68 -- [2025] SADC 115 21 computer on it. LM always occupied bedroom 3 when she stayed in the house at Price.95 When she visited, there was a working bathroom, and she was pretty sure there was a toilet outside. There was also a functioning kitchen and a front lounge room. During the occasion of sexual abuse, she described as being the last occasion she could recall, the lounge had blue leather couches, a TV and a fireplace.96 102 When LM was about 17, she visited the Price house with a friend and stayed one night. The accused had let them have the house for the weekend and visited them when they were there.97 103 Photographs of the interior and exterior of the house at Price were tendered: D7. LM said she recognised almost all of the photographs as being taken of the house at Price.98 104 LM said she was not sure of the timeline of her first visit to the Price house, but it was around 2003. The photographs in D7 showed the bedrooms with very similar furnishings to those present when she visited. She agreed that the photographs depicted the house in a very similar way to when she visited (with the exception of page 10).99 105 A further bundle of photographs of the Price house was tendered: Exhibit D8. LM said she remembered the house without the shed as depicted in the first photograph in D8. LM said she could recall repairs to the gyprock. She agreed that she had not mentioned this prior to giving evidence at the first trial. She also agreed she was shown very similar photographs of the house at the last trial. LM accepted that until she gave evidence at the first trial she had not said anything about the house being renovated but said, ‘I did write in my plan that some of it was half ruined as well’ but then conceded that she recorded on the plan that one of the rooms was half ruined.100 106 LM agreed that when she was 16 years old and used the term ‘sexually abused’ to describe to AR what the accused had done, she intended to convey that something improper, wrong or harmful in a sexual context had happened to her. LM agreed that she must have known that the behaviour was wrong. She then gave this evidence: Q So would you agree with me that you couldn’t have been right that the reason you hadn’t said anything was because you didn’t know it was wrong, do you agree with that. A No because at that stage I was in high school so prior to that I hadn’t known any about – had education around that but also, yeah, I was older and I had best friends 95 T 157. 96 T 158. 97 T 158-159. 98 T 162. 99 T 164. 100 T 166. -- 23 of 68 -- [2025] SADC 115 22 to rely on at that point of time. I still didn’t tell anyone else other than [AR] at that stage because I was frightened. Q Did you need to have an education to know that parents sexually touching their children was wrong. A Yeah, well, I just assumed it was normal from my growing up. I know that sounds odd but that was my normal. Q Up until the age of 16 did you think it was normal. A I didn’t think anything other than I guess not the word ‘normal’ but I just didn’t know anything different.101 107 LM said she had a clear recollection of the conversation with AR on that day. She agreed that in a statement dated 17 September 2021, she told police, ‘I recently found out that I mentioned him, my father, abusing me to my friend [AR] when I was a teenager. She recently reminded me of this but said that I had only mentioned my father had sexually abused me and no further detail. I don’t really remember much about this conversation’.102 108 LM then said that the second time she had spoken to AR about the abuse was when she was 16 and it was at AR’s father’s house. LM explained that AR reminded LM that LM had already disclosed this to her when she was on the kerb at Eva Street. LM then said she was 13 years old when she was on the kerb and first disclosed the abuse to AR.103 She then gave this evidence: HER HONOUR Q So yesterday when you were describing that you said you were 16. A I did, I think. Q But your evidence is that that was in fact when you were 13. A Yes because I remember speaking to [AR] when I was 16 but that must have been the second time I spoke to her.104 109 All that AR said was ‘you’ve already told me this’ and LM then remembered the earlier conversation. LM agreed that when she first spoke to police on 6 April 2018, she said the first person she told about the sexual abuse was her boyfriend and around six years earlier. She did not mention the conversation with AR. When asked whether that was because she did not recall it, LM said, ‘I was with [B] at the time so that was my first person that I thought of that I had told in person, yeah’.105 LM then gave this evidence: 101 T 168, 31-38; T 169, 1-10. 102 T 169. 103 T 170. 104 T 171, 25-32. 105 T 173. -- 24 of 68 -- [2025] SADC 115 23 HER HONOUR Q [LM] at the time that you told the police that, did you recall that you had already told [AR]. A Not that – my first report, I didn’t. I just based off me telling [B], my ex-partner, because I was living with him at the time. So yeah. Q So, just so I’m clear, at the time the police officer asked you that question, did you remember that [AR] was the first person you’d told. A Not the first time I reported it to the police officer, no – Q Okay. A – I didn’t remember [AR]. Q So does it – do I take it from your answer that, at that time, when you were asked that question by the police officer, you didn’t, at that point, have a recollection of having two conversations with [AR] on the topic. A Not – no, not at that time.106 110 LM agreed that in her statement dated 17 September 2021 she said she was not sure what she had said to AR in the first conversation.107 111 LM said that she learnt about sexual intercourse around the time she hit puberty, which was 12 years of age. When she was made to look at pornography by the accused, she was 10 years old.108 112 LM could not recall when TM moved into the retreat and his old bedroom was converted into a room with a desk and computer. He moved in there in his teenage years. She could not be sure if it was 2009.109 LM identified herself in a photograph of the room that was being converted into the retreat for TM: Exhibit D 9. 113 LM said the accused showed her pornography on the computer and photographs on the older phones he had. LM said the accused showed her pornographic images on different phones over different years. It was put to LM that this was the first time she had said this. She said she was not sure.110 LM agreed that at the first trial she said that the phone upon which she was shown pornography was a black Nokia.111 A photograph of a Nokia phone was tendered: Exhibit D11. 106 T 175, 6-23. 107 T 214. 108 T 177. 109 T 177. 110 T 179. 111 T 180. -- 25 of 68 -- [2025] SADC 115 24 LM agreed that it was similar to the phone on which the accused showed her pornography.112 114 LM agreed that before giving evidence in this trial she had not said that the accused showed her pornography anywhere other than at the house in Eva Street and the house in Price. She said she was not sure whether it was not until 6 August 2025 that she told police that she had been shown pornography on different devices over the years. She agreed that in the first trial she did not mention the use of multiple devices.113 115 A schedule of psychological appointments was tendered: Exhibit D 10. LM agreed that the schedule showed 29 psychological appointments with one psychologist between 5 February 2016 and 17 August 2017 and 77 appointments with another psychologist between 23 January 2018 and 30 August 2022. There were also 68 appointments for ‘neurofeedback’ between 25 January 2018 and 22 August 2020. The neurofeedback appointments were on different days from the 77 therapy appointments but with the same psychologist. LM agreed that she had around 150 appointments between January 2018 and August 2020 which was significantly more than once a month.114 LM said she had not forgotten about the neurofeedback sessions when she said in evidence that the therapy was cognitive behavioural therapy. She said the neurofeedback sessions had nothing to do with unlocking memories. When asked if she had a psychology degree, she said she had a psychological science degree in social sciences and social work and she applied that in determining which particular therapy had assisted her to unlock her memories.115 116 LM explained that the cognitive behavioural therapy enabled her to change her thoughts and behaviours and cognitive thinking with her nightmares. She said that neurofeedback involved having wires attached to her head in certain regions which connected to a screen. The purpose of the neurofeedback sessions was to keep her thoughts engaged.116 117 LM disagreed that the house in Price was in the condition shown in D8 in 2003. She said she did not remember it like that.117 LM rejected the suggestion that the condition of the house as depicted in the photographs in D7 was not the condition it was in when she visited between 2003 and when she turned 10. She also rejected the suggestion that the bedroom furniture in the photographs was not there before 2007 or that there was no computer in the house until 2007. She said the first computer the accused had was not connected to the internet. At a later time, there was a computer at Price that was connected to the internet. The accused did not show LM pornography on any computer at the Price house. At the time the 112 T 211. 113 T 196-197 114 T 198-202. 115 T 202. 116 T 203-204. 117 T 205. -- 26 of 68 -- [2025] SADC 115 25 accused showed her pornography on a phone at Price she could not say if there was a computer connected to the internet.118 118 LM said there was no abuse after the age of 12 when she hit puberty. LM agreed that on 6 April 2018 she told police that the abuse occurred between the ages of three to four years through to 13 to 14 years but then stopped because of puberty.119 Re-examination 119 LM said that her last memory of the accused abusing her at Price was at a time when she remembered carpet and furnishings being there.120 AR 120 AR had known LM since she was about four years old. For a time, they were at primary and high school together.121 They were best friends growing up and are still pretty close friends.122 121 AR said when she was 14 years old, she and LM were standing out the front of LM’s house and AR noticed she had some self-harm marks on her leg. AR asked about them and why she was self-harming. LM said she was self-harming because her father touched her. AR understood that to mean touching of a sexual nature. LM was hesitant, she was looking down and was not ‘enthusiastic’ to tell her.123 Cross-examination 122 The conversation AR had with LM was outside her house on Eva Street. AR said she was also self-harming by cutting herself.124 AR was aware that LM was self-harming for a few months before this occasion. AR had also discussed with LM the trauma AR was going through prior to this occasion.125 123 LM did not use the word ‘sexual abuse’ in that conversation.126 She had a subsequent conversation with LM on the same topic. It was around 2017. She and LM were around 22 or 23. LM brought it up in a way that made AR think she did not recall their previous conversation.127 LM told AR in the second conversation the abuse was of a sexual and sometimes verbal nature.128 118 T 206-209. 119 T 212. 120 T 215. 121 T 216. 122 T 217. 123 T 217-218. 124 T 218. 125 T 219-220. 126 T 220. 127 T 221. 128 T 222. -- 27 of 68 -- [2025] SADC 115 26 TM 124 TM gave his evidence in a closed court. Those arrangements were made because TM was a vulnerable witness. I have not used those special arrangements to influence the weight I attributed to the evidence of TM and nor have I drawn any inference adverse to the accused. 125 TM is LM’s brother, and he was born on 29 December 1990.129 After his father moved out of the Eva Street home, he lived in the Virginia Caravan Park. He and LM visited the accused in the caravan park on some weekends, now and then.130 Their mother dropped them off. There were times when he went on his own; sometimes he and the accused had a day at the racetrack.131 126 The accused visited them at Eva Street now and then, around twenty times.132 Now and then his mother was not home during those visits.133 127 The accused eventually bought a house in Price. It was an old run-down stone house. He visited there once or twice a month, sometimes with his sister. His mother would drop them off and sometimes stay for a couple of hours. There were times when he visited on his own.134 128 TM said he and LM slept in bedroom three in two single beds. He identified that on P3 as bedroom 3. After the master bedroom was renovated, he and LM slept in the bedrooms marked two and three. He was around 15 or 16 when the master bedroom was renovated. He was diagnosed with diabetes when he was 11 and at that time, they were in their grandparent’s house in Price which was being renovated. Their grandparents went to Queensland for six months and the accused bought his house in Price after that. TM later said, ‘so, with the renovating going on it was just a slow development of getting the house built. So that’s why I can remember it being 14-15 years old’.135 Cross-examination 129 TM said he remembered the renovation of the Price house because he helped the accused with it. This was when he was 15 or 16 and continued until he was about 21 years old.136 130 TM was shown photographs of a caravan park cabin and said the cabin looked like the accused’s cabin in the Virginia Caravan Park. It had the same wood 129 T 223. 130 T 223. 131 T 224. 132 T 224. 133 T 225. 134 T 225. 135 T 225-228. 136 T 229. -- 28 of 68 -- [2025] SADC 115 27 panelled walls and cream vertical blinds. TM was shown a plan of the cabin and said it appeared to show the same layout as the accused’s cabin: Exhibit D5.137 131 TM could not recall the accused making any payments into a bank account in his name when he was 16.138 A bank statement from Community CPS in the name of the accused was tendered: Exhibit D12. AM 132 AM married the accused in September 1989 in Adelaide. They then moved to Tasmania, where TM was born in 1990. AM said that there were occasions of coercive control in her relationship with the accused when they were in Tasmania. That included things about her appearance and what she was doing.139 133 LM was born in Tasmania in 1993. The accused left the family home when LM was three years old, in 1996. She kept in phone contact with the accused, and he returned to Tasmania and they resumed their relationship and decided to move to Williamstown, South Australia. They rented a house on Yettie Road for approximately 12 months. AM was working part-time as a registered nurse/midwife. The accused had a casual position, but she could not recall where that was.140 134 They bought a house on Eva Street in 1997. She and the accused separated between 12 and 18 months later. AM had had enough of the emotional abuse, some of which occurred in front of LM. When asked to describe that emotional abuse she said: Put downs, you know, those kinds of things, you know, for instance, when I was late home from work, I was accused of doing other things than being at work…Just about my appearance mostly and who I was seeing, my family and things like that…Just that I looked – he often said that I looked like a man with the way I dressed.141 135 After she separated from the accused and he moved out of Eva Street, she was working as a registered nurse midwife at the local hospital. She did three or four shifts in a fortnight which included day (7.00am – 3.30pm), afternoon (1.00pm – 9.30pm) and night (9.00pm – 7.30am) shifts. Those shifts were on weekdays and weekends.142 136 When AM was working, the children would be looked after by her mother, sometimes family daycare and the accused. The accused looked after the children infrequently; two or three times a month. When he looked after them at Eva Street it would always be overnight. He slept in AM’s bedroom with her. That 137 T 229-230. 138 T 231-233. 139 T 235. 140 T 236. 141 T 237, 18-28. 142 T 238. -- 29 of 68 -- [2025] SADC 115 28 arrangement was in place until the children were able to look after themselves, when LM was around 16 years old.143 137 The children visited the accused in the Virginia Caravan Park between two and ten times.144 AM could not say on how many occasions the children stayed overnight in the accused’s cabin. AM stayed there once or twice with the children.145 138 The accused bought a house in Price, after renting a transportable home near his parents.146 She visited his house with the children, and on other occasions she would drop them off and they would stay. AM could not say how often the children stayed there without her. AM stayed overnight when it was the accused’s 40th birthday in 2003.147 She slept in the accused’s bedroom with him, and she thought the children slept in the same room.148 139 There were renovations to the house at Price. When those renovations started there was a room that was liveable: ‘the lounge room and the kitchen were being used, and the bedrooms were done one at a time’.149 140 Around the time of LM’s 21st birthday, AM learnt that LM had made allegations that the accused had sexually abused her. As a result, AM telephoned the accused to ask him about it directly. She rang him and said, ‘[LM] has said that you sexually abused her, and I believe her’. AM said the accused told her he could not remember that since the car accident. AM was sure that she used the words ‘sexually abused’. She was speaking in a soft voice because she was shaking. The accused did not ask her to clarify what she was talking about.150 141 AM said the accused was in a car accident in which he was injured and taken to the Lyell McEwin Hospital. AM could not remember the exact date of the accident, but it was about 11 years ago.151 142 In 2018, AM rang the accused to tell him that LM was having counselling for the sexual abuse. She was certain she used the words ‘sexual abuse’ in that conversation. She asked him if he could contribute to some of her counselling fees. She told him the sessions cost $250 each. She did not ask him to cover the entire cost. She wanted him to contribute whatever he thought was appropriate. He said that he had a new bride, and she was applying for an Australian Visa which was 143 T 239, 241. 144 T 239. 145 T 240. 146 T 241. 147 T 242. 148 T 243. 149 T 243, 26-28. 150 T 243-245. 151 T 244. -- 30 of 68 -- [2025] SADC 115 29 going to cost $10,000 so he did not have much money. He sent her $1000. He did not say anything else during that conversation.152 143 A bank statement in AM’s name for the period 1 November 2017 – 31 January 2018 was tendered: Exhibit P13. The credit for $1000 on 31 January 2018 was money deposited by the accused. By this time there had been a property settlement which involved the division of property. She retained custody of the children.153 144 Text messages between AM and the accused between 24 January 2018 and 31 January 2018 were tendered: Exhibit P14. AM said that she and the accused had already agreed that he would send her some money. She forwarded the BSB and account number. She rang him to ask him if he was having trouble transferring the money. The reference in the messages to ‘[LM]’s choice’ was because LM did not want to receive any money from the accused; she did not want anything to do with it. LM was aware that the accused was contributing to the counselling, but she did not want the money going into her account.154 Cross-examination 145 AM agreed that in 2008-2009 there were renovations at the back of the Eva Street house. The shed was converted into a retreat for TM. Before this he had occupied a bedroom inside the house. AM was shown D9 and agreed that the photographs showed LM inside the shed during the renovation period.155 146 AM agreed that in a statement she made to police on 30 January 2019 she said, ‘The children were only babysat once by [the accused] at the Virginia caravan park for an overnight stay. They actually stayed for a couple of nights, and this was when I had family over for my father’s 70th birthday’.156 AM said this did not make her think that the children stayed overnight on substantially fewer than ten occasions.157 147 AM said that she was working 24 hours a week when she was living in Eva Street with the accused. After he left the family home, she changed contract a few times but continued to work mostly part-time. When she needed childcare, her first port of call was her mother who lived nearby. The children were looked after by her mother at Eva Street or went to family daycare when she was at work.158 When asked whether the accused would come and babysit when neither of those two options was available, she said: 152 T 245-246. 153 T 247-248. 154 T 249. 155 T 249-250. 156 T 251 6-9. 157 T 252. 158 T 252-253. -- 31 of 68 -- [2025] SADC 115 30 No, so [the accused] came to the house quite spasmodically, he’d just show up at the house on occasion without any prior arrangements.159 148 The accused would not always visit unannounced. There were times when she had arranged for him to look after the children but that was less frequent. Sometimes when the accused attended unannounced and her mother was there to look after the children, she would tell her mother she should go home. However, AM then said she could not recall an occasion when he attended unannounced and her mother was there looking after the children.160 149 A property settlement order of the Family Court was tendered: Exhibit D15. AM agreed that D15 recorded the orders of the Family Court on 22 September 1999 regarding the distribution of property between herself and the accused. The accused agreed to transfer his entitlement to half of the Eva Street property in return for AM agreeing not to seek child support for three years. The parties bore their own costs and AM kept possession of all the furnishings at the property and her car.161 AM and the accused kept their respective superannuation entitlements.162 150 The application for divorce was tendered: Exhibit D16. AM agreed that she and the accused separated on 15 November 1999. AM agreed that when she wrote in the divorce application ‘infrequent visits by father (not planned)’ that was an accurate representation of the situation. When she ticked ‘no’ next to ‘do you propose any changes to these arrangements’ she said that was her state of mind at the time.163 151 AM agreed that there would have been one occasion when she took the children to Roseworthy to visit the accused when he was the full-time manager of a chicken farm. She could not say if there was only the one occasion. She said they definitely visited at Christmas when his parents and extended family were there.164 152 AM said she was not sure whether the accused was living in his home at Price on the occasion of his 40th birthday on 15 May 2003. It was at the golf club in the community sports centre with about 40 people. AM stayed overnight but she could not remember where. AM had been to the accused’s house in Price by that time. Some of the rooms were in liveable condition but she could not remember which ones were. AM was shown D7, and she said she recognised the beds in the rooms on page 4 and 5 but she could not remember when those beds were placed in those rooms.165 159 T 253, 17-19. 160 T 253-254. 161 T 256. 162 T 257. 163 T 259. 164 T 261. 165 T 263-264. -- 32 of 68 -- [2025] SADC 115 31 153 TM helped with the renovations to the retreat at Eva Street. He also helped with the renovations at the house in Price. She could not recall how old he was when he was doing that.166 154 AM agreed that the accused came to her house to lay pavers there after the divorce.167 She thought it was generally an amicable separation; they were still talking and did things as a family unit such as Christmas and birthdays.168 155 A bank statement dated 31 October 2009 was tendered: Exhibit D17. It recorded a transfer to A Plane of $3000 on 5 October 2009. She could not recall receiving that money into her bank account. Without evidence of the money going into her bank account she could not say if the accused sent her money for something. He had never transferred money into her account before.169 156 AM said she could not recall if the car accident in which the accused was involved was in June 2011, but she was at the accident site and went with him to the Lyell McEwin hospital. His vehicle was a write off.170 He was in the hospital for four hours and following his discharge he stayed with her. She said he did not have any physical injuries, and the scan of his head was clear. He stayed with her because he did not have transport to get home.171 157 In the second conversation with the accused regarding LM’s counselling fees, AM could not recall him referring to his poor memory as a result of the car accident. AM accepted that the accused at no time agreed with the allegation that she put to him but agreed that LM did not tell lies.172 158 AM said that the accused was emotionally abusive to his children, and he was often in an out of work. His income was very limited, and AM felt like a single parent, even in the marriage. AM absolutely rejected the suggestion that in the first phone call when she told the accused LM alleged he sexually abused her, he said that he did not.173 The accused’s record of interview 159 The accused was interviewed by audio-visual means on 1 October 2018. His wife, LP, was present. He was told that he was being interviewed about allegations made by LM. The accused said he had not seen his children for a while and that his ex-wife told him a few years ago that he was not welcome and not to come up there anymore. 166 T 264. 167 T 264. 168 T 265. 169 T 265-266. 170 T 266. 171 T 267. 172 T 267. 173 T 268. -- 33 of 68 -- [2025] SADC 115 32 160 The accused said he lived in a cabin in the Virginia caravan park for about two years, but he did not know when that was as it was a long time ago. When the accused was told that LM alleged that her mother was working full time and would sometimes drop off LM and TM to see him, he said ‘Right. Not very often’.174 When asked how often she visited he said, ‘Not very, oh I can’t remember her visiting much at all’.175 161 The specific allegations were then put to the accused: Q Um she tells us that sometime between ’96 and ’97 she visited, um she was alone with you um and that ah she was on your bed and then she says that you’ve come over and you’ve started touching her chest area. A No, that’s that’s… Q Ok. A Sorry. Q I have to go through this yep A Sorry yeah but this, yeah I find that, no Q Ok. A Untrue. Q Um she says she doesn’t remember much but that you were touching her, um massaging her across her chest and then you put your hand under her top A No Q No? She then says that you pulled down her lower clothing, including her underwear A No Q That you then got off the bed and walked around to the edge of the bed, um opened her legs and began rubbing her vagina with your hand. A No, that’s, Q No. A That’s ridiculous. Why would I do that? Q Ok. Um she says you touched her clitoris and put your finger inside of her vagina, um and she says that it felt sore, um and that you’ve licked her vagina and stuck your tongue inside her vagina A No, this is ridiculous. 174 MFI P18A, 166. 175 MFI P18A, 170. -- 34 of 68 -- [2025] SADC 115 33 Q Ok A It is ridiculous, sorry, I can’t Q But this is the allegation A I know but, yeah Q I never had her there like A You never what sorry? Q I never had her on my own like176 [Emphasis added] 162 The accused denied sexually assaulting LM and said, ‘I wouldn’t even touch a child like that’.177 He said, ‘never even wanted to touch children’.178 The accused then said that after his wife divorced him, he had a girlfriend at Salisbury so ‘no, it’s ridiculous’.179 He said that he hardly ever saw his children.180 The interview continued: Q Ok. So you’re saying you don’t really remember [LM] and [TM] coming to the caravan park. A No. Q At all? A No, not at all. Q Ok. Um but [LM]’s obviously saying that her and [TM] had come when mum was at work and then she’s saying that this happened. A No. Q Ok. Have you got anything you want to ask about that? Q Um yes, so at the, you said you had a girlfriend, was that while you were still living at the caravan park? A Yeah, yeah. Q Ok, so how long after you separated from ah [AM] and you moved into the caravan park, did you find this girlfriend? A Oh probably six months or something like that? … 176 MFI P18A, 181-295. 177 MFI P18A, 215. 178 MFI P18A, 219. 179 MFI P18A, 221-225. 180 MFI P18A, 281. -- 35 of 68 -- [2025] SADC 115 34 Q Did she come to the cabin where you were staying? A No, no, I went to her house. Q Ok, alright. A And I was hardly ever at, at the park once I was going out with her so Q Right. So you don’t remember the kids ever coming to you or your A No Q Your cabin? A No. A … Q Now does that mean it didn’t happen or does that mean that you don’t remember, just don’t remember it happening? A It’s just, it never happened. … Q So how is it then? A Hey? Q How is it then that she can describe the unit A Like when they visit maybe, but I never had them there alone, like the two of them, or one of them on their own so Q So who else would have been with you then? Are you saying that [AM] was with you when they were there? A She, she might have brought them there, I don’t, because I still don’t remember them even being there that much at all.181 [Emphasis added] 163 The accused again denied the allegations and said, ‘I’m not into children, sorry182…I’ve had other girlfriends, so you know, adults. I always ask, even my wife now, I even ask183…if I want sex, or what184…I just don’t do that’. The accused repeated that he was not into children185: ‘makes me repulsed even thinking that’.186 164 The accused said he babysat the children at Eva Street, but not very often.187 The allegations of sexual abuse at Eva Street were put to the accused and he said, 181 MFI P18A, 232-285. 182 MFI P18A, 289. 183 MFI P18A, 292. 184 MFI P18A, 296. 185 MFI P18A, 298. 186 MFI P18A, 300. 187 MFI P18A, 306-309. -- 36 of 68 -- [2025] SADC 115 35 ‘it’s just ridiculous’.188 He agreed that he had stayed the night at Eva Street.189 He repeated that he had no interest in children.190 165 The accused said that the children stayed overnight at his house in Price, but he could not recall that occurring without AM being there because otherwise they would not get there. He said they might have come to his house with his mother.191 The allegations of sexual abuse were put to the accused, and he said, ‘No, it’s just fantasy192…But it’s just ridiculous, I’ve never done all of this’.193 Later he said that he was not the type of person who would do that: ‘I stick with adults’.194 166 The accused said that when AM told him she did not want him there she did not explain why.195 He said he rang LM for her 21st birthday but one of her friends answered and said she was not there.196 He had not been told by LM that she did not want anything to do with him and he had not asked her about this.197 He did not talk to TM either; the last time he saw TM was at his house and he got upset that he was dating someone else. He thought that was the main reason: ‘they didn’t want to know about the girlfriend’.198 167 The accused said that he remembered LM and her friends had his house at Price when he was away.199 AM also asked if they could borrow the house.200 168 The accused agreed that AM rang him to accuse him but said he was asleep when she called. She said to him ‘oh don’t tell anyone, that, don’t tell any of your parents or anything’.201 He agreed he knew about the allegations.202 The interview continued: Q She, she said that you said that you couldn’t remember when she asked you what happened. A I don’t even, I didn’t touch her.203 169 The accused was then asked about the second conversation with AM: 188 MFI P18A, 344-345. 189 MFI P18A, 346-347. 190 MFI P18A, 372. 191 MFI P18A, 455-461. 192 MFI P18A, 486. 193 MFI P18A, 489. 194 MFI P18A, 512. 195 MFI P18A, 492-500. 196 MFI P18A, 536. 197 MFI P18A, 541-547. 198 MFI P18A, 550-558. 199 MFI P18A, 578, 582. 200 MFI P18A, 595. 201 MFI P18A, 675, 683. 202 MFI P18A, 678. 203 MFI P18A, 688-689. -- 37 of 68 -- [2025] SADC 115 36 Q ‘I’ve spoken to him once since this and explained that [LM] was having some counselling and I asked him to contribute towards the cost of this and he agreed and sent money’ A Yep. Q So that’s what you were talking about. … Q You sent some money to help … A Yep, because I thought that she needed help, oh well they asked for help, I paid. Q Hmmm A I give money to them for help. … Q How much did you, how much did you send. A Ah, a thousand dollars, that’s what we could afford. Q And…who did you send that to? A She asked for three thousand dollars [AM] Q You gave it directly to [AM]? A Yeah she asked that. … A And she asked for three thousand dollars the first time Q Hmmm A So I just said, ‘look you know call it a thousand’ but she was till in um spouse visa … Q So three thousand dollars is a lot of money for counselling. Did you ask what the counselling was for? A She, she just said there was some, for some treatment to help her. Q Did you ask her? To help her with what though? A She, she, well what they’re allegating but … -- 38 of 68 -- [2025] SADC 115 37 A For what she’s saying, that’s this allegation but like I said to her, ‘if this helps, you know, but um if something’s happened?’ … A She said she needed some money for, help [LM] with some treatment … A That’s all … A But as far as I’m concerned, I’ve never touched her, not in that way no Q You didn’t send that money because you felt guilty? A No, no…204 170 The accused denied sending the money because he felt responsible for what he had done.205 He said LM had mental problems.206 The accused denied that AM rang him around LM’s twenty first birthday and told him about the allegations.207 He said he was in Queensland at that time.208 He said AM called him at Price and said he had sexually abused LM but he could not remember when that was.209 The accused then said the second phone call about money for treatment was in 2018.210 The defence case 171 The accused elected not to give evidence. He called his father EP to give evidence. EP 172 EP is married to BP, and they live in Evanston Park, near Gawler. The accused is his son. EP grew up in Price and, after moving around South Australia, returned to Price in 2000 when he was 58 years old. He did electrical work until his retirement.211 The accused’s house in Price 173 EP bought a house at 7 Clemintina Street Price in 2001. He bought it with a view to renovating it so the accused could live in it. When shown documents relating to the settlement of the property, EP corrected his earlier evidence and said he bought the house in 2002. Those documents were Exhibit D19. In 2005, the 204 MFI P18A, 697 – 750. 205 MFI P18A, 751. 206 MFI P18A, 756. 207 MFI P18A, 839-840. 208 MFI P18A, 854. 209 MFI P18A, 860-871. 210 MFI P18A, 888. 211 T 276-277. -- 39 of 68 -- [2025] SADC 115 38 property was transferred to the accused. The accused moved into the property at the end of November 2003. Before that, he had been renting a house on the street on which EP and BP lived. Prior to that he lived with EP and BP and before that lived on a poultry farm at Roseworthy.212 Condition of house 174 The house at Price that EP bought for the accused was unliveable. It had a HIA certificate on the title. It was a stone house around 100 years old and was crumbling and falling down. He understood that the HIA certificate meant that the building needed to be rebuilt or demolished.213 EP paid $12,000 for it.214 Work done on house in Price 175 EP and the accused rebuilt the house together; they also contracted two gyprock fixers to do some flushing and cornice work. The flooring was eaten by white ants. Before the accused moved in, they rebuilt the back bedroom and bathroom and part of the passageway.215 176 EP was shown P3 and said bedroom 3 was the bedroom rebuilt for the accused. When the bedroom was rebuilt, the wall on the passage side was also finished so that the accused had somewhere to put his table and chairs and do the cooking. There was also a fridge and cupboard.216 177 EP identified photographs which showed the framework of bedroom 3 in 2003 between the time the accused lived in a rental property and when he moved in, at the end of 2003: Exhibit D20.217 178 The internal walls were stone and about 15 inches thick. He and the accused removed the internal walls. All external and internal walls were knocked down. In bedroom two the timber was all eaten out and the concrete floor was cracked and falling apart. The floor was replaced in bedroom two and the accused’s bedroom.218 179 EP was shown D8. He said that the front page showed the house pretty much completed in late 2006, early 2007. EP said the photograph showed the external cladding had all been done. There was no shed in the photograph; that arrived in 2007. The cladding was done over a period of time. They would knock down a section, reframe it and then clad it. The front of the house was the last part they completed. The cladding at the front of the house was put up in late 2006.219 212 T 278-279. 213 T 280-281. 214 T 282. 215 T 281-282. 216 T 282-283. 217 T 284. 218 T 285, 286. 219 T 286. -- 40 of 68 -- [2025] SADC 115 39 180 The second photograph in D8 showed the house in 2003 before the accused moved in. The wall in between bedroom 2 and 3 was knocked down so the rooms could be made equal size; that occurred in 2006.220 181 EP said the photograph of the laundry was taken in 2003.221 182 EP was then shown D7 and the laundry on page 14 and said it was the same room as shown in D8.222 183 EP said the photograph on page 4 of D8 was the junk room and was the room described as ‘back room, half ruined’ on P3.223 It was not rebuilt until after EP left Price in 2007. The accused did that with a friend.224 184 The photograph on page 5 of D8 showed the kitchen and EP said it would have been late 2005 or early 2006. The photograph on page 6 showed the passageway looking from the front door towards the back. There were sheets of gyprock and flooring leaning against the wall. EP said this was taken in late 2006 because the door to the front bedroom was not quite complete. The bedrooms were done separately.225 185 EP did most of the electrical work.226 186 The photograph on page 7 was taken from the back sliding door down the passageway to the front door. The lounge room window is shown in the photograph and EP said that the previous owners had put timber panelling over the crumbling internal walls. The photograph was taken around 2005-2006 when the front of the house would not have had cladding on it.227 187 EP explained why the renovations took so long: We started behind the bathroom, went down through the kitchen to the lounge room and then we went across the front from there. So, you must realise that we were doing this in stages. We had temporary framework that we would put up to hold the roof of course while we knocked down each section of wall. So, what we were doing, we were knocking down roughly the ceilings were 3.3m high, so the walls are 3.3m high by 600m wide and we were doing 5m at a time. So, you know we were carting away something like three tonnes of rock and mortar for every 5m of wall that we did. So that is why it took so long.228 188 EP said the first photograph in D7 showed the house after the cladding had been put up and was a fairly recent photograph. The photograph on page 3 showed carpet on the floor and he was pretty sure it was taken in 2007. The bed shown in 220 T 287. 221 T 288. 222 T 288-299. 223 T 289. 224 T 290. 225 T 290-291. 226 T 291. 227 T292-293. 228 T 293, 9-20. -- 41 of 68 -- [2025] SADC 115 40 the photograph was the accused’s bed and was the only bed in the house until 2007. The middle bedroom was shown in the photograph on page 4. EP gave the accused the two beds shown in the photograph just before he and BP left Price. They left Price in 2007. Before they gave the two beds to the accused, there was nothing in that room. The photograph on page 5 showed the back bedroom as it is now. The double bed in the photograph was given to the accused by EP just before they left Price in 2007. Prior to this the accused’s bed was in that room.229 189 Before EP left Price, there was no desk in the hallway or computer in the house.230 EP said that the accused bought the couch and two chairs in photograph 11 of D7 from him just before they moved from Price in 2007. There was no furniture in that room before this.231 EP said he put in the front door shown in photograph 18 well after 2007.232 190 A shed was erected on the property. EP paid the deposit for the shed and the accused paid the balance.233 An invoice issued on 30 October 2006 from Olympic Industries for the shed was tendered: Exhibit D 21. 191 A bundle of tax invoices was tendered and EP explained what each one was for: Exhibit D 22. In summary there were tax invoices from 2 November 2006 to 22 May 2009 for material associated with the shed, a fence, an air conditioner, plasterboard, and a doorjamb set. 192 A bundle of further receipts and invoices between 24 November 2004 and 13 December 2005 was tendered: Exhibit D 23. EP identified an invoice for cornicing work performed by the gyprock fixer and doorjambs.234 193 EP said that he did the architraving for the doors before he left Price in 2007.235 The accused’s mobile telephone 194 EP said the accused had a mobile telephone between 2004 and 2007. It was a basic phone about four inches by two inches. EP identified the phone depicted in D11 as the sort of phone the accused had. He did not see him using it very much.236 The grandchildren 195 EP said TM and LM visited them possibly twice at Price, but they did not sleep over. He visited them occasionally. He never saw them at the accused’s house 229 T 298-299. 230 T 300. 231 T 301-302. 232 T 303. 233 T 305. 234 T 310. 235 T 310-311. 236 T 311-312. -- 42 of 68 -- [2025] SADC 115 41 at 7 Clemintina Street.237 When the accused was in Coober Pedy he saw LM from a distance on the verandah. TM visited when he had his L-plates on his car.238 Cross-examination 196 Between 2002 and 2008 EP was not at the accused’s house every day.239 197 EP agreed that it was difficult to remember the exact dates and years of some of the renovations. He agreed that the settlement documents refreshed his memory as to the date he purchased 7 Clemintina Street.240 198 EP agreed that he could not remember exactly when the front door was put on, but he knew it was after he left Price and at a time when the accused was in Queensland. EP went over to the house with a friend to rebuild the door.241 199 EP said the accused was living at their house in Price between April and June 2003. He remembered that because they had his 40th birthday party in May 2003 and he was living with them at the time. The birthday party was held at clubrooms in Price run by the Progress Association.242 200 EP said he was aware of the allegations and understood that the accused ‘was supposed to have molested [LM]’. He knew this from the previous trial and the information he heard there. The accused told him it was all untrue and never happened. The accused also told him that the allegations spanned from when LM was three years old until she was twelve years old. He knew it was alleged to have occurred at Virginia Caravan Park, Williamstown and Price. About five weeks before he gave evidence he was at the accused’s house and the accused told him he was being retried.243 201 EP then gave this evidence: Q You’ve been quite clear about the dates of some things that happened, in terms of renovations at Price. A Yes. Q Have you been clear about that because you know it will help [the accused]. A No. Q If I put to you that you’re, you’re lying about that, what would you say [EP]. 237 T 313. 238 T 314. 239 T 315. 240 T 315. 241 T 317. 242 T 317-318. 243 T 320-321. -- 43 of 68 -- [2025] SADC 115 42 A I don’t tell lies.244 202 EP said that the first bedroom on the right as you walk in was the last bedroom that was renovated and was finished in early 2007.245 The architraving was the last thing that was done after the doors were hung. The carpet went in after the architraves.246 EP was taken to photograph on page 6 in D8. EP said that there were two architraves on the door in that photograph, but the third one was yet to be put on. He remembered that this photograph was taken in late 2006 because it was the last room that they did.247 203 EP was asked to compare the photograph on page 6 of D8 with the photograph on page 7 which he had said was taken in 2005/2006. EP initially disagreed with the proposition that the photographs were taken around the same time. He said that the lounge room was done before the bedroom was done. EP was asked whether the gyprock shown in the photograph was in the same place and he agreed. EP agreed the photographs could have been taken on the same day. He said: A …It is very hard to recall. We may have, as you can see, all the passageway is lined and ready to be painted. So, I may be completely wrong. That’s part of the passageway that front where that door is. So, we may have done that and then the room after, I don’t know. I can’t recall but I know that was the last room that we actually finished. Q You evidence has already been though that in the photograph showing the bedroom 1 door that at that stage when this photograph was taken all the internal stuff for that bedroom was done. A Well, I would have thought so because the door was there but not necessarily. It’s too long ago for me to recall every single bit of it really. Q It would only be fair to say it is so long ago that you don’t know when any of it was specifically done. A I know that that front bedroom was the last room that we finished in that house. Q Do you say that because you know about the date and nature of the allegations at Price Street. A Not at all. Q Why are you so sure then. A I don’t lie for myself or anyone else. Q Why are you so sure then. 244 T 321, 8-16. 245 T 321. 246 T 322. 247 T 324. -- 44 of 68 -- [2025] SADC 115 43 A Why am I so sure that it was the last – Q That it was the last one. A I just know it was the last one we did. We worked from the back through to the front on both – on that eastern side which is the kitchen side, we did all that side. Then we did the front, the lounge and then we did the bedroom. … Q So it has to be at the time that this photo is taken that that flooring inside was all done. A No. I know what I did. I rebuilt that house. I know every single bit of the house and how it was done and that bedroom was definitely the last room we finished. Q And putting the door on was one of the last things you did in that room, isn’t it. A Well, I can’t recall whether it was or it wasn’t. It may have been put on before we did the floor, I don’t know. Q You told her Honour before that the flooring – that the door went on after the flooring. Were you wrong about that. A I must have been.248 204 EP said that the renovations may have started in late 2002 when they cleaned up to prepare areas for storing gyprock. He agreed that at the first trial he said the renovations started in 2002.249 EP rejected the suggestion that all of the bedroom renovations had been completed by 2003. He said that by the end of 2005 ‘they would have been pretty well on the way’. He said that it was not possible for the children to have slept in the house between 2002 and 2005 unless they all slept in the same bed. He said the floors in the other bedrooms rooms had holes in them and been eaten out.250 Re-examination 205 EP was shown D8 and the photograph on page 7. He said the walls in that photograph were unpainted. EP said the back bedroom was painted when the rebuild had been completed. The bathroom was repainted and that was all. The carpet was not laid at the same time.251 Further documents tendered in defence case 206 Trauma records dated 25 June 2011 from the Lyell McEwin hospital were tendered: Exhibit D 24. D24 established that the accused was involved in a motor vehicle accident on 25 June 2011. 248 T 327, 15-38; T 328; T 329, 1-7. 249 T 330. 250 T 330-331. 251 T 334. -- 45 of 68 -- [2025] SADC 115 44 207 Unfair dismissal application documents dated 11 June 2003 were tendered: Exhibit D25. The limited basis for the tender of those documents was to establish that the accused worked on a poultry farm from November 2001 until 25 April 2003. Closing submissions Prosecution 208 Mr Dudzinski commenced his submissions with the proposition that LM was a witness whose credibility was not really in issue. He said she was doing her best to tell the truth and did not embellish or exaggerate. Any proved prior inconsistent statements were on peripheral matters. 209 Mr Dudzinski submitted that the initial complaint evidence enhanced LM’s credibility. It was made at a time at a time when a child, who did not initially understand the wrongfulness of the conduct, would complain. Mr Dudzinski said I should find that the complaint was made when LM was around 13 or 14 years of age and thus relatively proximate to the offending. It was made to her best friend who she trusted completely and in circumstances where it made sense to explain why she was self-harming. Mr Dudzinski urged me to prefer LM’s account regarding the terms of the complaint, namely that she told AR she had been sexually abused by the accused. Mr Dudzinski said that the circumstances and timing of the complaint demonstrated consistency of conduct. He accepted that the complaint was at a very general level and therefore of limited value in terms of consistency of account. 210 Mr Dudzinski said that LM’s failure to recall that she had made an initial complaint to AR should not detract from LM’s evidence about what was said in the first conversation with AR during which the disclosure was made. Mr Dudzinski disavowed any reliance upon LM’s apparent distress as circumstantial evidence supporting her complaint. Further, the evidence of self- harm was not relied upon as conduct consistent with being the victim of sexual abuse. The distress and self-harm were relevant as they formed part of the narrative of the complaint and the circumstances in which it was elicited. 211 Mr Dudzinski contended that LM was a credible witness and that she was reliable in her evidence on crucial matters, even if she could not pinpoint dates and times with precision. This was unsurprising given she was recounting events many years ago and from her early childhood. LM was accurate in her evidence about the timeline of living in Tasmania, moving to South Australia, the living arrangements and that the accused left the family home. She accurately described the layout of the cabin in the Virginia Caravan Park. Her evidence of visiting the cabin was corroborated by the evidence of TM and AM. 212 Mr Dudzinski said LM’s account of the sexual abuse in the caravan park cabin should be accepted beyond reasonable doubt. Her account of the core aspects of the offending was consistent. The proved prior inconsistent statements were on -- 46 of 68 -- [2025] SADC 115 45 peripheral matters such as how she came to be on the bed and the accused’s precise location at the time he performed cunnilingus. Mr Dudzinski argued that the prior inconsistent statement about the colour of the curtains was explicable when one looks at D5 which shows that there were cream vertical blinds and on the outside of the bedroom windows there was a green mesh covering. Mr Dudzinski invited me to find that what could be seen in D5 explained the inconsistency in her detailed and specific evidence on this topic. 213 In relation to the offending at Eva Street, the accused undoubtedly had the opportunity. It appeared to be common ground that there were times when he would babysit the children. Although LM was not certain of her age and accepted that it may have occurred before she was five years old, that did not diminish the credibility of her account. Again, Mr Dudzinski said LM was consistent on the core aspects of this offending. The inconsistencies were on peripheral matters, such as whether she was told to go to the floor or carried or lifted, and whether she was touched on the inside or outside of her clothes. Mr Dudzinski said that LM’s initial evidence that she remembered the accused getting dressed but then corrected that almost immediately was simply a slip of the tongue. He suggested that it was an ordinary aspect of memory that a person forgets an incident and at a later time when prompted the memory returns. Mr Dudzinski accepted that memories also fade over time but said that discussing an incident can revive a memory and the revival is a reliable process. 214 In relation to the ‘FIFA’ incident, Mr Dudzinski said that LM had a clear consistent recall of the core details of this offending. Whilst she had given a prior inconsistent account of the timing of this incident, the details she described suggested to her that she was in fact aged around 10. It was accepted that she had given an inconsistent account at the first trial of how it was that the accused came to lift her on top of him. It was also accepted that in her initial statement she had told police that the accused did not touch her anywhere else at the time. However, Mr Dudzinski said I should accept her evidence that the therapy and repeatedly talking about the incident drew out the extra detail. The frequency of the offending explained why she might recall some details later than others. 215 Mr Dudzinski said LM was also consistent in her evidence of the core aspects of the offending in her mother’s room at Eva Street. She recalled specific details clearly and there were no proved prior inconsistent statements. The verbal abuse directed to her at the conclusion of this offending was an insight into the relationship between father and daughter; it was not loving and nurturing and therefore the offending was not inherently improbable. 216 Mr Dudzinski then addressed LM’s evidence that the accused showed her pornography. LM said that it occurred in the room that was originally TM’s bedroom. He moved from that bedroom to the retreat that had been built when he was at least 13 years old. LM did not accept that she was over 14 years old when the photograph in D9 was taken. Mr Dudzinski said a finding could not be made that she was over 14 years old when D9 was taken and therefore it did not discredit -- 47 of 68 -- [2025] SADC 115 46 her evidence of the timing of this offending. Mr Dudzinski accepted that LM’s recollection of other occasions when the accused showed her pornography was not as strong. 217 Finally, in relation to the offending in the house at Price, Mr Dudzinski submitted that LM’s account was striking in its detail, consistency and clarity. He said there was no dispute that bedroom 3 was in a liveable state since November 2003. Mr Dudzinski said it was not surprising that LM recalled this incident, given she rebuffed the accused, immediately felt guilty about doing so and then went to his room to apologise and he then told her to get into his bed and pressed his erection into her body. Mr Dudzinski said TM’s evidence supported LM’s account that she was sleeping in bedroom 2 at the time of this offending. TM said that he was 14 or 15 when the renovations were completed. In December 2005 he turned 14. That was still within the date range alleged by the prosecution. 218 Mr Dudzinski said AM was trying her best to present the facts whether they supported her daughter or not. He said her evidence regarding the phone calls with the accused should be accepted. Her account of the conversation did not involve the accused denying the offending or protesting, he simply said ‘I can’t remember’. Mr Dudzinski urged me to find that this was an implied admission. When coupled with his agreement to contribute financially to the fees for counselling and subsequent payment with no denial of the allegations, there could be no doubt that he was well on notice of the allegations and had every chance to deny them. Even in the exchange of text messages about payment, there was no denial. Mr Dudzinski said that the payment of the money alone would constitute an implied admission. 219 Mr Dudzinski said that I should reject the accused’s denials in his record of interview because of the lies he had told in that interview and the implied admissions to AM. He lied when he said that the children never came to his cabin in the caravan park (‘it never happened’) even though he later said that they may have come for a visit, but he never had them alone. He did not volunteer a reason why AM no longer wanted to have contact with him. It was not until he was questioned specifically about the phone calls with AM in which the allegations are put to him, that he admitted he was aware of them. 220 In relation to EP’s evidence, Mr Dudzinski said that his memory was demonstrably defective. That was unremarkable given his age and the matters he was recounting. Mr Dudzinski said his primary submission was that EP had lied about the dates of the renovations because he was aware of the timeline of the alleged offending. EP did not volunteer all of the information he knew about the allegations, but it was teased out of him in cross-examination. 221 Mr Dudzinski said it was implausible to think that a man in EP’s position would be able to accurately recall the sequence of renovation events. Further, he was proved to be wrong about bedroom one being the last to be completed, because the photographs in D8 show the lounge room had not yet been renovated. -- 48 of 68 -- [2025] SADC 115 47 Mr Dudzinski said I should conclude that the photographs he initially said were taken at different times were taken on the same day. Accordingly, I should reject his evidence that bedroom 1 was the last to be completed. Mr Dudzinski said that an acceptance of EP’s evidence about the sequence of the renovations would not necessarily mean that LM’s account of the offending could not be accepted, however that would mean that she was over 12 years of age. Defence submissions 222 Ms Powell SC said that there was significant uncertainty attending LM’s evidence of the number of occasions she visited the accused in the caravan park cabin. She then focussed on the certainty and clarity with which LM described certain aspects of the cabin. LM had a specific memory of green coloured curtains in the bedroom at the back, creamy asbestos material on the walls of the cabin and dark brown bifold doors. It was established that the first time she had mentioned army green curtains to police was on 6 August 2025, despite the fact that this new memory had come to her at the end of 2024 against the background of giving evidence in September 2022 that the curtains were cream coloured. Ms Powell SC said that what was troubling about this aspect of the evidence was the apparent certainty of her opposing descriptions each time she gave evidence and her assertion that her current memory was the reliable one. 223 Ms Powell SC said that LM’s faulty memory of the curtains could not be explained away by what could be seen in D5. TM identified the photographs in D5 as being the cabin in which the accused lived. LM was shown the same photographs and said that it was not the same cabin. Accordingly, there was no identification by LM of the green mesh outdoor blinds as being the curtains about which she testified and no possibility on her evidence of that being the case. Seeing those photographs did not trigger her memory in any way. Ms Powell SC emphasised the uncertainty LM expressed about whether there was a toilet in the cabin, something a child would surely remember in terms of the inconvenience of having to walk to a toilet block if there was no toilet in the cabin. TM said there were no bi-fold doors in the cabin. 224 Ms Powell SC then addressed the first allegation of sexual abuse in the cabin. There was no corroborative evidence from TM regarding an occasion when he was told by the accused to leave the cabin. Indeed, he did not recall any occasion when he was asked to leave the house. Ms Powell SC emphasised the age range LM had estimated she was – 3, 4, 5 years old in evidence at this trial, 3, 4 or 5 years old in her statement dated 24 September 2018, 3 or 4 years old in the trial in September 2022. Ms Powell SC said that the claim of a memory as young as three years of age was to be viewed with circumspection. In addition, there were proved prior inconsistent statements regarding aspects of the actual offending. Those prior inconsistent statements undermined the reliability of her account but also cast doubt upon the veracity of her evidence in this trial because she said her memory had sharpened over time from repetition of her account, recurring nightmares and therapy. -- 49 of 68 -- [2025] SADC 115 48 225 Ms Powell SC said that the spectre of reconstruction of LM’s memory could not be discounted. It was now impossible to examine the process of the sharpening of LM’s memory as it was reliant upon her self-report of the process. What was telling was the certainty with which LM gave evidence on particular topics which was inconsistent with prior statements she had made on those topics. 226 Ms Powell SC said that LM’s account of the second alleged occasion of sexual abuse which occurred at Eva Street was also undermined by proved prior inconsistent statements. LM’s explanation for the differences was again the sharpening of her memory. 227 In relation to the sexual abuse alleged to have occurred in Eva Street, Ms Powell SC said there were proved prior inconsistent statements regarding the timing of this abuse. Her prior statements to police suggested that the two occasions of sexual abuse at Eva Street occurred within a short period of time after the incident in the cabin. However, in evidence LM suggested she was ten years old when the FIFA incident occurred. She attributed that to wearing basketball shorts and the fact that the FIFA game was being played on PlayStation 1. Ms Powell SC submitted that imagining oneself as a 4 to 6-year-old when describing offending to police was quite different from remembering oneself as a 10-year-old. To now suggest the incident occurred when she was 10 years old because she was wearing basketball shorts and did not start playing basketball until she was at least 8 years old could not be reconciled with a memory when speaking to police of being between the ages of 4 to 6. 228 LM had never previously mentioned the accused telling TM to go outside to collect firewood or threatening to throw out his PlayStation. Further, her explanation for asserting for the first time in evidence that she was sitting on the floor when the accused came to her was based upon a reconstruction of events having remembered that the cord for the PlayStation was not long enough to enable a player to sit on the couch. In other words, she was not asserting a specific memory of sitting on the floor, but a reconstruction of that aspect of the event. Ms Powell SC said that it was concerning that LM was prepared to draw conclusions or make assumptions about matters connected to occasions of alleged sexual abuse and recount them as actual memories. 229 Ms Powell SC emphasised the proved prior inconsistent statement in September 2018 that the accused had not touched her anywhere else on this occasion. Her explanation for now recalling wearing basketball shorts, the accused putting his mouth on her vagina, and saying ‘you keep coming back for more’ was that the therapy she had undergone, and memories elicited from recurrent nightmares had led her to recalling these matters. 230 Ms Powell SC made it clear that she had not put to LM that she was positively lying in her evidence. Rather it was submitted that LM may well have had a genuine belief in her evidence but her evidence on material topics was undermined -- 50 of 68 -- [2025] SADC 115 49 by inconsistent accounts and an untestable assertion of the retrieval or development of her memory and the influence of nightmares on that process. 231 Ms Powell SC said that the fourth incident of sexual abuse, in her mother’s bedroom at Eva Street, was one she said occurred when she was 10 years old. In her statement to police on 17 September 2020 she asserted it happened about a year after the third offence which put it within a year of her being 3-5 years of age. 232 In relation to the offending alleged to have occurred at Price, Ms Powell SC said LM’s evidence could not be reconciled with the evidence of EP. EP said that the accused’s 40th birthday party was held at the Price Progress Association clubrooms, and the accused was living with him and BP at the time. The accused’s 40th birthday was in May 2003. LM was ten years old at this time. LM’s evidence was that the first occasion of sexual abuse occurred in bedroom three but at a time when TM was in bedroom 2 and she was in bedroom 3 and her father in the remaining bedroom. At the time she said the abuse occurred, the house had a functioning bathroom, furnished bedrooms, two toilets, a front lounge room with blue couches and a fireplace and the kitchen was tiled and there was carpet in the bedrooms. In this trial she mentioned for the first time that there were renovations occurring when she visited; she had not previously mentioned this. LM identified furniture in the photographs as being present during the visits when abuse occurred that could not have been there prior to 2007 if EP’s evidence was accepted. What she was describing was the house in the condition she found it when she stayed there with a friend, much later when she was aged 17 or 18 years. 233 Ms Powell SC said that the accused had suffered a significant forensic disadvantage by reason of the delay in prosecuting these allegations. It had resulted in EP not being able to be more precise or specific regarding the renovation of the property. 234 EP’s evidence about the slow progress of the renovations was supported by the evidence of TM. Further, any criticism of EP’s evidence regarding the timing of the completion of bedroom one and the possibility that it was in fact completed before the lounge room was renovated did not overcome the fact that the lounge room renovation remained uncompleted and did not have the furnishings in it as described by LM. 235 Ms Powell SC said that there was credible and reliable evidence that cast a real doubt on the reliability of LM’s account that the offending occurred in the Price house at the time she described. 236 Ms Powell SC contended that LM’s evidence that the accused showed her pornography had clearly developed and expanded over time from occasion in the computer room at Eva Street and on the accused’s phone and computer at Price to being shown pornography on various devices at various other locations. Further, LM’s account of being shown pornography in the computer room at Eva Street when she was ten years old could not have happened. The retreat was not built -- 51 of 68 -- [2025] SADC 115 50 until TM was a teenager and the photograph of LM standing outside the retreat at a time it was being converted clearly shows that she was well over ten years of age. Ms Powell SC said that LM’s evidence about the type of phone the accused upon which the accused showed her pornographic images raised a question mark about whether that was in fact possible. 237 Ms Powell SC then dealt with the evidence of initial complaint. She said that this illustrated the dichotomy between LM’s defective memory and her subsequent ability to recall with certainty. According to AR, LM had no memory of having told her on an earlier occasion that her father had touched her. When LM told police the first person to whom she made a disclosure was her then partner, she did not recall having made a complaint to AR. Contrastingly, in evidence LM said she recalled the conversation with AR, the location and the precise words she used, namely that her father had sexually abused her. Ms Powell SC emphasised the internal inconsistency in LM’s evidence on this topic together with her evidence that when she made the disclosure to AR, she did not know that what was happening with her father was wrong, notwithstanding her use of the term ‘sexual abuse’. 238 Ms Powell SC addressed the evidence called in the defence case. She said that EP’s evidence was supported in part by the invoices and receipts and TM’s evidence about the timeline of the renovations. It was obvious that the renovations would have taken some time, given that it was only EP and the accused undertaking them, with some discrete assistance from a gyprock fixer. It stood to reason that a man who had expended so much time and energy on the renovations would remember accurately the order in which things were done. 239 In respect of the telephone conversations and text messages between the accused and AM, Ms Powell SC said that the accused’s response to the allegation that he abused his daughter had to be considered against the fact that he referenced the car accident as attributable to his failure to recall. Ms Powell SC said I should be hesitant to draw the inference that this response was an implied admission. In addition, in evaluating the payment made by the accused towards LM’s counselling fees, I should bear in mind the accused’s responses in his record of interview. He said he had paid money to help LM (after being prompted about this by his partner who was present during the interview). He said he knew what it was like to have mental problems. 240 Ms Powell SC said that the accused did not lie in his record of interview about the contact with LM in the caravan park cabin. In context, what was being put to the accused was that LM visited on her own and that is when the sexual offending occurred. This was not the case and the accused’s denials had to be considered in that context, that is, he was denying that she visited on her own. Accordingly, the accused was not denying that LM visited him in the cabin but when he said ‘it never happened’ he was referring to the allegation that she visited on her own and that is when he sexually abused her. -- 52 of 68 -- [2025] SADC 115 51 241 Ms Powell SC urged upon me the correct approach to be taken to an evaluation of the record of interview as articulated by the High Court in De Silva v The Queen (2019) 268 CLR 57. She conceded that if I found the accused had made implied admissions to AM then that was evidence that could form a basis to reject the accused’s denials as not reasonably possibly true. 242 In closing, Ms Powell SC said that there were too many deficits in LM’s evidence for it to be a safe foundation for a finding of guilt beyond reasonable doubt. The possibility of the reconstruction of memory rather than a reliable memory could not be excluded. Preliminary observations Significant forensic disadvantage 243 In evaluating the evidence in the prosecution case, I have considered the question of forensic disadvantage. Although s 34CB Evidence Act 1929 (EA) does not apply to a trial by Judge alone, the question must still be considered if the circumstances warrant it. 244 The issue of significant forensic disadvantage as referred to in s 34CB EA was considered by the Court of Appeal in R v Cassebohm,252 R v Maiolo (No 2),253 R v W, PK254, R v R, PA255 and Kendall v the King [2024] SASC 54. I have applied the principles which can be distilled from those authorities. 245 I am satisfied that the circumstances of this case warrant a significant forensic disadvantage direction. There was a significant delay between the date range of the alleged offending and the arrest of the accused. The delay is in the order of more than twenty years. This delay has reduced the accused’s ability to effectively conduct his case including to cross-examine the prosecution witnesses in a way so as to cast doubt upon issues of credibility and reliability. In particular, the significant delay has affected the marshalling of evidence to establish the precise timeline of the renovations and the movements and living arrangements of the accused at the times he was alleged to have sexually abused LM. 246 As a result, I have taken this significant forensic disadvantage into account when scrutinising the evidence of the prosecution witnesses. Discreditable conduct evidence 247 LM gave evidence that the accused had been verbally abusive towards her on occasions not linked to sexual abuse. She said he often swore and yelled at her and her mother and brother. She said he would call TM ‘fucking stupid’ and ‘fucking dumb’. AM said that the accused was emotionally abusive towards her, at times in 252 (2011) 109 SASR 465. 253 (2013) 117 SASR 1. 254 [2016] SASCFC 5. 255 [2019] SASCFC 19. -- 53 of 68 -- [2025] SADC 115 52 front of LM. She also said he was emotionally abusive towards the children. She said he engaged in coercive control when they lived in Tasmania. 248 This evidence was admitted for the limited purpose of establishing the nature of the relationship between the accused and his children when he was living with them and after the separation. On the prosecution case, the absence of a nurturing caring relationship was relevant to the likelihood of the accused sexually abusing LM. 249 If I accept this evidence, I must not use it to reason that the accused’s emotionally abusive behaviour towards LM and AM means he is more likely to have committed the offence with which he has been charged. Findings of fact on undisputed or unchallenged evidence 250 I find the facts agreed in P1 proved. 251 I make the following further findings of fact: 1. Exhibit P2 is an accurate representation of the layout of the property at 45 Eva Street, Williamstown. 2. Exhibit D7 and Exhibit D 8 contain photographs of the interior and exterior of 7 Clemintina Street, Price. 3. Exhibit D9 is a photograph of LM inside the shed before it was converted to a retreat at 45 Eva Street Williamstown. 4. Exhibit D10 is a schedule of psychological appointments for LM at Adelaide Psychology and the cost of those appointments. 5. Exhibit P13 records the transfer of $1000 by the accused to AM on 31 January 2018. 6. Exhibit P14 are text messages between the accused and AM regarding the transfer of $1000. 7. The accused was employed as a poultry farm manager from November 2001 until 25 April 2023. 8. LM gave evidence at an earlier trial of this charge in September 2022. 9. LM has given 8 statements to police. 10. LM had psychological counselling which included cognitive behavioural therapy and neurofeedback sessions between February 2016 and August 2022. 11. The accused was involved in a car accident on 25 June 2011 and admitted to the Lyell McEwin Hospital on that day. -- 54 of 68 -- [2025] SADC 115 53 Assessment of witnesses and further findings LM 252 LM presented as a thoughtful careful witness. She appeared anxious whilst giving evidence and breaks were taken when she requested them. 253 I noted throughout her evidence she often referred to being able to recall certain events ‘specifically’ and, despite some of those events being over twenty years ago, she asserted a precise recollection of some aspects of those events. Examples include being able to recall the colour of the curtains in the caravan park cabin, the precise words she used when making a complaint to AR and the type and colour of shorts she was wearing. Her ability to remember events extended to a time when she was around three years of age. 254 I formed the distinct impression that LM believed her memory of events was accurate and reliable. I am satisfied that she believed she was giving a truthful account of events. However, there were features of her evidence that have caused me concern and led me to doubt whether her evidence is a reliable foundation for findings of fact on disputed matters, in the absence of corroboration by evidence I have found to be accurate and credible. 255 I bear in mind that the effluxion of time will generally have an adverse effect upon memory. As a matter of life experience, memories often fade with time. However, there are some events that may be indelibly imprinted in a person’s memory enabling him or her to recall them with accuracy, even if the circumstances preceding or following those events cannot be. An important indicator of the reliability and accuracy of a memory of an event or conversation is the giving of a consistent account of it. 256 I am satisfied that LM has made the following prior inconsistent statements on the following topics: The alleged sexual offending in the Virginia Caravan Park cabin 1. In evidence LM said the accused led her to the bedroom in the cabin. In her statement dated 24 September 2018 she said she could not remember how she got there but her father came over to her on the bed. In her statement dated 17 September 2020, LM said that her father told her to go to the bedroom and then followed her in. 2. In evidence LM said that her father placed her on the bed. In the first trial, LM said that her father lifted her onto the bed. In her first statement to police, she said she could not remember how she got onto the bed. 3. In evidence, LM said that when the accused was rubbing then putting his finger inside her vagina she was lying with her legs over the end of the bed and they would have been hanging over it. She was in this position when the accused knelt down at the foot of the bed and licked her vagina. In her statement dated 17 September 2022 she said that the accused stayed standing until he started to rub her vagina and when he did this he moved onto the bed and was kneeling on her feet. At the first trial, LM said that the accused went around to the front of the bed, took off her pants and underwear and got -- 55 of 68 -- [2025] SADC 115 54 on top of the bed, near her feet, kneeling on her feet. LM had not previously said that she was on the end of the bed with her legs hanging over it. 4. In evidence, LM said she had a distinct memory of the army-green curtains in the bedroom because she saw sunlight coming through them. She also had a strong memory of the accused closing those curtains. At the first trial she said that there were cream-coloured curtains in the bedroom. Prior to giving a statement on 6 August 2025, she had not mentioned to police that the curtains were army green. The first occasion of alleged sexual offending at Eva Street (in lounge room) 5. In evidence, LM said that the first occasion of sexual touching at Eva Street was possibly around the same time as the incident at the cabin. In her statement dated 24 September 2018 she said she believed it was a couple of months after the first incident. 6. In evidence, LM said that on the first occasion of sexual touching at Eva Street she was on the three-seater couch and the accused came and sat next to her and started rubbing her chest over her clothing, kissed her mouth and then used his hands to rub the inside of her chest and the outside of her clothing on her pants and vagina. He then moved her from the three-seater lounge onto the carpet. She was unsure if he lifted or carried her. In the first trial, LM said that the accused told her to go onto the floor. In the first trial she said the accused had rubbed her vagina inside her clothing. 7. In evidence, LM said that she got dressed when TM returned to the house. She had never said this previously. The second occasion of alleged sexual offending at Eva Street (the FIFA incident) 8. In evidence, LM said that the second occasion of sexual offending was when she was around ten years old and that was based on the fact she was wearing basketball shorts and she and TM were playing FIFA on PlayStation 1 at the time. In her statement dated 24 September 2018, LM said she believed this sexual offending occurred in the same year as the first occasion at Eva Street. In her statement dated 24 September 2018, LM did not mention she was wearing blue basketball shorts and that the accused had his mouth on her vagina and said, ‘you keep coming back for more’. The first time she mentioned those things was on 5 August 2022. 9. In evidence LM said she was on the single seater and that the accused came over to her and got her to come to the single seater and made her sit on top of him with her legs either side. In the first trial she said that the accused had come over to where she was sitting and sat next to her and lifted her on top of him. In her statement dated 24 September 2018, LM said the accused was on the couch and had lifted her up and put her on top of him. 10. In evidence, LM said that the accused had told TM to go out and collect firewood and had threatened to throw out TM’s PlayStation. LM had never said this on any prior occasion. The third occasion of alleged sexual offending at Eva Street (in mother’s bedroom) 11. In evidence LM said this occurred when she was around ten years old and possibly around the same time as the FIFA incident. In a statement dated 17 September 2020 she said it happened about a year after the second occasion at Eva Street and when she was in primary school. -- 56 of 68 -- [2025] SADC 115 55 The last occasion of sexual abuse LM could recall at Price 12. In evidence, LM did not say that the accused said to her ‘you like this, don’t you’. In her statement dated 24 September 2018, she told police that the accused said, ‘you like this don’t you’. The condition of the house at Price 13. In evidence, LM said that when the accused first moved into the house at Price, he had a lot of repairs done. Prior to giving evidence in the first trial, she had not mentioned repairs to the house or said anything about the house being renovated. The initial complaint to AR 14. In evidence, LM said that she had a clear recollection of a conversation with AR in which she told AR when she was 16 years old that the accused had sexually abused her. In her statement dated 17 September 2021 she said she recently found out that when she was a teenager, she had told AR that the accused had been abusing her. She said that when AR reminded her of this, she did not remember much about the conversation. In that same statement she said she was not sure what she had said to AR in that first conversation. 15. When she first spoke to police on 6 April 2018, LM said that the first person she told about the sexual abuse was her boyfriend about six years prior. In evidence she said that at this time she did not recall having had any conversation with AR on the topic. Being shown pornography 16. In evidence, LM said that the accused showed her pornography on different phones over different years. Before giving evidence in this trial, LM had not said the accused showed her pornography anywhere other than at the house in Eva Street and in Price. It was agreed by the parties that it was not until 6 August 2025 that she told police she had been shown pornography on different devices over the years. In the first trial she did not mention the use of multiple devices. Cessation of offending 17. In evidence, LM said that there was no further sexual abuse after the age of twelve when she hit puberty. On 6 April 2018, LM told police that the abuse occurred between the age of three to four years through to thirteen to fourteen years but then stopped because of puberty. 257 I am satisfied that LM’s evidence was internally inconsistent on the following topics: The alleged sexual offending in the Virginia Caravan Park cabin 1. LM said in examination in chief that the accused said ‘what’s this’ at the time he was rubbing her chest over the top. She subsequently gave evidence that the accused said ‘what’s this’ when he was rubbing her chest under her top. The second occasion of alleged sexual offending at Eva Street (the FIFA incident) 2. In examination in chief, LM said she was on the single seater when the accused lifted her on top of him. In cross-examination, LM said she would have been sitting on the ground playing PlayStation. She said she was not sitting on either the single seater or three-seater lounge but was sitting on the floor. -- 57 of 68 -- [2025] SADC 115 56 The initial complaint to AR 3. In evidence, LM said that she was 16 years old when she first disclosed to AR she was sexually abused by the accused. Later, when cross-examined about her prior statement to police regarding the conversation with AR she said she was 13 years old when she first disclosed the abuse to AR. Being shown pornography 4. In examination in chief, LM said that the accused showed her pornography on the accused’s phone and computer. In cross-examination, LM said the accused did not show her pornography on a computer at Price. 258 LM gave the following explanations for the proved prior inconsistent statements or internal inconsistencies: 1. LM was able to now recall that the accused led her to the bedroom because she had gone through ‘court stuff’ and had to ‘go over it quite a few times’. She had given different versions to the police of this aspect of the sexual abuse in the caravan park cabin because the first time she was under a bit of stress telling her story but after repeating it a number of times over six or seven years her memory had become quite sharp. 2. LM said her ability to describe in this trial her father placing her on the bed was because her memory had become more vivid over time and repetition. 3. LM said her differing accounts of the position the accused was in just before and when he was licking her vagina was the result of the repetition of coming to court and telling her story over the last six or seven years. 4. LM said that her distinct memory of the army green curtains and of the accused closing them was the result of having to go over her account and developing this memory over time. 5. LM said that the differing accounts at each trial of her location when the first occasion of sexual abuse at Eva Street occurred was the result of her memory sharpened after the first time she gave evidence. 6. LM said that the differing accounts at each trial of the accused rubbing her vagina under and over her clothing was the result of having to retell it. 7. LM’s explanation for her prior statement to police that the FIFA incident occurred in the same year as the first occasion of sexual abuse at Eva Street was that this statement was given before she remembered the specifics of the game they were playing at the time. She later recalled it was a FIFA game and she was ten years old. 8. LM explained the differing accounts of where she was sitting before the accused started to touch her during the second occasion of sexual abuse at Eva Street was because she recalled during a briefing that she was playing PlayStation 1 and the remote-control cords would not reach the chair so they must have been sitting on the floor. 9. LM said that she mentioned for the first time in her statement of 5 August 2022 the fact that she was wearing blue basketball shorts, that the accused had his mouth on her vagina and said ‘you keep coming back for more’ during the FIFA incident because her memory had become sharper from talking about it in therapy or in court. -- 58 of 68 -- [2025] SADC 115 57 10. LM’s explanation for telling police that the memories about the FIFA incident came back as a result of being unblocked through therapy rather than from talking through it over and over again was because she talked about memories in therapy sessions and outside therapy. 11. LM did not give an explanation for the internal inconsistency in her evidence regarding the accused touching her over and under her top when he said, ‘what’s this’. 12. LM did not give an explanation for not having mentioned renovations or repairs to the Price house before giving evidence at the first trial. 13. LM did not give an explanation for her failure to mention until 6 August 2025 that the accused had shown her pornography on different devices over the years. 259 There were also inconsistencies between LM’s evidence and the evidence of other witnesses which I will detail below. The number and nature of the proved prior inconsistent statements and internal inconsistencies are such that LM’s evidence alone is not a satisfactory foundation for a finding beyond reasonable doubt that the accused engaged in any of the unlawful sexual acts alleged in the charge. 260 I am unable to accept the implication in LM’s evidence that the state of her memory when she gave evidence before me is accurate and reliable because her memory has sharpened over time. This is particularly so where the proved prior inconsistent statements demonstrate that LM previously, and at a time more proximate to the alleged offending, had no recollection of particular events or conversations but in evidence now confidently asserted a precise recollection. Whilst I accept, for example, that an inconsistent account of the colour of curtains might not, in the ordinary course, be at all material, and be attributable to a faulty recollection, in this case it is symptomatic of a broader issue with LM’s evidence. The broader issue is the certainty LM expressed about the reliability and accuracy of her recollection and the mechanism by which she has achieved that certainty. 261 In the absence of expert evidence, it is impossible to test or evaluate LM’s evidence that therapy and talking about the events has led to an improvement in her memory of those events. There were aspects of LM’s evidence that suggested she was reconstructing rather than reproducing a memory. For example, the evidence that she was sitting on the floor at the outset of the FIFA incident was based upon the premise that the remote-control cords would not have reached to the couch/chair and so that aspect of her account was modified. By way of another example, a recollection that the Price house was undergoing repairs or renovations when she was staying overnight after being cross-examined on that topic at the first trial. Initial complaint evidence 262 The initial complaint evidence did not bolster LM’s credibility in any material way. I remind myself that initial the complaint evidence is admissible for a limited purpose, to explain how the allegations came to light and to demonstrate -- 59 of 68 -- [2025] SADC 115 58 consistency of conduct and account. Any distress I accept was exhibited by LM in making the initial complaint cannot be used as evidence corroborating her account of the unlawful sexual acts. 263 In this case, the evidence of AR and LM regarding the initial complaint diverged. AR said the conversation took place when they were both 14 years old. AR said that LM told her she was self-harming because her father touched her. AR said LM did not use the words ‘sexual abuse’. In a subsequent conversation eight to nine years later AR was left with the impression that LM had no recall of the initial complaint. It was only in that second conversation that LM said the abuse was of a sexual and verbal nature. The second conversation was elicited in cross- examination and is not an initial complaint. It cannot be used for consistency purposes. 264 I prefer the account of AR regarding the timing and content of the initial complaint and that LM later could not recall making it. I detected no bias when AR gave evidence, and she appeared to be a forthright and frank witness. 265 I reject LM’s evidence that she now recalls that conversation and that she told AR the accused sexually abused her. In evidence, she asserted confidently that she had a clear recollection of the initial complaint being made to AR when she was sixteen years old. The next day when cross-examined she said the conversation occurred when she was thirteen years old. However, LM could not recall this conversation or what she said to AR when she spoke to police on 17 September 2021 and when she first spoke to police in 2018, she said the first person to whom she complained was her boyfriend around 6 years before, in 2012. She agreed in evidence that when she told police this, she did not remember either of her conversations with AR. 266 LM’s evidence regarding the timing of the initial complaint was internally inconsistent. Her evidence on the timing of the subsequent conversation with AR was inconsistent with the evidence of AR, which I prefer. 267 I found implausible LM’s evidence that at 16 years of age she did not know that what the accused was doing to her was wrong. It was inconsistent with her account of the terms of her complaint, namely that the accused had sexually abused her, which she accepted conveyed something improper and wrong had happened. She gave evidence that she learnt about sexual intercourse when she was twelve years of age. 268 The initial complaint as described by AR demonstrates consistency of conduct, in so far as it was reasonable for a person in LM’s position to complain to her best friend. However, the terms of the complaint were so general as to render it incapable of demonstrating consistency of account to a degree that could bolster LM’s credibility. Further, LM’s internally inconsistent evidence on this topic and unconvincing assertion of recalling the timing and content of the initial complaint, are matters I have taken into account in assessing her credibility and reliability -- 60 of 68 -- [2025] SADC 115 59 more broadly. This was yet another example of how the confidence and certainty with which she expressed in evidence a memory of an event was undermined. TM 269 TM gave his evidence in a straightforward manner. I did not detect any guile or bias towards or against the accused or LM. I accept his evidence that the photographs in D5 showed a cabin with the same layout and appearance as the one occupied by the accused. Notably, he said it had the same wood panelled walls and cream vertical blinds. 270 Given the concerns I have regarding LM’s evidence of the appearance of the cabin, together with her prior inconsistent account regarding the curtains, I prefer TM’s evidence on this topic. I am satisfied and find that the accused’s cabin had the same layout and appearance of the cabin depicted in D5. 271 TM could recall the renovations of the Price house, and I accept his evidence that he helped the accused with the renovations. How often he helped and what he did was not further explored by either counsel. However, his evidence regarding the timing of the renovations was vague and I cannot use that evidence as a reliable foundation for a finding as to the timing of the completion of renovation of each of the three bedrooms. However, I accept his evidence that the process took a number of years. 272 Surprisingly TM was not asked about the timing of the completion of the retreat at Eva Street into which he moved. 273 TM did not give any evidence to corroborate LM’s account of being sent out of the cabin or the house at Eva Street on any occasion. TM did not give any evidence to corroborate LM’s account that the accused was verbally abusive towards him, LM or AM. AM 274 AM’s antipathy towards the accused was obvious when she gave evidence. I make no criticism of her for this, given her belief in the truth of her daughter’s allegations and her own view of the accused’s treatment of her and their children during the marriage. In essence, AM felt as if she was a single parent and the principal breadwinner and was often belittled or put down by the accused. 275 Curiously she and the accused maintained relations to the extent that AM would sometimes stay overnight with the children at the accused’s cabin and would sleep in his bed; when he stayed overnight at Eva Street after the separation he slept in her bed. She also said she slept in the same bed with him on the night of his fortieth birthday party. 276 AM’s evidence about the renovations at the house in Price was relatively general and did not corroborate AM’s account that she was staying overnight in a furnished and renovated bedroom separately from TM between 2003-2005. -- 61 of 68 -- [2025] SADC 115 60 277 AM said that when the renovations started there was a room that was liveable and then said the lounge and the kitchen were being used and the bedrooms redone one at a time. In this regard, her evidence was broadly consistent with the evidence given by EP in the defence case. In examination in chief, she suggested that on the occasion of the accused’s 40th birthday (May 2003) she slept in a bedroom with the accused, and she thought the children slept in the same room, but she could not be certain. 278 However, in cross-examination she said that she could not be sure whether the accused was living in the house at Price on his birthday on 15 May 2003. She stayed overnight but could not recall where. She said his birthday party was held in the golf club in the community sports centre. This evidence was consistent with the evidence given by EP in the defence case. She then said that some of the rooms were in liveable condition, but she could not remember which. She agreed that she and the children stayed in the transportable home the accused lived in before he moved into Clemintina Street. She was shown D7 and recognised the rooms on pages 4 and 5 but could not recall when they were in that state. She said TM helped with the renovations but did not know how old he was then. 279 Given the state of her recollection about the renovations, where AM’s evidence about the state and timing of the renovations conflicts with that of EP, I prefer EP’s evidence for reasons I set out later in this judgment. 280 AM agreed that in 2008/2009 the shed at the back of Eva Street was converted into a retreat which was then occupied by TM. TM was still a teenager then. I note that LM could not recall when TM moved into the retreat and his former bedroom was converted into a room with a desk and computer. However, she said the accused showed her pornography after the room had been converted into a computer room and she thought she was ten years old. I accept AM’s unchallenged evidence regarding the timing of the conversion of TM’s bedroom into a computer room. I reject LM’s evidence that the occasion upon which she was shown pornography in that room occurred when she was ten years old. It could not have occurred until she was at least 14 years old. She said the abuse stopped when she was around 12 years old. 281 AM said that the children visited the accused in the cabin at the caravan park more than two but less than ten times. She said she could not remember how many times they stayed overnight. She stayed there once or twice overnight. A prior inconsistent statement regarding the number of occasions the children stayed overnight in the cabin at the caravan park was proved. AM said in a statement dated 30 January 2019 that the accused only babysat the children once for an overnight stay. That was when it was her father’s 70th birthday and she had family over. The children stayed with the accused for two nights. In these circumstances, I am not prepared to accept AM’s evidence that the children stayed overnight on any other occasions when she was not present. I note that in examination in chief she was unable to say how many times the children stayed overnight in the cabin. I accept AM’s evidence regarding the timing of the accused moving out of Eva -- 62 of 68 -- [2025] SADC 115 61 Street. She said he moved out 12-18 months after they moved into Eva Street. It is an agreed fact that the house at Eva Street was purchased on 14 March 1997. I am satisfied and find that the accused did not move out until mid to late 1998. It follows that he did not move into the Virginia Caravan Park until mid to late 1998. Any offending alleged to have occurred in his cabin could not have occurred until LM was approaching 5 years of age or was 5 years of age. 282 I accept AM’s evidence that the accused visited the Eva Street house spasmodically and often unannounced. It is clear from AM’s evidence that her preferred babysitting option was her mother (or daycare) and that the accused was the last resort. In her divorce application, she recorded ‘infrequent visits by father (not planned)’ and recorded that she did not intend to change that arrangement. 283 I accept AM’s evidence that she was unhappy in the marriage and that this was because the accused was not always gainfully employed, did not earn a lot of money and belittled her or accused her of doing things other than work. I do not consider that what AM described rose to the level of emotional abuse but acknowledge that her experience is subjective and accept that AM found the accused’s behaviour confronting and unpleasant. 284 AM used the descriptor ‘emotional abuse’ when describing the accused’s behaviour towards the children. I infer and find that she was describing similar behavioural patterns towards the children. Nevertheless, she maintained a relationship with him for many years, and they continued to attend functions as a family, and she permitted the accused to visit or be visited by the children. 285 In the circumstances, the probative value of this evidence in assessing the likelihood of the accused sexually abusing LM is negligible and I have put it to one side. Telephone conversations and payment of counselling fees – implied admissions? 286 In evaluating AM’s evidence on this topic, I have considered the accused’s responses in his record of interview about the conversations and the payment of counselling fees. 287 AM was not challenged in cross-examination about the fact of the first conversation with the accused around the time of LM’s twenty-first birthday in which she told the accused that LM alleged he had sexually abused her. She rejected outright the suggestion that he had denied the allegation. However, she said his response was that he could not remember since the car accident. In the record of interview, the accused agreed AM rang him and accused him. When it was put to him that she asked him what happened and he said he could not remember, his response was ‘I don’t even, I didn’t touch her’. 288 I am satisfied that AM had a telephone conversation with the accused at some point in late 2014 in which she accused him of sexually abusing LM. I am satisfied and find that during that conversation, the accused said that since the car accident -- 63 of 68 -- [2025] SADC 115 62 he could not remember. I am not prepared to find that this was an implied admission. There is no evidence to refute the accused’s assertion of memory difficulties since the accident. I place no weight on AM’s hearsay assertion that his head scan was clear. I have found that he was admitted to the Lyell McEwin hospital following the accident. I cannot discount the reasonable possibility that in saying he could not remember since the accident, the accused was being truthful and thereby signalling an inability to challenge the allegations rather than an acceptance of them. I am not prepared to draw the inference that his failure to deny the allegations outright and instead assert a defective memory amounted to an implied admission. 289 AM was not challenged about the fact of the second conversation in 2018 when she asked the accused to contribute to the cost of counselling for the sexual abuse. She did not ask him to cover the entire cost but to contribute whatever he thought appropriate. She told him the sessions cost $250 each. I am satisfied and find that this conversation occurred before 24 January 2018 (the date of the text messages in P14). I am satisfied and find that the accused transferred $1000 to AM on 31 January 2018 in response to that request. According to D10, by the time of this phone call, the total of the counselling fees was far in excess of $1000 as LM had had more than thirty sessions. 290 In his record of interview, the accused said that AM asked for money for treatment for LM to help her for the ‘allegation’. He said he never touched her, ‘not in that way’ but paid the money because LM had mental problems and he knew what that was like. 291 AM accepted that in this conversation the accused did not at any time agree with the allegation that he had sexually abused LM. I note that AM said she told the accused that LM did not tell lies. She volunteered this aspect of the conversation in cross-examination when it was put to her that the accused at no time agreed with the allegation of sexual abuse. AM explained that she introduced that topic into the conversation. There would be no need to say this to the accused unless the accused had in some way signalled his dissent to the proposition that he had sexually abused LM. I infer and find that the accused said something to AM in this conversation that suggested to her that he did not agree with the allegation. In those circumstances, I am not prepared to find that his assent to the proposition that LM did not tell lies was an implied admission. I am not prepared to draw an inference that in accepting the proposition that LM did not tell lies, the accused was admitting to having sexually abused LM (because, if she said he did that must be true because she did not tell lies). An acknowledgment that LM did not tell lies was a statement of historical fact but not necessarily an assent to the proposition that LM had not lied about the allegations and therefore they were true. I am not prepared to find that the payment of $1000 for counselling fees was an implied admission. I cannot discount the reasonable possibility that the accused made a contribution because LM was his daughter, and he knew what having mental health problems what was like. -- 64 of 68 -- [2025] SADC 115 63 The accused’s record of interview 292 I remind myself of the correct approach to the evaluation of the accused’s record of interview. The High Court in De Silva v The Queen (2001) 127 A Crim R 116 approved a form of Liberato direction which it extended to treatment of an accused’s account in a police interview:256 (i) if you believe the accused’s evidence (if you believe the accused’s account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused’s evidence (if you do not believe the accused’s account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt? 293 I reject the submission that the accused lied in his record of interview regarding the children visiting the caravan park cabin. When viewed as a whole, the accused’s responses in the interview did not amount to an assertion that LM never visited him at the cabin. The interviewer put to the accused that LM visited him ‘alone’ when putting the allegations and the accused said he never had her on his own. It is clear that the accused was suggesting that he did not recall the children visiting after he started going out with his girlfriend, CC because he was hardly ever at the caravan park because he went to CC’s house. The accused accepted that they may have visited but he did not remember the children being there much at all. 294 The accused consistently denied the allegations in the interview. He did not suggest that there was no opportunity for the offending to have occurred. He accepted that he babysat the children at Eva Street but said it was not very often. He accepted that the children stayed overnight at Price, but his recollection was that AM was there. He suggested the possibility of the children coming to his house with his own mother. 295 I reject the submission that the accused deliberately refrained from volunteering the reason why AM did not want him around anymore. It is clear from his initial answers in the interview that AM had told him that he was not welcome to come around anymore and she did not want him there. It was not suggested by AM that she had excommunicated the accused after learning of the allegations. She said that any arrangements for the accused to assist in babysitting the children ended when they were 16 years old, which for LM was in October 2009. 296 The accused was on notice of the allegations before the interview was conducted. However, there is no evidence that he was ever told any further detail of the alleged sexual abuse, its frequency, duration and nature. Accordingly, when the specific allegations were put to him in the interview, I am satisfied and find that this was the first time he learnt of them. The accused appeared genuinely 256 De Silva v The Queen (2019) 268 CLR 57 at [12]. -- 65 of 68 -- [2025] SADC 115 64 shocked, surprised and disgusted when the specific allegations were put to him. I am satisfied that his reaction was not feigned. 297 I note that the allegation that the accused showed LM pornography was not put to the accused in the interview and thus he was not given an opportunity to deny or refute that aspect of the offending. 298 In my overall evaluation of the denials in the record of interview, I have taken into account my conclusion that the accused has not made any implied admissions in the conversations with AM or by making a contribution to the counselling fees. I am left in a position where I cannot reject the accused’s denials as not reasonably possibly true. EP 299 I found EP to be an impressive witness. I believed him when he said he did not tell lies and he did not lie for himself or anyone else. EP’s evidence was supported by contemporaneous documentary evidence in the form of receipts and invoices and photographs. 300 I accept EP’s evidence that the accused was living with BP and EP between April and June 2003. This timeline accords with the date that the accused finished working on the chicken farm. I also accept EP’s evidence that the accused’s birthday party was held at the clubrooms in Price. I note that AM’s evidence was to the same effect. 301 I accept EP’s evidence that D20 showed the room marked bedroom 3 on P3 before the accused moved in at the end of 2003. I accept EP’s evidence that the second photograph in D8 showed the house in 2003 before the accused moved in. 302 There was no challenge to EP’s evidence of the work that he and the accused did to renovate and rebuild the house. The amount of work that was done was significant and time consuming. His evidence that bedroom 3 was rebuilt and the wall on the passage side was finished so the accused had somewhere to put his table and chairs and do some cooking made perfect sense. In other words, his evidence that enough of the house was renovated to make it liveable for the accused was entirely plausible. This was not a professional renovation or one that had a deadline. The accused was separated from AM and divorced by 16 May 2003. His contact with the children was infrequent and AM did not rely upon him to babysit the children. She had sole custody of the children. I infer and find that there was no urgency in completing the renovation of the remaining bedrooms in so far as the children coming to stay was concerned. I accept EP’s evidence that he never saw the children at this house. 303 EP’s explanation of the reasons why the renovation took so long also accorded with commonsense. EP was challenged as to the order in which the renovations took place. -- 66 of 68 -- [2025] SADC 115 65 304 I accept EP’s evidence that the wall between bedroom two and three was knocked down in 2006. The receipts and invoices generally support EP’s evidence regarding the timeline of the renovations. 305 In evaluating EP’s evidence that the bedroom closest to the front of the house on P3 was the last bedroom renovated and his concession that he may have been wrong when he said that photograph 6 was taken in late 2006 and photograph 7 in 2005/2006 I have taken into account the forensic disadvantage occasioned by the delay in prosecuting this charge. 306 I found the following aspect of EP’s evidence particularly compelling: …I know what I did. I rebuilt that house. I know every single bit of the house and how it was done and that bedroom was definitely the last room we finished.257 307 I accept EP’s evidence that that state of the renovations was such that the children could not have slept in the house between 2002 and 2005 unless they all slept in the same bed with the accused. I accept EP’s evidence that the two single beds in the bedroom marked bedroom 2 on P3 were not in that room until at the earliest late 2006 and prior to that there was nothing in that room. I am unable to accept as reliable LM’s evidence that bedroom 3 was the room she always stayed in from 2003 and TM slept in bedroom 2 and the accused’s room was up the front. I cannot be satisfied that LM stayed overnight at the accused’s house in bedroom 3 between 2003 and 2005. LM said there was definitely no sexual touching after she got her period when she was around 12 years old. LM turned 12 on 17 October 2005 and 13 on 17 October 2006. These matters fortify the reasonable doubt I have regarding the reliability of LM’s evidence about the alleged offending at Price. 308 Finally, I accept EP’s evidence regarding the type of mobile telephone the accused had between 2004 and 2007. EP identified the Nokia mobile phone depicted in D11 as the type of mobile phone the accused had during that time. I have significant reservations regarding the likelihood of that mobile phone displaying images of the kind described by LM. Conclusion 309 It is my task to determine whether the prosecution has proved the accused’s guilt beyond a reasonable doubt based on the whole of the evidence. The whole of the evidence includes the accused’s record of interview and EP’s evidence, together with the exhibits tendered through EP. 310 The findings I have made regarding the evidence of LM and the acceptance of other evidence where it conflicts with her evidence, has left me in a position where I have a reasonable doubt regarding reliability and also, to a degree, the credibility of material aspects of her evidence. The compelling nature of EP’s 257 T 329. -- 67 of 68 -- [2025] SADC 115 66 evidence and my conclusion that the accused’s denials in his record of interview are reasonably possibly true, have fortified that reasonable doubt. 311 It follows that I am not satisfied beyond a reasonable doubt that the accused committed the offence charged. Verdict 312 I find the accused not guilty of sexual abuse of a child. -- 68 of 68 --