[2024] SADC 64

Prosecution: R Counsel: MS R ANDERSEN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Defendant: P, RJ Counsel: MS M BARNES - Solicitor: CALDICOTT + ISAACS LAWYERS Hearing Date/s: 27/04/2023 to 28/04/2023, 01/05/2023, 06/06/2023, 04/08/2023 File No/s: DCCRM-22-1083 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 P, RJ Criminal Trial by Judge Alone [2024] SADC 64 Reasons for the Verdicts of his Honour Judge Allen 30 May 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD The accused elected for trial by judge alone on three counts of maintaining an unlawful sexual relationship with a child and one count of unlawful sexual intercourse with a person under 14 years, contrary to ss 50(1) and 49(1) respectively, of the Criminal Law Consolidation Act 1935 (SA). It is alleged that between 7 March 2014 and 1 April 2017, the accused committed the acts against his granddaughter [M] of maintaining an unlawful sexual relationship with [M] by engaging in two or more unlawful sexual acts with [M], namely: (a) causing her to touch his penis; (b) inserting a finger into her vagina; (c) touching or licking her ear with his tongue on more than one occasion; (d) kissing her on more than one occasion. It is alleged in the alternative that between 28 February 2017 and 1 April 2017, the accused committed the act against his granddaughter [M] of unlawful sexual intercourse by inserting a finger into her vagina. It is further alleged that between 8 November 2015 and 1 July 2021, the accused committed the acts against his granddaughters [O] and [T] of maintaining an unlawful sexual relationship with [O] and [T] by engaging in two or more unlawful sexual acts with [O] and [T], namely: (a) touching her vagina on more than one occasion; (b) causing her to kiss him on the lips on more than one occasion; (c) touching her buttocks on more than one occasion; (d) causing her to touch his penis on more than one occasion. Verdict: Not guilty on all counts. Criminal Law Consolidation Act 1935 (SA) ss 49(1), 50(1); Evidence Act 1929 (SA) ss 13BA, 34CB, 34M, 34P, 34S, referred to. -- 1 of 84 -- R v England (2013) 116 SASR 589; R v Maiolo (No 3) [2014] SASCFC 89; R v Jones [2018] SASCFC 80; R v S, DD (2010) 109 SASR 46; R v C, CA [2013] SASCFC 137; MDM v The Queen (2020) 136 SASR 360; DES v The Queen [2020] SASCFC 32; Phillips v The Queen (2006) 225 CLR 303; R v Bonython-Wright (2013) 117 SASR 410; Sexton v The Queen [2022] SASCA 73; R v MJJ; R v CJN (2013) 117 SASR 81; Hughes v The Queen (2017) 263 CLR 338; R v Cassebohm (2011) 109 SASR 465; R v Maiolo (No 2) (2013) 117 SASR 1; R v W, PK [2016] SASCFC 5; R v R, PA [2019] SASCFC 19; Murray v The Queen (2002) 211 CLR 193, considered. -- 2 of 84 -- R v P, RJ [2024] SADC 64 Criminal Overview 1 On an Information filed 17 October 2022, P, RJ is charged with the following offences: Count 1: Offence Details: Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935). Particulars [P, RJ] between the 7th day of March 2014 and the 1st day of April 2017 at Parafield Gardens, maintained an unlawful sexual relationship with [M], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [M] namely: (a) causing her to touch his penis; (b) inserting a finger into her vagina; (c) touching or licking her ear with his tongue on more than one occasion; and (d) kissing her on more than one occasion. ... Count 2: Offence Details: Unlawful Sexual Intercourse with a Person under 14 Years. (Section 49(1) of the Criminal Law Consolidation Act, 1935). Particulars [P, RJ] between the 28th day of February 2017 and the 1st day of April 2017 at Parafield Gardens, had sexual intercourse with [M], a person under the age of 14 years, by inserting a finger into her vagina. ... Count 3: Offence Details: Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935). -- 3 of 84 -- [2024] SADC 64 2 Particulars [P, RJ] between the 8th day of November 2015 and the 1st day of July 2021 at Parafield Gardens, maintained an unlawful sexual relationship with [O], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [O] namely: (a) touching her vagina on more than one occasion; (b) causing her to kiss him on the lips on more than one occasion; (c) touching her buttocks on more than one occasion; and (d) causing her to touch his penis on more than one occasion. ... Count 4: Offence Details: Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935). Particulars [P, RJ] between the 8th day of November 2015 and the 1st day of July 2021 at Parafield Gardens, maintained an unlawful sexual relationship with [T], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [T] namely: (a) touching her vagina on more than one occasion; (b) causing her to kiss him on the lips on more than one occasion; (c) touching her buttocks on more than one occasion; and (d) causing her to touch his penis on more than one occasion. ... 2 The accused elected for trial by judge alone. Elements of the Offence Maintaining an unlawful sexual relationship with a child (counts 1, 3 and 4) 3 The offence of maintaining an unlawful sexual relationship with a child has four elements: 1. the accused knowingly maintained a relationship with each complainant, [M], [O] and [T] during the period in which the particularised unlawful sexual acts occurred; 2. the accused was an adult during the period in which the particularised unlawful sexual acts occurred; -- 4 of 84 -- [2024] SADC 64 3 3. each complainant, [M], [O] and [T], was a child and under the age of 17 years during the period in which the particularised unlawful sexual acts occurred; and 4. the accused intentionally committed two or more of the particularised unlawful sexual acts during the course of the relationship with each complainant, [M], [O] and [T]. 4 Elements one, two, and three were not in dispute at trial and are established beyond reasonable doubt. For each of these charges, element four was the issue at trial. The question is whether the prosecution has proven beyond reasonable doubt that the accused intentionally committed two or more of the particularised unlawful sexual acts, as to each complainant. This includes an assessment as to whether a particularised act is proved to have taken place and whether that act is attended with the requisite prurient purpose. 5 The elements of the offences are: Indecent Assault 1. there must be an assault, a touching would suffice; 2. the assault must be deliberate as opposed to accidental; 3. the assault must be unlawful; 4. the assault must be indecent according to contemporary community standards; 5. the assault must be committed by the accused with a sexual purpose or intent; 6. the complainant must be under 17 years of age. 6 Consent is no defence to this charge; a child under 17 years is incapable in law of consenting to sexual activity. Gross Indecency The offence of gross indecency occurs when an accused commits an act of gross indecency in the presence of a person under 16 years. The elements of gross indecency which the prosecution must prove beyond reasonable doubt are: 1. the accused must commit an act of gross indecency - in this case the allegation that the accused caused the complainants to touch his penis and caused [O] and [T] to kiss him on the lips; 2. the act must be in the presence of a person under the age of 16 years; -- 5 of 84 -- [2024] SADC 64 4 3. the act must be grossly indecent according to contemporary community standards; 4. the act must be committed by the accused with a sexual purpose or intent. 7 Consent is no defence to this charge; a child under 16 is incapable in law of consenting to gross indecency. Unlawful Sexual Intercourse with a person under the age of 14 years 8 The elements of unlawful sexual intercourse with a person under 14 years of age which the prosecution must prove beyond reasonable doubt are as follows: 1. the accused had sexual intercourse with the complainant. For the purposes of this trial sexual intercourse includes penetration of the vagina by a finger; 2. the complainant was under 14 years at the time of the intercourse. 9 Again, consent is no defence to this charge; a child under 14 is incapable in law of consenting to sexual activity. 10 Element one of this charge was the issue at trial. The question is whether the prosecution has proved beyond reasonable doubt that the accused had sexual intercourse with the complainant [M]. Preliminary legal directions 11 Having conducted a trial by judge alone, it is unnecessary to set out the various standard directions that would be given to a jury. Nonetheless, I remind myself of the following principles. 12 The standard of proof is beyond reasonable doubt. The prosecution bears the burden of proof. The accused is presumed to be innocent unless and until the evidence satisfies me that each element of the offence has been proven beyond reasonable doubt. It is not sufficient for the prosecution to show a suspicion of guilt, or to demonstrate that the accused is probably guilty. The accused is not required to prove that he did not commit the offence with which he is charged. 13 The complainants, [M], [O], and [T], gave evidence with special arrangements in place. I must not allow the fact of these arrangements to influence the weight that I give to the evidence of each particular witness. I must not draw an adverse inference against the accused as a result of the fact that these arrangements were in place. 14 The accused did not give evidence. The accused’s silence cannot be used against him. I must not draw any adverse inference based on his choice not to give evidence. I must not treat his silence as an admission, nor must I use it to fill gaps in the prosecution case. -- 6 of 84 -- [2024] SADC 64 5 Brief Background 15 The accused is the grandfather to each of the complainants. Generally speaking, the alleged acts of abuse are said to have occurred in his house when the children were in his care. The prosecution case is that the accused commenced offending against his granddaughters following the death of his wife on 4 January 2018. 16 A significant body of the evidence led by the prosecution at trial related to uncharged acts, including those alleged to have been perpetrated against the complainants [O] and [T] whilst on a family holiday in Queensland. Summary of evidence Examination-in-chief of complainant [M] General background 17 At the time of giving evidence, [M] was 19 years of age. She was employed as a meat packer. Her mother is [JP], and her stepfather is [MP]. [M] was asked to describe her relationship with her stepfather. She described him as a good father who has always been supportive. She would call him dad. [M] has two younger sisters (who are 5 years younger than her), namely [O] and [T], who are twins. At the time of the alleged offending, [M] resided in Murray Bridge with her mother, stepfather, and sisters. 18 [M] gave evidence that her stepfather had a mother and father, [LP] and the accused. She recalled that [LP] passed away when she was around 10 to 11 years of age. She described having a really good and goofy relationship with her. She referred to her as grandma. She described her relationship with the accused: ‘I didn't have much of a connection or relationship. I was much closer to my grandmother than I was with him.1 19 She gave evidence that whilst growing up she would refer to the accused as ‘Grandpa’. 20 [LP] and the accused resided at an address in Parafield Gardens. Before [LP] passed away, [M] would visit them throughout the school holidays. Her evidence was that they would frequently visit them in Murray Bridge. Upon [LP] passing away, [M] gave evidence that the accused continued to reside at the Parafield Gardens address. She recalled that after [LP]’s passing, she would attend this address more frequently and stay the night. This only occurred a few months after the passing of [LP]. Prior to [LP]’s passing, it would be uncommon for her to stay the night. 21 When staying the night, she said that there were times when her twin sisters would be with her but other times that she would be by herself. When asked where she would sleep when her sisters were not present, she gave evidence that some 1 T41.29. -- 7 of 84 -- [2024] SADC 64 6 nights she would be in the main bedroom and other nights in the spare bedroom. She clarified that the main bedroom is the accused’s bedroom.2 When sleeping in the main bedroom, she would sleep in the same bed with the accused. When her twin sisters stayed over, the three of them would sleep in the spare bedroom, although sometimes she would have to sleep in the main bedroom. Touching torso 22 [M] gave evidence that when she was in the main bedroom with the accused, the accused would get very close to her. She said that this would make her very uncomfortable. She was then asked whether she could remember the first time that something happened that made her uncomfortable. [M] stated the following:3 A I was laying there and he was putting his hands on me, my torso area underneath my shirt (INDICATES). 23 [M] was asked whether the accused would say anything whilst this occurred. Her evidence was that she does not remember his exact words, but she remembers he would talk about grandma a lot. When asked whether she could remember things he would say about her grandma during this, her evidence was that he would say ‘just what she liked’ and that she liked dolphins.4 Black silk robe 24 [M] was asked whether she remembered anything else happening in the bed. She remembered another occasion that relates to a black silk robe. She did not know how old she was when this occurred.5 She gave evidence that there was a black silk robe on the back of the accused’s door (main bedroom). [M] said he would try and bribe her with money to wear this robe.6 He would tell her to wear the robe and dance in the corner for him. Her evidence was the more she said no to this request, the more the accused would offer in money. In terms of how much the accused offered, [M]’s evidence was that he started with $20, and she believed he offered up around $100 before he stopped asking.7 [M] confirmed that she did not dance in the robe despite the accused’s requests.8 [M] said that she could only remember one occasion when the accused asked her to wear the robe. She could not recall if the accused said anything when he requested the robe be put on. She could not recall why the accused wanted her to dance in the robe. Digital penetration – counts 1 & 2 25 [M] recalled another incident that occurred when she was 13 years of age. [M] said she asked to go to the accused’s house as she knew he would supply her 2 T43.24. 3 T44.8. 4 T44.23. 5 T44.32. 6 Ibid. 7 T45. 8 T45.10. -- 8 of 84 -- [2024] SADC 64 7 with alcohol. [M] was asked how she knew that the accused would supply alcohol to her, to which she said the following:9 A Previous years he would give me ciders which is how I knew about cider flavours. We would drink them during dinner and he had - I am not too sure what type of alcohol it is, I think it is a type of wine because it was sitting on the wine shelf but he would pour that into a small shot glass and we would also drink that before our dinner. 26 She gave evidence that at this time, she was in high school, and she said everyone thought that it was cool to drink alcohol.10 27 Earlier on in the night, [M] recalled sitting in the spare room with half a bottle of cider. She remembered walking into the kitchen where the accused then entered and proceeded to pour two glasses of the apple cider. [M] said after the accused drunk his glass, he told [M] to go and wait in his bedroom as he wanted to discuss something with her.11 [M] could not recall how much cider she had prior to going to the bedroom to wait for the accused. [M] gave evidence that she went to the room to wait for the accused. [M] said she did not know what the accused wanted to talk about. [M] gave evidence that she was scared as she knew something was going to happen.12 28 Her evidence was that she sat on the bed, on the side closest to the mirror, her right-hand side, laid down and waited for the accused13. She waited for a few minutes. [M] described how she was sitting on the bed:14 A I was sort of - before he had come in I was sitting on the edge but it felt like he was taking a while so I put my legs up onto the bed and I crossed them and I laid down. That's when I started to listen out for the tap so I knew when he was coming so I could sit back up. 29 [M] gave evidence that the accused entered the room and jumped on top of her and held both of her hands at the top of her head. She said her legs were trapped in between the accused’s legs.15 [M] stated she was scared to fight back and that she froze. 30 Upon the accused initially jumping on her, [M] gave evidence that he sat on her legs, and that she automatically crossed her arms across her chest.16 She recalled feeling scared. She said at that point the accused pushed her hands above her head and held them down. She said that the accused used one hand to hold her hands above her head and the other hand he pulled her pants down.17 9 T49.14. 10 T48.34-38. 11 T50.36. 12 T49.7. 13 T51.9. 14 T51.13. 15 T49.9. 16 T51.23. 17 T52. -- 9 of 84 -- [2024] SADC 64 8 [M] said that the accused then ripped her pants below her hip bone and the pants were resting on her thighs. [M] said whilst this occurred she kept wiggling.18 31 She stated she was fairly skinny at this time and as such had a ‘thigh gap’ between her legs. 32 Her evidence was that the accused proceeded to put one of his fingers inside her and then removed it.19 [M] clarified that by ‘inside’ she meant her vagina.20 [M] described the accused’s legs as ‘propped open’ and that he was positional ‘on his knees’ whilst her legs were stuck underneath.21 She also says her feet were crossed at this stage. [M] said her feet were crossed and her legs were straight. The accused’s legs were positioned on each respective side of her legs. 33 In relation to how she felt when the accused inserted a finger inside her vagina, [M] said she experienced a burning sensation, like something was lodged in there.22 This feeling only lasted for a couple seconds. 34 [M] gave evidence that the accused then pulled on her pubic hair with his right hand and started saying racial slurs like ‘black pussies don’t belong anywhere’.23 This was with the same hand that he used to insert his fingers into her vagina. 35 Due to the pain of pulling on the hair, [M]’s evidence was that she managed to get one of her legs free and kick the accused in the shoulder/chest area. the accused then fell back onto the bed. [M] pulled her pants back up and ran into the bathroom. When in the bathroom, [M] gave evidence that she began crying.24 She said that she was unsure of how long she was in there, but says it felt to her like hours. Her evidence was that whilst she was in the bathroom, she could hear the accused calling her, but was unsure what he was doing. When [M] came out of the bathroom, she said she walked quietly into the spare room and shut the door. She did not see the accused. [M] then fell asleep. 36 [M] gave evidence that she could not remember any other conversations with the accused following this incident. She said that no other like incidents happened as she stopped visiting the accused.25 [M] said that if her parents ever suggested she visit the accused, she would simply say no.26 She said she would justify this by saying she needed to focus on school and work. 37 This specific incident involving [M] is subject to count 2 on the Information, namely unlawful sexual intercourse with a person under 14 years. This incident 18 T52.11. 19 T52. 20 T52.16. 21 T52.18. 22 T53.14. 23 T53.33. 24 T54.9. 25 T55.17-19. 26 T55.27-31. -- 10 of 84 -- [2024] SADC 64 9 also constitutes particular (b) to count 1, the accused inserting a finger into the vagina of [M]. Further particulars of count 1 38 The complainant, [M], was questioned about other allegations relevant to the particulars of count 1. Hand in pants 39 [M] recalled another occasion whilst in bed with the accused where she was half-asleep, and woke up with her hand in his pants, and his head close to her ear.27 When [M] was asked to clarify what she means by ‘pants’, she said she meant boxer shorts.28 She said her hand was resting on his genitals, specifically the top half of her thumb.29 During her evidence, [M] indicated what part of her thumb and the following exchanged occurred:30 Q Are you able to describe what part of your hand was resting on his genitals. A On the top half of my thumb (INDICATES). Q You have just performed a gesture, is that right. Can you just hold it up again for the court. A Top of my thumb (INDICATES). Q You are holding your hand closed in a fifth so it was the top part of where your thumb was and that part was resting on his genitals, is that right. A Yes. Q Is it the case that your hand was closed like that on top of his genitals, is that what you are describing. A So my hand was like this and I remember waking up to his genitals being on top of my thumb (INDICATES). WITNESS DEMONSTRATES LAST TWO KNUCKLES OF THUMB. 40 In relation to the accused’s position, [M] said she remembered the accused’s hand being close to her and that he was breathing on the left side of her face. She also recalled that it was her left-hand down the accused’s pants. She could not recall him saying anything during this incident. She could not remember how she acted when she realised what was happening. She does not remember her age at the time. 27 T46.31. 28 T46.36. 29 T46.38. 30 T47. -- 11 of 84 -- [2024] SADC 64 10 Tongue in ear 41 [M] gave evidence that the accused would occasionally try and stick his tongue in her ear.31 42 One incident [M] described was when she was standing at the kitchen sink doing the dishes, and the accused came up from behind her, grabbed her wrist, and then stuck his tongue out and put it in her ear.32 She could not recall if the accused said anything during this incident. 43 [M] said she was able to remember the incident where the accused placed his tongue in her ear whilst she was in the kitchen because he successfully inserted his tongue in her ear. She said she could not recall a specific similar incident in the bedroom, but described it as being a constant thing.33 Watch [M] shower and torso touching (uncharged) 44 [M] gave evidence that the accused would watch her shower.34 She said during such incidents that she would be in the shower, he would open the door and stand at the doorway. [M] said she would yell at him to get out. She said he would only leave when he was ready to do so. After a few incidents, she began locking the door. In terms of the frequency of such incidents, [M] was asked how many times this occurred. Her evidence was it occurred one to three times with a duration of 30 seconds to a minute. She said the accused would not say anything, he would just watch and smile. [M] did her best to cover her body. [M] said that the accused touched her torso and neck a lot. He would use his hands to do this. 45 These are uncharged acts, not forming part of the particulars relied upon by the prosecution on count 1 of the Information. (Attempted) kissing 46 [M] also gave evidence that the accused would try to kiss her. [M] said the following in evidence:35 Q You've described him putting his tongue in your ear, was there anything else that he did with his tongue or mouth. A He would try and kiss me. He would pucker his lips and come towards me, but I would move away from him, like grab his face and push it away. Q You said he would try and kiss you. A Yes. 31 T55.37. 32 T56.1-22. 33 T56.26. 34 T57.1. 35 T57.32-33. -- 12 of 84 -- [2024] SADC 64 11 Q Did he ever successfully do that. A No. Q Where would this happen. A Around the house. 47 [M] recalled an incident where the accused attempted to kiss her when at the kitchen sink.36 The accused had his hands around her waist, and he puckered his lips to try and kiss her. However, she said she moved her head away and dodged his advances. 48 She gave further evidence about another situation where she recalled laying in the bedroom, and the accused would lay with his arm underneath the pillow that she was on, and he would lean over to try and kiss her, but [M] would grab his face and push it away.37 49 Whilst particularised in count 1 of the Information, there was no evidence given of any actual kissing taking place between the accused and [M]. Observing pornography (uncharged) 50 [M] gave the following evidence in response to a question as to whether anything else occurring at the accused’s house that made her uncomfortable:38 A I woke up to my little sister's, hearing their footsteps running up and down the hallway, it was early in the morning and I'd slept in the main bedroom whilst my little sisters had slept in the spare room and when I got up the accused wasn't in the bed, but I saw my little sister standing by the hallway door, or like the hallway doorway, and she was poking her head around the corner like she didn't want to go out there and he had been watching adult films on the TV. I had grabbed my little sister and I had walked her back into the spare bedroom. 51 When asked what [M] meant by adult films, she said she meant pornography. There was no evidence to suggest that any of the complainants were encouraged, counselled, or procured to view pornographic material. I note that this is an uncharged act and not particularised by the prosecution. Cross-examination General background 52 In cross-examination, [M] was asked about her siblings. She said she had a sister, [K], who is 2 years her elder, as well as another older sister and two older brothers. It was put to [M] that [K] would come with her to visit the accused. [M]’s 36 T58.4. 37 T58. 38 T59. -- 13 of 84 -- [2024] SADC 64 12 evidence was that this rarely occurred39. She denied that she would stay there by herself with [K]. Chores and cleaning 53 It was suggested to [M] in cross-examination that one of the reasons she visited the accused was to do some cleaning and earn pocket money. [M]’s evidence was that she did not remember.40 [M] gave evidence that she assisted with some chores, such as washing and dishes, but she could not remember receiving pocket money for it.41 [M] said she often received money from the accused for her birthday and Christmas. It was put to [M] that she went to the accused’s house in order to earn pocket money. [M] said she could not recall.42 It was further suggested that one of her chores was to clean the cupboards. [M]’s evidence was that she could not remember. It was further suggested that another chore was to get down on her hands and knees and scrub the floor in the kitchen. [M] said she also could not remember that happening. Receiving money 54 In relation to money that was gifted by the accused for Christmas and birthday events, it was further put to her that her older siblings would also receive money. [M] stated the following:43 A I'm not too sure about my two eldest ones [D] and [B], that is my older brother and older sister, but I am fairly sure [W] got money as well. Q And also [K]. A Yes. Knee condition of the accused 55 [M] agreed in cross-examination that right after the death of [LP], the accused was quite overweight.44 She also agreed that he had problems with his knee. She said she was aware that the accused had surgery to his knees, and was seeing a physio for his condition. [M] disagreed with the suggestion that because of the accused’s knee problems, he was unable to bend down.45 [M]’s evidence was that he was able to do so. She gave evidence that she had seen him do it before, but that the accused did struggle with getting up and down. These difficulties were present on each occasion that she visited him. Later in cross-examination, the following was said about the injuries the accused had:46 39 T66.33. 40 T68.9-12. 41 T68. 42 T68.35. 43 T70.13. 44 T69.5. 45 T69.23-28. 46 T83.11. -- 14 of 84 -- [2024] SADC 64 13 Q You told us as well that you knew that he would go and get physiotherapy for his knees, remember saying that. A Yes. Q Now, he couldn't kneel, could he, because of his bad knees. A I've seen him do it a couple of times but he struggled. Q Did he struggle to get up again if he did kneel. A Yes. Q He wasn't somebody that you would see running around, was he. A No. Q He couldn't jump, could he. A No. 56 Later in cross-examination, the topic relating to the accused’s knees arose again. It was put to her that the accused could not kneel due to the poor condition of his knees. [M] gave evidence that she had seen the accused kneel a couple of times, but that he struggled to do so. He also struggled to get back up. Layout of the accused’s house 57 [M] was questioned on the features of the accused’s house. She said that there was a bunkbed in the spare room. It was put to her in the following way:47 Q And a spare bedroom. A Yes. Q In that spare bedroom there was a bunk bed, wasn't there. A Yes. Q It was one of those sorts of bunk beds that was a double or a Queen down the bottom and a single up top. A Yes. Q So enough room in that bedroom for you and both of your sisters [T] and [O] to sleep. A Yes. 47 T72.28. -- 15 of 84 -- [2024] SADC 64 14 58 [M] disagreed with the suggestion that it was normal when she, [T] and [O] would visit the accused, that the three of them would all sleep in the spare room. [M] explained that this would not always occur. 59 [M]’s evidence was that the accused would always make her sleep with him even if her sisters were there, but at times she would argue with the accused and sleep in the spare bedroom.48 60 [M] recalled that there was a TV in the lounge room. 61 She also recalled the accused having a TV in his bedroom. Her evidence was that she could not remember whether the TV in the accused’s room was near the video recorder or DVD player. [M] agreed there was no DVD or video recorder in the lounge room. She recalled that there was a PlayStation in the lounge room with the TV. [M] disagreed that the PlayStation was bought for her by the accused after the death of [LP]. Her evidence was that the accused had purchased this for himself. The accused also had an iPod that was connected to a speaker and tablet with a stand. [M] said she was allowed to play on the PlayStation and would do so in the lounge room. [M]’s evidence was that the accused had mobile data which allowed for Wi-Fi in the house. This is something that [M] would connect to when she visited the accused. The following was then put to [M] about her phone usage:49 Q At night-time when you were playing on your phone using that data you would do that in the spare room, wouldn't you. A Or in his room. Q You told us when Ms Andersen was asking you some questions that you used to ask your parents to be allowed to go to the accused's house, do you remember saying that. A No. Q When you first started to go to visit your grandfather after your grandmother died, you wanted to go and visit, didn't you. A Yes. Visiting the accused 62 [M] agreed that when [LP] died, she wanted to go and visit the accused.50 It was put to her that she would ask her parents if she could go and visit him. [M]’s evidence was that she could not remember. In relation to visiting the accused, [M] gave the following evidence:51 48 T73.7. 49 T76.3. 50 T76.12. 51 T76.19. -- 16 of 84 -- [2024] SADC 64 15 Q Now, you have told us about something that happened when you were about 13, do you remember answering some questions about that just before. A Yes. Q On that occasion that was an occasion where you wanted to go visit your grandpa, wasn't it. A Yes. Q That was a visit where it was just going to be you on your own going to visit. A Yes. Q You were not only wanting to go and visit but happy to go and visit on your own, weren't you. A I wouldn't say I was happy. I wanted to go but I wasn't happy about it. Q Well, when you say you wanted to go, you were the one that raised this as an idea, that is with your parents, to go on that occasion, weren't you. A I don't remember. 63 [M] said that she did not enjoy visiting the accused notwithstanding the fact she would make the effort to ask whether she could go to visit him.52 She said she would feel uncomfortable visiting due to the alleged acts that were perpetrated on her. [M] rejected the suggestion that if she was truly feeling uncomfortable, she would not visit the accused, she went on to explain that she didn’t have a choice and that she was felt guilt tripped into going.53 [M] ultimately said that whilst she felt uncomfortable, she agreed that she did not feel uncomfortable enough to the extent that she would not visit.54 Police statements 64 Under cross-examination, [M] agreed that she understood with every statement that was signed, that it was significant that she included all the important details and that everything was accurate.55 She also understood that this was made very clear to her by the police. Apple cider/alcohol 65 [M] agreed that the accused would keep apple cider in the fridge of his house.56 It was then put to [M] that the accused would have some extra cider that he would keep in the laundry. [M] said she was unaware of this. [M] disagreed with Ms Barnes’ suggestion that she would help herself to the cider. In cross- examination, it was put to her that she was caught drinking cider and was 52 T76-77. 53 T78.9. 54 T78.17-22. 55 T84.11-18. 56 T85.28. -- 17 of 84 -- [2024] SADC 64 16 subsequently reprimanded by the accused. [M] gave evidence that she could not recall this happening. The following was then said on this topic:57 Q What I am suggesting to you is that because you thought it was cool to drink when you went to grandad's house, grandpa's house, you would help yourself to something to drink. Is that what happened. A Yes. Q And you would go and get a cider from the fridge and take it to the spare room to drink. A Yes on that one occasion. 66 [M] then disagreed that the accused never gave her alcohol. Her evidence was that he did. She also disagreed that the only time she had alcohol is when she went to get it herself. 67 [M] was asked about the time where she was at the accused’s house, and she drank what she believed was wine in shot glasses. It was put to [M] that that was something cool to do at 13, namely drinking alcohol. She said that this incident occurred before she was 13. It was then put to her that this memory with the accused was not included in her statement despite her stating earlier that she understood the importance of giving police all important details. [M] agreed that this memory was not included in any of her statements. The following passage occurred:58 Q Is that something extra that you've just made up now. A No. Q That's something that never happened, is it, that there was any alcohol in shot glasses at grandpa's house. A No, it did happen. Sleeping in the accused’s bed 68 [M] disagreed with the suggestion that once she reached the age of 10, she stopped sleeping in the accused’s bed. It was also put to her that when she was young and sleeping in the accused’s bed, the accused had told her that if he was too close to tell him and he would move away. [M] disagreed. [M] also disagreed that the accused had a rule which was ‘you tell me if I get too close and I’ll move away’.59 [M] agreed that the accused would wear pyjama bottoms to bed, however she did not know whether the accused was wearing underwear underneath these bottoms. 57 T86.14. 58 T87.20. 59 T88.24. -- 18 of 84 -- [2024] SADC 64 17 Potential for contamination 69 [M] disagreed with the suggestion that she had talked to [O] and [T] about the incidents she experienced with the accused.60 It was put to [M] that she had talked to her mother about the incidents. [M] sad she had, but only to a certain extent. Following on from this, it was suggested that when she told her mother about the incidents, her twin sisters were present. [M] disagreed. [M] gave the following evidence in relation to discussing her grandpa’s actions with [T] and [O]:61 Q Well, I want to read you something from your statement. In your statement you said this, [M], 'Since I found out what happened to [T] and [O] though, our relationship has gotten stronger, they have been a good emotional support'. So you'd agree with me that you do know what has happened to [T] and [O]. A I know that they were touched inappropriately. They didn't tell me themselves. My mum told me. I don't know exactly what happened to them, and we haven't openly discussed it with each other, but our relationship is still very close. Q What I want to suggest to you, [M], is that you have talked to both of your twin sisters about what they say grandpa did to them. Do you agree or disagree with me that you have talked to them about it. A I disagree. 70 Following from this, Ms Barnes put to her that she had told her sister/s what the accused did to her. [M]’s evidence was that she had not told them. [M]’s statement was then put to her, specifically that she stated the following: ‘sometimes I want to talk to my sisters about what’s happened, but I struggle to’.62 [M] agreed that she had put this in her statement. 71 Throughout her evidence, [M] disagreed with the suggestions relating to her having discussed evidence with her sisters. Her evidence was that her sisters knew she was assaulted. That was because when she found out her little sisters were assaulted, she said to her mum ‘he did that to me too, that’s why I didn’t go back’.63 [M] gave evidence that her sisters were at her mother’s house. She said that she did not know where they were in the house. It was then suggested that at least one of the younger sisters was present in the room during this conversation, to which she replied that she was unsure whether this was true.64 Showers and bathroom (uncharged act) 72 The layout of the accused’s house was again put to [M]. [M] gave evidence that there were two toilets and in one of those toilets, there was a shower (the bathroom). [M] disagreed with Ms Barnes’ suggestion that the only time the 60 T89. 61 T89.4. 62 T91.4-7. 63 T91.14. 64 T91.32. -- 19 of 84 -- [2024] SADC 64 18 accused had seen her have a shower was whenever the accused was already in the bathroom first using the toilet.65 [M] rejected the suggestion that there was never a situation where the accused stood at the door or came in whilst she was having a shower. Suggested inconsistencies 73 Ms Barnes, in cross-examination, put various suggested inconsistencies with [M]’s evidence to her in relation to count 1 on the Information. I outline below the suggested inconsistencies and [M]’s response. 1. Difference in dates 74 In examination-in-chief, [M] gave evidence about an incident when she was 13 years of age where she says that she asked for the accused to pick her up as she knew he would purchase her alcohol. 75 In cross-examination, when the same topic was revisited, [M] gave evidence that she does not remember if the accused picked her up or whether she was dropped off by her parents. The following was then put to her:66 Q So today you now don't remember whether he picked you up or whether you were dropped off, is that what you're saying. A I remember being in the car with him when I asked if he could buy me the alcohol and he said yes, and from that point that's when we went to the shop. I stayed in the car but I don't have any memory of if that same drive was from Murray Bridge to Adelaide, or if I was dropped off and we later went on for a drive. 76 The key feature on the cross-examination of this topic was the suggestion that this sexual incident occurred sometime after [M]’s 13th birthday. [M] agreed with this. [M] gave evidence that she is unsure of the precise date this incident occurred. It was then put to her that she had put something different in her statement, namely that this occurred at the start of 2017 around her birthday. [M] said whilst she accepted this was the date included in her statement, she did not agree with it. 2. Positioning on bed 77 Another inconsistency that Ms Barnes raised was in relation to [M]’s positioning on the bed. [M] said in her evidence that at the beginning of the incident of digital penetration, she went in the bedroom and sat on the edge of the bed. It was [M]’s evidence that she had her legs down over the edge of the bed, and was on the side of the bed closest to the door. However, [M] accepted that in her police statement she stated that she had sat at the head of the bed with her back 65 T92.10. 66 T92.32. -- 20 of 84 -- [2024] SADC 64 19 against the headboard and her legs crossed on the mattress. [M]’s explanation for the inconsistency was the following:67 Q That's different, isn't it, to what you have told us in court that you went and sat on the edge of the bed. A Yes, that was the first position. Q What was the first position. A Sitting on the edge of the bed. Q That's not in your statement, is it. A No, it's not. Q Is that because that's an extra bit that you have just made up when you have been telling us about this. A No, it's not. 3. Positioning of legs 78 A further inconsistency raised by Ms Barnes was that [M] gave evidence that during this incident, the accused was sitting on her legs. [M] gave evidence that the particular position the accused was in when he touched her vagina was him leaning over her with his body touching her. Her legs were still crossed when her pants were pulled down. It was then put to her in her police statement she said that the accused managed to uncross her legs and spread them. [M] agreed that she put this in her statement but gave further evidence that she could not remember saying that.68 She then conceded the version of events in her police statement was not what happened. [M] disagreed with Ms Barnes’ suggestion that this incident did not happen and that she was just making it up.69 4. The accused’s entrance to the bedroom 79 A further suggested inconsistency was the fact that [M] never mentioned in any of her police statements that the accused jumped on her after entering the bedroom. In her police statement she stated that when the accused came in the room, he stood at the end of the bed, leant forward, and used both hands to grab her ankles and pull her closer towards him. [M] again gave evidence that she could not remember putting this in her statement and maintained that this did not happen.70 It was then put to her that she said in her statement that she tried to scrunch her legs up towards her chest. [M] gave evidence that she accepted that was in her statement but could not remember saying that and maintained that it did 67 T104.5. 68 T105.13. 69 T105. 70 T106.32. -- 21 of 84 -- [2024] SADC 64 20 not happen.71 Rather, she said she kept her feet crossed, and had her hands across her chest. 5. The accused pulling [M] 80 A further suggested inconsistency raised was that in [M]’s police statement, she stated that the accused kept pulling her closer towards the end of the bed, lifting her feet up towards the roof, almost up to his shoulder. [M] agreed she put this in her police statement, but disagreed that this happened.72 [M]’s evidence appeared to give no explanation as to why her evidence differs from that of what is stated in her police statement. 6. The accused pulling [M] (No 2) 81 Another suggested inconsistency raised was that in [M]’s police statement, she stated that the accused stood at the end of the bed and leaned forward, using both hands, he grabbed her ankles and pulled her closer towards him. [M] agreed this was in her statement. [M] was then asked whether this didn’t happen. Her evidence was ‘I don’t remember saying that to the police’.73 [M] did not give any reason as to why her police statement was not the correct version of events. 7. Positioning of [M]’s legs 82 Another suggested inconsistency raised was that in [M]’s police statement, she stated she tried to scrunch her legs up towards her chest and that she was confused as to what was going on.74 She agreed this is what she said in her police statement but disagreed this occurred and does not remember saying this to police. [M] did not give any reason as to why her police statement was not the correct version of events. 8. Clothing 83 Under cross-examination [M] gave evidence that the accused had his knees on the side of each of her legs. She said that she was wearing swim shorts at the time of this incident.75 However, it was put to her that in her statement to police, she described what she was wearing as ‘pants’. When providing an explanation for the inconsistency, the following exchange occurred:76 Q What did you mean when you used that description 'pants' to the police. A That was just my terminology but I was wearing shorts for that incident. Q You had underwear on as well. 71 T107.25. 72 T107.25. 73 T107.36. 74 T108. 75 T98.20. 76 T98.26. -- 22 of 84 -- [2024] SADC 64 21 A Yes. Q You said that the use of that word 'pants' was your terminology, do you agree with me that you didn't tell the police that they were actually shorts. A Yes, I could have made that clear but I didn't. Q Is that because this never happened and you're not sure what you were wearing at all because it's made up. A No, I know what happened, I know what I was wearing. 84 Following that passage, [M] was asked whether she was trying to suggest that the accused was able to take her shorts and underwear off whilst her legs were crossed.77 85 [M] gave evidence that she never said that he removed them and they were just resting on her thighs, which left him enough room to slip his hand in between.78 Black silk robe 86 In cross-examination, Ms Barnes revisited the topic of the black silk robe. [M] agreed that she would wear this robe sometimes. She also agreed that these gowns might have been considered as warm dressing gowns.79 87 [M] agreed in evidence that whenever she had visited the accused, she could borrow any of the gowns, namely the warmer ones or the black silk one. She also agreed that her sisters could borrow it too. It was then put to her that the black robe that she mentioned in her evidence was actually her older sister [K]’s robe. [M] disagreed with this suggestion.80 It was put to her that it was a robe that was purchased from Kmart by [K] when she went to visit the accused on one occasion. [M] said that she was not aware of this.81 [M] gave evidence that she had never seen [K] wear this robe. 88 [M] was shown Exhibit D3, the photograph of [K] wearing a robe at the accused’s house.82 [M] gave evidence that this was the first time she had seen this photograph. She repeated that she had never seen [K] wear that robe. 89 The following was then put to her:83 Q Well, that's not right, is it, because you have seen her wear it, haven't you. A Just now, yes. 77 T99.1. 78 T99.4. 79 T109.36. 80 T110.16. 81 T110.19. 82 T110.37. 83 T111.1. -- 23 of 84 -- [2024] SADC 64 22 Q No, but in person you've seen her wear it. A Not that I remember. 90 Exhibit D4 was then shown to [M] which depicted [K] cleaning cupboards at the accused’s house whilst [M] was playing the PlayStation in the background. The photo was taken in the lounge room of the accused’s house. It was then put to [M] whether this photograph assists in her memory of [K] wearing a robe. [M] gave evidence to the contrary and said that she still was unable to remember.84 [M] was unable to say how old she was in the photo in Exhibit D4. [M] disagreed with Ms Barnes’ suggestion that the accused never asked [M] to wear the robe and dance for him. [M] disagreed with Ms Barnes’ suggestion that the accused never tried to give her money to wear the robe.85 It was also put to her that the accused never made her wear the robe to bed. [M] explained that he tried, but she did not acquiesce.86 Tongue in ear 91 Ms Barnes revisited the topic of the accused sticking his tongue in [M]’s ear. This is the behaviour that amounts to particular (c) under count 1 of the Information. 92 [M] agreed in evidence that she had heard the words, or term, ‘wet willy’.87 [M] agreed that she understood this to mean when you put your tongue in someone’s ear as a joke. She agreed this is what the accused used to call it. The following was then put to her about the accused’s behaviour in terms of sticking his tongue into her ear:88 Q You said yesterday that when grandpa tried to put his tongue in your ear he would make it a joke, is that right. A Yes. Q It was a joke, wasn't it. A Not for me. Q That was something that grandad used to do and laugh when he was doing it, wasn't it. A Yes. 84 T111.24. 85 T111.37. 86 T112.3. 87 T112.5. 88 T112.13. -- 24 of 84 -- [2024] SADC 64 23 Hand resting on genitals 93 Ms Barnes moved to the topic of [M] waking up and realising that her hand was down the accused’s pyjama shorts. This relates to particular (a) of count 1 of the Information. 94 [M] was reminded that earlier on in her evidence she told the Court that when she woke up, her hand was in a fist. [M] agreed that this was her evidence. [M] then gave evidence that the accused’s genitals were on top of her hand. It was then put to [M] that she said earlier in her evidence that her hand was resting on the accused’s genitals. [M] gave evidence explaining this inconsistency by saying that she didn’t mean on top of the accused’s genitals and meant they were resting with it and his genitals were touching her.89 She did not mean resting on top. She then gave evidence that the accused’s penis was on top of her thumb. She also added that her hand was below his testicles. She could not remember how her hand came to be in that position.90 Pornography 95 [M] was reminded about the time when she thought she saw the accused watching pornography, and that her sister [T] was hiding behind a hallway door looking into the lounge room. This alleged incident does not constitute any charged act on the Information. 96 [M] was asked how she knew porn was on the TV. [M] said that she saw a nude woman on the screen,91 she also said that she had seen pornography before. It was then put to [M] that from her position she could not actually see what was on the tv. Her evidence was that she could. [M] agreed that [T] was hiding behind the door and that the accused could not see her. It was ultimately suggested to her that what was on the tv was a normal movie and was not of a pornographic nature. [M] gave evidence that it was, and said that it was in black and white, and featured a nude woman on the screen. It was put to [M] whether she agreed that it could have been a normal movie. [M] could neither agree nor disagree. Re-examination Sleeping with the accused 97 In re-examination, [M] was queried as to how the accused would make her sleep in his room. [M] gave evidence that he would try and persuade her. [M] could not recall what he would say during these attempts to persuade her. She also could not recall what she would say when she argued with him.92 89 T113.16. 90 T114.12. 91 T114.23. 92 T116.28. -- 25 of 84 -- [2024] SADC 64 24 Cider incident 98 When [M] gave evidence that she would help herself to the cider, she explained that she was referring to the incident when she was 13 years old. She confirmed this occurred after having the conversation with the accused about buying her alcohol.93 Digital penetration 99 In re-examination, [M] was asked whether she remembered when Ms Barnes questioned her about the incident where she gave evidence that she was wearing pants in her police statement and did not tell the police they were actually shorts. It was then asked whether the police asked any question to clarify what kind of pants she was describing. [M]’s evidence was ‘no’.94 Knowledge of twin’s situation 100 It was confirmed in re-examination that [M]’s mother was the one who told her what had happened to her sisters. It was further confirmed that [M] was aware that her sisters had been touched inappropriately by the accused, however that was the extent of her understanding.95 The accused jumping on [M] 101 Further re-examination was conducted by Ms Andersen to clarify what [M] meant by the accused ‘jumping’ on her. [M] gave the following evidence:96 Q What were you trying to describe by using the word 'jumped'. A That he had got on top of me, he had gotten - he'd gotten over my legs. I don't remember jumped, leapt, how he got there but I just remember that moment I froze with (DEMONSTRATES) my arms on my chest. Q So you were using the word 'jumped' to describe him becoming on top of you, is that right. A Yes. Examination-in-chief of complainant [O] 102 [O] is the second complainant in this matter. Her allegations give rise to count 3 of the Information, namely maintaining an unlawful sexual relationship with a child. Police record of interview 103 [O] participated in a record of interview with Senior Constable Cooper on 4 November 2021. This interview was played in Court and tendered as Exhibit P5. The interview was admitted pursuant to s 13BA of the Evidence Act (EA). 93 T117.7. 94 T118.4. 95 T119. 96 T119.25. -- 26 of 84 -- [2024] SADC 64 25 The statutory prerequisites for admission of the interview were met, in particular, s 13BA(3)(b) of the EA. 104 At the time of the interview, [O], who was born on 9 November 2009, was 11 years of age. I note that in various times of [O]’s record of interview, there is repeated reference to ‘us’ or ‘them’, presumably referring to her and her sister [T]. When [O] was asked what she had come to talk to the police about, she stated she was there to talk about her grandfather always touching her and her sisters and how he would frequently wake them up at 2 in the morning and start touching them. There is no definitive age as to when this alleged offending occurred, but based on the interview, it is possible that she was aged 5, 6 or 7 years of age.97 Frequently, it is not clear from the interview whether what was being described related to charged or uncharged acts, or both. Townsville incident (uncharged) 105 A particular incident [O] recalled is when she was in Townsville. This incident that [O] recalls is an uncharged act, and does not relate to any of the charged offending on the Information. The uncharged offending seems to be the focus of the interview. 106 It is common ground that the accused, his son [MP], and the complainants [O] and [T], took a caravanning holiday to Queensland in 2021. The prescribed interviews of [O] and [T] disclosed various events of discreditable conduct during the course of this trip. 107 The common, undisputed evidence of the caravanning trip was that [O], [T], their father, [MP], and the accused, took a family holiday to Queensland together in 2021. The family lived with each other in the relatively close confines of a caravan. 108 Whilst on the trip, [O] described the accused starting to lick his fingers and touch her ‘vagina and stuff’.98 She said he was rubbing with his fingers. Beyond describing the rubbing sensation, [O] was only able to say that he continued to touch ‘it’. She said that whilst this was occurring, the accused would lay on his back, lick his fingers repeatedly and stare at the roof.99 [O] was just standing there and trying to move away and pull her pants up. [O] stated in the interview that [T] and her dad were sleeping on the other side of the caravan.100 [O] was originally sleeping, and the accused had woken her up and turned her on her back as she was laying on her side. She stated that her clothes were put down to her ankle. She believed this lasted for ‘like 5 minutes or something’. She said the accused throughout this incident audibly asked her if she wanted him to stop. 97 MFI P5A pp 29, 31. 98 Ibid at p 13. 99 Ibid at p 14. 100 Ibid. -- 27 of 84 -- [2024] SADC 64 26 109 In response, [O] said ‘yes’, and then the accused asked her if she was scared and she said ‘yes’. The accused then told [O] he would not do it again. After the accused said this, [O] said that he just went back to sleep. [O] then pulled up her pants and went back to sleep. [O] recalled that she was wearing pyjamas but does not remember which ones she was wearing. When asked if anything happened in the morning, she said that she slept in a little longer and that the accused woke her up and breakfast was ready.101 When asked whether she told anyone about this, she said only her sister [T]. Charged offending Sleeping with the accused at home 110 [O] stated that she and [T] would sleep in the accused’s bed because they were scared of the dark when they were younger. She stated that she would sleep on one side and [T] would sleep on the other side. The accused would be in the middle. [O] stated in her interview that the accused would shove one of his hands down her undies and his other hand down the undies of [T]. This occurred under the clothing. Whilst under the clothing, she said he was rubbing.102 [O] believed she was probably 5 or 6 years old at the time. 111 During this incident, [O] stated that the accused would make both of their legs go over his legs and that she could feel his penis. She said that this happened on more than one occasion. Kissing the accused 112 [O] stated that every kiss they would give the accused, they would get money. It would seem that this allegation related to a group kiss on Christmas morning, in the presence of their parents when the group split $160 between them. [O] described it as being a kiss on the lips. 113 She also recalled when going to his house, the accused would make them sit on his lap and have his hand on their butt, underwear, and start kissing them.103 [T] would sit on his lap first, and then [O] would get on his lap.104 She said he would also rub her legs and bum. The kissing in these cases would also occur on the lips. She described it as a bunch of kisses. This made her feel uncomfortable and awkward. The rubbing of her bum occurred over the clothing. She could only remember this happening once. 114 It is this conduct that gives rise to particulars (b) and (c) as in Count 3. Swimming in Cairns (uncharged) 115 Whilst in Cairns, there was a swimming pool that the accused would let them swim in. [O] stated that whilst in the swimming pool, the accused would grab 101 Ibid. 102 Ibid at p 30-31. 103 Ibid. 104 Ibid. -- 28 of 84 -- [2024] SADC 64 27 ‘them’.105 He would hold her by the waist which made her feel uncomfortable. [T] and her father were present during such incidents, but her father was outside of the pool. [O] stated that the accused would do this when her father was not paying attention.106 [O] stated that they would sit on the little bench in the corner and then the accused would grab her and [T] by their waist. The accused would then suggest that both [T] and [O] should dive under his legs.107 She then recalled that he would try to do that and then he used to pull them up so they could touch his dick.108 [O] was asked how many times this happened. She stated that they used to go to the pool every day when they were in Cairns. [O] was asked to provide further information as to what would happen when they would dive between the accused’s legs. She said that the accused would push both [T] and her bum together and ‘touch their arses’. In terms of which body part would touch the accused’s dick, [O] said her back and arses.109 After coming out of the water, she stated that the accused would grab them and put his hands underneath her vagina and just hold them there. [O] said they would try to swim away. Incident in unknown town (uncharged) 116 [O] recalled another incident with the accused but could not recall the particular town of where this occurred.110 This occurred on the first night of the trip and [O] and [T] wanted to sleep with their dad because they did not want to be touched. [O] ended up having to sleep with the accused. Whilst in bed, [O] said that the accused started putting his hand down her pants. She said this occurred under the clothing. His hand remained there for the whole night. She said this occurred on the very first night of her holiday. She said this was a little town and could not recall whether it was in South Australia or Queensland. She said this made her feel very uncomfortable. Evidence in court 117 At the time of giving evidence in Court, [O] was 13 years of age. She was in year 8 at school. [O] gave evidence that her mother is [JP] and that her father is [MP]. Her evidence was that she has a twin sister whose name is [T]. She has other brothers and sisters whose names are [B], [W], [D], [M], [K], [C], [J] and [Z]. All of these siblings are older than [O]. [O] was able to recall her paternal grandparents’ names, and identified them as [LP] and the accused. 105 Ibid at p 19. 106 Ibid at p 18. 107 Ibid at p 19. 108 Ibid. 109 Ibid. 110 Ibid at p 21. -- 29 of 84 -- [2024] SADC 64 28 Toilet incident in Queensland (uncharged) 118 The toilet incident that [O] had previously mentioned in her police interview was put to her. [O] remembered that the accused took a photo of her on the toilet and that she told police as such. The following passage transpired in evidence:111 Q You told the police officer that before this happened that something was being unzipped. A Yeah, coz on the toilet there's like a little zip thing that leads into the cavity. Q So the toilet was like there was an attachment to the caravan, is that what you are saying. A Yes. Q Can you describe what that attachment part looked like. A It was just like grey and it was just unzipped. Q There was a toilet inside this structure, is that right. A Yep. Q You said that was unzipped. Who unzipped that. A It was already unzipped. Q There was a photo that was taken of you on the toilet, is that right. A Yep. Q Who took that photo. A The accused. 119 Upon the photo being taken, [O] gave evidence that this photo was then showed to her by the accused. As the accused showed her this photo, she said he had zoomed in on her private parts. When further clarification was sought by what she meant by private parts, [O] clarified that she meant her vagina. [O] recalls that the accused did not say anything throughout this incident. [O] was then asked whether the accused showed the photo to anyone else. [O] gave evidence that he showed the photo to her father but only zoomed up on her face and not her vagina. Incidents at the accused’s house (charged offending) 120 [O] was reminded in evidence that she told the police officer that something had happened in bed with the accused at his house. [O] agreed in evidence that she told the police officer that the accused put his hands down her and [T]’s clothing, and started rubbing her stuff.112 When further clarification was sought about what 111 T129.7. 112 T130. -- 30 of 84 -- [2024] SADC 64 29 she meant with the word ‘stuff’, [O] gave evidence that she meant her vagina and arse. When asked how often this would occur, [O]’s evidence was that this would mainly occur every night that they would sleep with him. Cross-examination Visiting the accused’s house 121 Ms Barnes, in cross-examination, began with the topic of visiting the accused at his house. [O] agreed that the accused would come to pick up [O] from Murray Bridge from time to time. [O] also agreed there were times that her older sister, [K] was there. She also agreed that all four sisters would be there as well.113 It was put to [O] that when she would go to visit the accused in Adelaide, he would take her out to the shops and buy her things. [O] said she could not remember. For example, she could not remember going to K-Mart and having clothes bought for her. It was put to [O] that when she would visit the accused, he would take her out for junk food or to a restaurant. [O] said that this would sometimes occur. 122 [O] agreed that uncle [A] lived next door to the accused. She also agreed that she could basically go over to uncle [A]’s whenever she wanted whilst at the accused’s house.114 It was then put to her that uncle [A] used to come over to the accused’s house all the time whilst she was there. She agreed with this. Whilst uncle [A] came over, he would watch TV with [O]. [O] agreed that this would occur during the day, but she could not remember if it was the same at night- time. The layout of the accused’s home was then introduced. The following passage occurred in cross-examination:115 Q Grandpa's house had two bedrooms and then another room that was an office, didn't it. A Yep. Q One of those bedrooms had bunk beds in it, is that right. A Yeah. Q That room with the bunk beds in, is that the room that you would sleep in when you visited with your sisters. A Yeah. 123 Further, in cross-examination, [O] confirmed in evidence that when all four sisters had slept at the accused’s house ([O], [T], [K] and [M]), they would all sleep in the spare room together.116 [O] agreed this was the same arrangement if it was 113 T133. 114 T134.7. 115 T134.29. 116 T135.3-5. -- 31 of 84 -- [2024] SADC 64 30 only [O], [T] and [M] staying. However, when it was just [O] and [T] staying they would not sleep in the spare room. Collusion 124 Ms Barnes reminded [O] that in her police interview, she said that she was in the room when [M] talked to her mother about what had happened to her with the accused. [O] was asked to identify which room that she was in whilst she heard this conversation. Her evidence was that it was her mum and dad’s room. When asked who was present in the room, [O] said in evidence that it was her father and [T]. [O] said she did hear [M] talk about her experience with being touched by the accused. She was asked what she heard [M] talk about. She gave the following evidence:117 Q What did you hear [M] talk about. A I just heard her say that 'He did it to me too'. Q What did you understand her to mean when she said 'He did it to me too'. Did you understand what she was saying. A Yeah. HIS HONOUR Q What did you think that meant. A That he was touching her too. 125 [O] confirmed in evidence that this conversation that her mother had with [M] occurred after she had told her the accused was touching her inappropriately.118 126 [O] said that [M] had never spoken to her about the accused’s inappropriate touching. [O] was asked whether [M] talked to her before the above passage about inappropriate touching. She said no. 127 [O] was reminded that in her police interview, she told the interviewer that the accused used to touch her older sister [M] and she thought if she would let him do it to her, he would not do it to them. 128 [O] said that the only time she heard [M] discuss the accused touching her was when she overheard the conversation between [M] and her mother; [O] said she was not aware that [M] had been touched prior to staying at the accused’s house. The following proposition was then put to [O]:119 117 T139.16. 118 T139. 119 T140.23. -- 32 of 84 -- [2024] SADC 64 31 Q I am going to suggest something to you and you can agree or disagree with me but what I am going to suggest to you, [O], is that you had been told by [M] some time before you told your mum about it that she had been touched inappropriately by grandpa. Is that right, that she told you before that day. A Can't remember. Kissing 129 The topic of kissing was revisited in cross-examination. [O] agreed that the accused would give a kiss to all of the family. She agreed that he would give a hello and goodbye kiss. [O] agreed that the accused would also kiss her when other people in the family were present.120 Toilet incident in Queensland (uncharged) 130 The incident in relation to the photograph of [O] in the toilet was revisited. [O] agreed that the toilet was actually inside the caravan. [O] agreed that the ‘zip’ she had mentioned could be described in the following way:121 Q And when you talk about something being unzipped, was that sort of like a bit of canvas so that if somebody was having a shower it might be zipped up so you couldn't see inside. A Yeah. 131 [O] agreed that the accused showed the photograph of her on the toilet to her father. She also agreed that she and her father began laughing. However, she said that she did not actually find it funny. [O] agreed that the photo depicted her face with an expression of a bit of shock or surprise on her face. 132 A booklet of photographs from their holiday was then shown to [O]. [O] agreed that this was a booklet that she had seen before. This was Exhibit D6. [O] agreed that the said photograph of her in the toilet was in that booklet. She agreed that her mother and father had seen this booklet. When shown the photograph of her on the toilet, it was put to her that her vagina was not visible in it. Her evidence was that the image had been cropped.122 It was put to her that the image never displayed her vagina. [O] gave evidence that the accused was zooming in to see if he could see her vagina. [O] agreed that the accused took the photograph when holding his phone over the top of the zip toilet. [O] agreed that the accused was not inside the zip toilet. [O] disagreed however that the photo was immediately shown to her father. The following evidence transpired in relation to the visibility of [O]’s vagina in the photo:123 120 T140. 121 T141.5. 122 T144.20. 123 T145.6. -- 33 of 84 -- [2024] SADC 64 32 Q When dad was shown the photograph, it was still the photograph on the phone, wasn't it. A Yeah. Q Not a cropped version shown to dad. A No. Q And you couldn't see your vagina in the photograph, could you. A No. Q You couldn't see your bottom in the photograph, could you. A You could but just where he's cropped. Q Well, you were sitting on the toilet when the photograph was taken, weren't you. A Yeah. Q Sitting on your bottom. A Yeah. Q So you couldn't see your bottom in the photograph, could you, because you were sitting on it. A You could see my legs and - yeah. Inappropriate touching 133 [O] disagreed with Ms Barnes that it was never the case that the accused touched her inappropriately.124 [O] further disagreed in evidence that the accused never touched her inappropriately when he was in the bed with her.125 134 It was put to her that there was never a time at the accused’s house that he touched her vagina. Her evidence was that there was. The topic of invention/imagination arose, and the following was said:126 Q Have you got confused about what you heard from either [M] or [T] about what grandpa - what they say grandpa did to them. A Can't remember. Q And has what they've said made you think that something might have happened to you. A No. 124 T146 125 T146. 126 T146.26. -- 34 of 84 -- [2024] SADC 64 33 135 [O] agreed with Ms Barnes that the inappropriate touching at the accused’s house is something that was talked about with [T] on more than one occasion. [O] rejected the suggestion that she was merely repeating a story to the Court that [T] had told her. Her evidence was no. It was again put to her that nothing happened to her at all. She rejected this suggestion. Examination-in-chief of complainant [T] 136 [T] is the third complainant in this matter. Her allegations are subject to count 4 of the Information, namely maintaining an unlawful sexual relationship with a child. Police record of interview 137 [T] participated in a record of interview with Senior Constable Cooper on 4 November 2021. At the time of this interview, [T] was 11 years of age. This interview was viewed in Court and tendered as Exhibit P7. The statutory prerequisites for admission of the interview were met, in particular, s 13BA(3)(b) of the EA. Cairns trip (uncharged) 138 [T] said the last time the accused touched her inappropriately was when they were on holiday in Cairns.127 During this holiday, they stayed in a caravan where the accused would sleep on one side of the caravan and her father would sleep on the other side. [O] and [T] would take turns as to who would sleep with the accused.128 She recalled that [O] slept with the accused the first night of the holiday. However, [T] recalled that no inappropriate touching occurred on the second night and she could not remember much. She remembered that he was rubbing her stomach on this night, under her clothing. She said on the second night he was rubbing her stomach and then began touching her inappropriately. When asked what she meant, she said her ‘private part’.129 [T] said that her private part is her vagina. She said he would lick his fingers and rub it. She said this occurred under the clothing. When asked what she was wearing to bed, she said she was wearing shorts and a t-shirt, as well as knickers. 139 [T] said after the accused started to touch her vagina, the accused would put his hands under her shorts and undies, and then he would start to lift her top and rub her stomach.130 140 [T] recalled that, at the time of this touching in the caravan, the accused was talking about whether she was enjoying the holiday and what should they do. 127 MFI P7A p 4. 128 Ibid at p 5. 129 Ibid at p 6. 130 Ibid at p 7. -- 35 of 84 -- [2024] SADC 64 34 [T] recalled that the accused was just touching her with one hand. When asked what the accused was wearing, she said he was wearing ‘silk short thingys’.131 141 She said [O] and her father were also in the caravan, but they were sleeping. She did not know how long this incident lasted for. She said it felt like a long time. [T] said she was unsure how long this incident lasted. [T] said she fell asleep prior to the accused, but believed the incident stopped because he fell asleep.132 She said that prior to the accused falling asleep, he was rubbing up and down on her private part and only used his hand to do so. She said she felt two fingers. 142 [T] said the following morning felt normal and that the accused did not discuss the incident. [T] said the accused would repeat this behaviour on the other nights of the holiday. She was not able to provide any further details about other similar incidents. 143 When Senior Constable Cooper asked [T] whether anything happened prior to being touched when she was asleep, [T] responded, ‘not that I know of’.133 Recollection of last incident (on holiday) 144 Further in [T]’s record of interview, she described the last incident that she can recall. [T] was unable to recall where or when this occurred. This final incident relates to an uncharged act. 145 When asked what she remembered from the last time the accused touched her, she said she could not really remember, and then later stated that she ‘kinda’ remembers the accused pushing her hand down his pants.134 She said that the accused told her to rub his stomach, and then he said that she should go down his pants. When she failed to do so, he pushed her hand down his pants. She said he made her hand touch his private part. She said that the accused said that was an accident and that people do that all the time. When asked what she meant by private part, she said ‘his nuts’.135 [T] recalled this occurred under the clothing. [T] remembered the accused would pull her hand down to force her hand to his private parts. [T] said that the accused would show her how to rub his stomach. She said that the accused asked her if she was scared. [T] said she responded by saying ‘no’ because she was scared.136 [T] believed that the accused made her touch his testicles about two times under his clothing, as she was trying to pull her hand back. When he began to rub her, the accused pulled down her shorts and undies. The accused lifted her top. The accused continued to rub her stomach and vagina. [T] recalled that the accused was licking his fingers and ‘going up and down’.137 [T]’s evidence was that the accused did this for 20-30 minutes. She recalled that 131 Ibid at p 8. 132 Ibid at p 9. 133 Ibid at p 10. 134 Ibid at p 12. 135 Ibid at p 13. 136 Ibid at p 14. 137 Ibid at p 16. -- 36 of 84 -- [2024] SADC 64 35 she then fell asleep. This incident is alleged to have occurred within the confines of the caravan in proximity of [MP], the father of [T]. Visiting the accused’s house Touching their bum 146 [T] said that she had been touched multiple times when they stayed over at the accused’s house.138 Senior Constable Cooper asked [T] to tell her what she remembered about the first time she was touched at the accused’s house. [T] proceeded to recall an incident but not the first one.139 She said that the accused would tell them to come into his room and lay next to each other. He would then put his hands in their pants and on their bum. This occurred under the clothing. When asked who she meant by ‘we’, she said her and [O]. When asked how she knew that the accused was touching [O], [T] said she would look over and see the accused’s hand. [T] said it was only the three of them when this would occur.140 Touching their vagina 147 Following from the above, [T] recalled that when they were laying by the side of the accused, he would put his hands down, feel their bum and vagina.141 This would occur in his room. He was rubbing it and smacking their bums. 148 During such incidents, [T] described her position on the bed. She said she would lay on top of the blankets and her clothes were ‘down the bum but his hands were underneath out clothes’.142 She said following these incidents the would fall asleep and the accused would keep his hands on their bums. 149 [T] said that the accused was laying on his back when this would occur. She again stated that his hand would be rubbing against her vagina.143 She said this happened during the day. [T] said she felt sore and too scared to move. She said this incident lasted for approximately 15 to 20 minutes before they fell asleep.144 When they woke up, they saw the accused on his phone. She recalled this incident occurring after her grandma died.145 [T] said the way the accused rubbed her vagina during this incident was different to the way he did it when they were on holiday. She explained that during this incident he used most of his fingers and was going side to side.146 [T] said that the accused used two fingers, whereas on holiday he only used one finger. She also noted that the accused did not lick his fingers on this occasion. [T] also recalled that the accused was talking to them and saying what they should do the next day during this incident. 138 Ibid at p 17. 139 Ibid. 140 Ibid at p 19. 141 Ibid at p 20. 142 Ibid. 143 Ibid at p 21. 144 Ibid at p 22. 145 Ibid at p 23. 146 Ibid at p 27. -- 37 of 84 -- [2024] SADC 64 36 Further touching of bum and vagina 150 [T] recalled another incident when she and [O] would be in bed with the accused, and he would tell them to put their legs over his as this is what their grandma used to do.147 Whilst this occurred, he would rub their vagina and bum under their clothing. She said this would occur when she was 8 years of age. No particular details were provided for this incident. Touching of chest and stomach 151 [T] said another area that the accused touched her that she considered to be inappropriate was her chest area. She said this would occur when they were lying in bed, and he would sometimes touch their chest under their clothing.148 She said that this made her feel nervous and scared. She was not able to recall when this occurred; she said she forgot. 152 [T] described that when sleeping with the accused, he would rub their stomachs and put his hands down their pants and touch their private parts.149 She said that the accused knew that he was doing it. She said she believed he was aware of his actions because he continually apologised, but continued to perform the touching. Further, [T] stated that the accused would make her rub his stomach and try to put her hands down his pants. Recollection of final incident 153 [T] said she could not remember the final incident with the accused. She could recall the last time she visited with her sister [K], and they stayed at the accused’s house for the long weekend. She said nothing occurred on this occasion, and that the accused did not touch them. She then recalled that the last time the accused touched her inappropriately was on the holiday. Evidence in court 154 [T] was reminded in examination-in-chief about the incidents where the accused would rub her vagina and bum in bed. [T] gave evidence in Court that this occurred quite a lot. She further confirmed in evidence that every time the accused did this, he would touch both her vagina and her bum. It was then put to her that in her record of interview, she told police that the accused would make them put their legs over his, and he would do the same thing. When asked what this meant, her evidence was that he would continue to rub their vagina and bum.150 She said that this would happen a lot. 147 Ibid. 148 Ibid at p 30. 149 Ibid at p 4. 150 T156. -- 38 of 84 -- [2024] SADC 64 37 Cross-examination 155 In cross-examination, [T] gave evidence that when she went to visit the accused, it would typically be with [O] and [M].151 [T] confirmed in evidence that she would also visit the accused’s house with her older sister, [K]. When they all stayed together at the accused’s house they would sleep in the spare room. On the occasions where she would simply visit with [M] and [O], she agreed that they would sleep in the spare room. 156 [T] agreed that there was a PlayStation that [M] enjoyed playing at the accused’s house. [T] said that she did not know whether [M] would sit up late into the night and play the PlayStation.152 Clothes of the accused 157 [T] agreed in evidence that when the accused woke up in the morning, he would sometimes walk around in his pyjamas. She agreed that the accused would wear pyjama shorts.153 She also agreed that he would wear underwear under his pyjama shorts.154 She agreed that when uncle [A] came over, the accused would still be in his pyjama clothing. [M] and cleaning 158 [T] agreed that [M] would be asked to help with some cleaning around the house. She disagreed that [M] received pocket change from the accused for doing the cleaning. She could not recall this happening.155 [T] said that she did not remember the specifics of the cleaning that [M] undertook. 159 On the same day of the complaint to her mother, she heard [M] say something to her mother about the accused.156 However, [T] gave evidence that she did not hear the details that [M] gave about what the accused did to her. [T]’s evidence was that she did not know where she was when she heard the conversation between her mother and [M]. She agreed that she was at home but was not sure whether she was in her parents’ bedroom. 160 [T] said she had not spoken to [M] about what she had said had happened to her with the accused. The following passage was then put to [T]:157 Q Now, when you talked to the police officer were you telling the police officer about what [O] had told you happened to her. A No. 151 T158. 152 T160.32. 153 T161.30. 154 T161.36. 155 T162.16. 156 T165.32. 157 T167.19. -- 39 of 84 -- [2024] SADC 64 38 Q Because your Grandpa The accused never touched you inappropriately at all, did he. A He did. Q And when you've talked about being touched by Grandpa the accused, for example, down your pants, that didn't happen to you, did it. A It did. Q Are you just remembering what you heard from [O] and saying that to the police and to us. A No. Q Are you confused about what happened to you and what might have happened to [O]. A No. Q Is it mixed up. A No. Response to allegations 161 [T] disagreed with the suggestion that she was just remembering what [O] said happened to her to the police and that she was getting mixed up.158 [T] further disagreed the same explanation existed with her sister [M]. Examination-in-chief of [JP] 162 [JP] is the mother of the three complainants, [M], [O], and [T]. She has a total of seven children. [M] was born in New Zealand. The name of her other children are [B], [D], [W], and [K]. [JP] moved to Australia in 2005 where she settled down at her mother’s house. Whilst living at Murray Bridge, she met a person by the name of [MP]. [JP] then married [MP] in 2010. The children that [JP] and [MP] had together were [T] and [O]. [MP] and [JP] have lived with each other ever since October or November of 2005. 163 [JP] agreed in evidence that [T], [O], and [M] would all go together to the accused’s house. She further agreed that occasionally the twins would visit by themselves, or that [M] would go by herself.159 [JP] was questioned by Ms Andersen as to whether there was any reason why [M] would go by herself, or the twins go by themselves. [JP] gave evidence that it was not very often that they were separated. [JP] said that [M] would visit with the twins to provide assistance with looking after the two of them.160 She said that she would also send [M] down 158 T166. 159 T172.21. 160 T172.26. -- 40 of 84 -- [2024] SADC 64 39 as a holiday. When [M] went by herself, this was her time to escape from the family in the household; to have that time to herself.161 Stopping the attendance to the accused’s house 164 [JP] said that there was a point that [M] stopped visiting the accused’s house. Her evidence was that she was unsure when this occurred. In relation to why [M] ceased visiting the accused’s house, [JP] gave the following evidence:162 A I thought it was more over she wanted to hang out with her family and friends a lot more, because she made a lot of really good friends. That's what I had thought at the time. 165 [JP] gave evidence that although [M] stopped attending the accused’s house, [O] and [T] continued attending the accused’s house.163 However, [JP] said she was unable to say how long after [M] stopped visiting that [O] and [T] continued to go to the accused’s house. She estimated that it was maybe a year, but she could not definitely say. [JP] gave evidence that there was a point where [O] and [T] stopped attending the accused’s house. Cross-examination 166 In cross-examination, [JP] agreed that during the complaint conversation with the twins, they were ‘in sync’.164 However, [JP] gave evidence that this was not a common occurrence for the twins to be in sync and that this was the first time she has seen them be in sync like that.165 [JP] gave evidence that during school and childcare, she would always push for the twins to develop their own identities and have their own space. However, at home they were more of a unit.166 [JP] gave evidence that [O] is more outspoken than [T].167 The following passage shortly after occurred:168 Q Would [O] sometimes talk for [T] or tell you things that [T] wanted to tell you, something like that happened. A Like if they finish off a sentence, something like that, yeah, they would do that. But her name is actually [T], not [T] as you're saying. Yeah, they would do that. They were funny, you know, if anything happened at school, for instance, [T] will have a conversation with me and then [O] will come and talk over, she'll tell me her version and they do finish one another's sentence, which is if they - yeah, which was like wow, you know. Q They would both do that, would they. 161 T172.26. 162 T174.12. 163 T174.16-17. 164 T184.31. 165 T184.34. 166 T184.12-13. 167 T187.13. 168 T187.19. -- 41 of 84 -- [2024] SADC 64 40 A Yeah, they would, they would. I was still getting used to understanding twins, they are my first set of twins, so everything that they did growing up I used to scratch my head and think is that a twin thing, so I'm still learning them. Visiting the accused 167 [JP] disagreed with Ms Barnes’ suggestion that when [M] was about 12 or 13 years, she would request to visit the accused.169 She said instead that this was around the time [M] stopped visiting, and if she did visit, it was under protest. [JP] said she could not recall whether it was the case that one or more of her daughters would ask to go visit the accused.170 Appearance of the accused 168 [JP] agreed in evidence that the accused is overweight and that she had always been worried about his weight. [JP] agreed that the accused’s weight impacted on his ability to get around sometimes. Her evidence was that she understood this to be particularly the case with his knees and legs.171 [JP] was aware that the accused had a knee replacement. In relation to [JP]’s observations relating to the accused’s mobility issues, she stated the following:172 A Especially when he's hopping out of his vehicle, he would like try and balance himself. Walking up small steps, walking in the house, but it was just little things that we can do, that made it difficult for him at that time, with his weight on top of it as well, that was not helping the situation, to accommodate his leg. 169 [JP] believed that the accused would not be able to run.173 She said he probably would not be able to jump.174 In relation to the accused’s ability to kneel, [JP] said she had seen him attempt to do so, but without the support of furniture around him, she believed he would be in danger of hurting himself.175 Ultimately, [JP] agreed that the accused would have real difficulty in trying to kneel as you could see him in pain. Clothing 170 [JP] was further re-examined on the situation when she was helping the accused remove [LP]’s clothes from his house. She was asked whether she saw anything left over. She gave the following evidence:176 A I didn't actually see any. I believe there was a black dressing gown hanging up. There was a few items, but there wasn't very many items left. I didn't actually go right into the wardrobe, it was already heartbreaking as it was doing that, but I do believe there was a few items left. 169 T190.1. 170 T190.17. 171 T192. 172 T192.23. 173 T192.30. 174 T192.32. 175 T192.35. 176 T198.26. -- 42 of 84 -- [2024] SADC 64 41 Q And one of those left was that black dressing gown you've just described. A Yes. Examination-in-chief of [MP] 171 [MP] is married to [JP]. They have two children together who are the two complainants, namely [O] and [T]. [MP] confirmed that his parents are the accused and [LP]. Attending the accused’s house 172 [MP] gave evidence that after the passing of [LP], his daughters would visit the accused at Parafield Gardens on school holidays. He then gave evidence that [M] stopped attending the accused’s house.177 He said he could not recall when [M] stopped visiting. 173 [MP] said he believed that the reason for this was that [M] simply did not want to go to the house anymore.178 [MP] also gave evidence that [O] and [T] stopped attending the accused’s house. He was unable to give a timeframe as to when this occurred. Holiday to Queensland 174 [MP] agreed in evidence that there was a holiday to Queensland in 2021. Present on that holiday was the accused, himself, and his two twin girls, [O] and [T]. 175 [MP] gave evidence that they used the accused’s car and caravan to travel on this holiday. In relation to the sleeping arrangements, [MP] gave the following evidence:179 Q What was the sleeping arrangement in the caravan. A The twin girls would alternate beds each night. There was basically a double bed at each end and dad had one end, I had the other end and every night the girls would swap back and forth. Like one night I'd have one, the next night I'd have the next one, so on and so on. 176 [MP] was shown Exhibit P2, which depicted the photos of the caravan. He agreed that this was the relevant caravan. [MP] confirmed that there was a toilet in the caravan, and that it was situated in the cubicle of the shower. This is depicted in pictures 13 and 15 of Exhibit P2. When describing the shower, [MP] said the following:180 177 T202.3. 178 T202.4. 179 T202.22. 180 T204.1. -- 43 of 84 -- [2024] SADC 64 42 HIS HONOUR Q So the shower is behind the partition. A Yes. Q That's next to that spray bottle of cleaning product. A Yes, just behind that spray bottle, yes. XN Q And that grey thing, what is that structure. A That's basically just a flexible wall so it can go up and down with the roof. Q Did that have an opening or an entry. A Yes, the doorway is basically on the left-hand side of it. Q Would that fasten or do up. A I can't honestly tell you, I believe there's a door at the front, a door that opens and shut, but the very, very top, I think it's opened, I'm not a hundred-per-cent sure. Q The door that would open and shut, could that be closed. A Yes. Q And how would that be closed. A A little latch, just like a normal door pretty well, I believe. 177 [MP] gave evidence that the holiday lasted for approximately three weeks. [MP] agreed that this was around the April school holidays. [MP] was shown Exhibit P9, which involved a photo booklet prepared by the accused. 178 Exhibit P9 included the photograph of [O] in the toilet. [MP] gave evidence that he had seen the photo before. His evidence was that the accused showed him from his phone straightaway. [MP] recalled that at the time, when he was shown the photograph, he said to the accused that it looked like he had ‘scared the shit out of her’.181 Complaint evidence 179 [MP] gave evidence that sometime after returning from holiday, he became aware of some allegations with respect to the accused and the three girls. He said that this occurred shortly after the holiday. His recollection was that the girls came down the hallway looking quite distressed, and he knew ‘something was up’.182 181 T206.36. 182 T207.12. -- 44 of 84 -- [2024] SADC 64 43 [MP] could not remember what month it was. It was not suggested that this evidence was admissible complaint evidence pursuant to s 34M of the EA. 180 [MP] gave evidence that he remembered sending the accused text messages after becoming aware of the allegations.183 Exhibit P10 was a photobook of six photos of the messages between [MP] and the accused that was tendered which depicted [MP] confronting the accused about the allegations. In relation to the message sent on 12 September 2021, [MP] explained that he sent this immediately following him hearing about the allegations. He confirmed that it was the first time he had spoken to the accused about it. 181 Exhibit P10 sets out a series of text messages between [MP] and the accused after the allegations came to light. The identity of those participating in the communications, nor their content, were not subject to contest. Cross-examination Holiday to Queensland 182 In cross-examination, [MP] described the inside of the caravan as follows:184 Q Am I right that they were beds that - A Fold out. Q - fold out so when the caravan is being driven they are pushed in. A Yes. Q When you stop for the night you pull them out. A Yeah, unfold them, yes. Q Is it fair to say that when you've got four people in the caravan there's not much privacy, is there. A No. Q And you could hear when people might move around in the caravan, couldn't you. A Yeah, well, you could hear if somebody farted, yes. Q You could hear everything basically. A Yes. 183 [MP] was then asked specifically about the toilet in the caravan. He agreed that on top of the toilet enclosure is a ‘canvas sort of top part’.185 183 T207.16. 184 T209.3. 185 T209.20. -- 45 of 84 -- [2024] SADC 64 44 184 A photograph tendered as Exhibit D11 demonstrated that the toilet had a grey enclosure on top. [MP] agreed that on the holiday with the girls, the grey part was always left slightly opened.186 He agreed in evidence that you could therefore see over the top of the toilet. In terms of the photograph of [O] taken by the accused over the top of the toilet, [MP] said that he found the photo funny, and that it was not a photo that caused him concern.187 185 [MP] confirmed again in evidence that this Queensland trip lasted for three weeks. Every night they would sleep in the caravan. The following was put to [MP]:188 Q You never saw your dad touch either of the girls inappropriately on that trip, did you. A No. Q Or at any other time. A No. Q So not before the trip. A No. Q And not after the trip. A No. Q You never heard anything being said by your father in the caravan that caused you any concern to either of the girls. A No. Health issues with the accused 186 [MP] agreed that the accused had ongoing issues with his knees due to ongoing complications with a knee replacement in the late 1990’s.189 [MP] also agreed that the accused was overweight and has back issues. [MP] agreed that the accused is somebody that for many years has had significant issues with mobility.190 [MP] agreed with Ms Barnes that when the twins were around the ages of 5 to about 11, the accused had all the above-mentioned mobility issues.191 [MP] further agreed with Ms Barnes that during the period when the twins were in primary school, the accused could not jump.192 [MP] said that he has never seen the accused jump. [MP] agreed that the accused had difficulties with kneeling. [MP] confirmed that the accused had difficulties sleeping and required a CPAP 186 T209. 187 T210.26. 188 T210-211.37-11. 189 T211. 190 T211.28-31. 191 T211-212. 192 T212.8. -- 46 of 84 -- [2024] SADC 64 45 machine. He said that they both used this machine every night whilst staying in the caravan on holiday.193 Re-examination 187 It was further confirmed, and agreed in re-examination, that the CPAP machine that both the accused and [MP] used on holiday was a machine that made noise, particularly if the filters were not clean. [MP] described the noise as a constant humming sound created by the motor running and, as such, the volume could not be controlled. [MP] said it was not loud enough to prevent you from sleeping. Examination-in-chief of [AR] 188 [AR] was 19 years of age at the time she gave evidence. [AR] went to primary and high school with [M] and became close friends. She was around 12 years old when she first met [M]. Then, in year 8 or 9, they began to date and commenced a romantic relationship. [AR] said this occurred when she was 15 years old. 189 The detail of [AR]’s evidence is considered under the topic of complaint evidence. Record of interview of accused Interview background 190 The interview was conducted by Detective Brevet Sergeant Ryan McGahey, [P, RJ], and Senior Constable Nigel Grapentin at 10:25 am on 21 December 2021.194 191 When the allegations were first put to the accused, he said he thought they were ‘unbelievable’.195 Police explained that the allegations had come to light following a disclosure made by [M] in early November 2021. Relationship with [M] 192 The accused described his relationship with [M] as ‘loving and affectionate’. He outlined that he was a generally affectionate person and would regularly hug all his grandchildren in the same manner; including the older grandchildren.196 The accused said that since the death of his wife on 4 January 2014197, he made efforts to fulfil the grandmother role by performing certain activities such as going shopping with his grandchildren.198 The accused gave examples of how he would display his affection to his grandchildren. He said he would frequently hug them 193 T212.21-25. 194 Record of Interview p 1. 195 Ibid p 7.30; p 7.38. 196 Ibid p 8.36-38. 197 Ibid p 9.2. 198 Ibid p 8.42-47. -- 47 of 84 -- [2024] SADC 64 46 and would sometimes give his grandson a peck on the cheek. He said these actions also extended to kissing his granddaughters on the lips.199 193 He stated that there was no sexual relationship between him and [M].200 [M] visiting the accused’s house 194 Following the passing of his wife, the accused confirmed that [M] would stay at his address. These visits were typically organised by [MP] based on whether [M] was at school or not.201 Occasionally, [M] would call the accused and request he pick her up. Later in the interview, the accused explained that the grandchildren never slept at the house whilst their grandmother was alive.202 [M] in the accused’s bed 195 The accused explained that there were times when his grandchildren would ‘jump in’ his bed whilst he was watching TV. He said in general [M] would come and go from his room. On occasions, [M] would go to his bed at night because something had frightened her.203 If [M] joined him in bed whilst he was sleeping, he said he would put his arm over her chest. He explained that this is because he slept on his right side, leaving his hand hanging by her hip.204 Black dressing gown 196 The accused denied ever forcing [M], or anyone205, to wear his wife’s black dressing gown.206 He explained that the three granddaughters would occasionally perform dance routines and wear the black dressing gown.207 Bathing at the accused’s house 197 The accused confirmed that [M] would bathe at the house when she stayed there and he recalled an occasion where she had opened the door whilst he was on the toilet and began having a shower.208 He confirmed that [M] was not wearing clothes when she had a shower or bath, and estimated that [M] was around 10 to 12 years old at the time.209 He said that the grandchildren would request he draw them a bubble bath and that this was something they had done ‘all their lives’.210 199 Ibid p 9.19-24. 200 Ibid p 11.32. 201 Ibid p 9.42-45. 202 Ibid p 14.44-45. 203 Ibid p 11.36-42. 204 Ibid p 11.46-49. 205 Ibid p 13.11. 206 Ibid p 13.6. 207 Ibid p 13.15; p 13.25. 208 Ibid p 14.10-12. 209 Ibid p 15.39-42. 210 Ibid p 14.31-40. -- 48 of 84 -- [2024] SADC 64 47 Accused humping [M] 198 The accused totally denied climbing on top of [M] whilst touching his exposed penis, humping her, and sticking his tongue in her ear.211 199 It is to be noted that these allegations put to the accused by police did not accord with any allegation alleged against the accused by [M] in her evidence. 200 The accused denied ever giving [M] alcohol. He said [M] would occasionally and independently take his alcohol from the fridge.212 He was aware of an occasion where [M] was feeling unwell and went to lay down. He said that it was only the next morning when he found an empty bottle of Stone’s green ginger wine that he realised that she had been drinking.213 He estimated that this incident happened when she was around 12 years old.214 It was also around this time that he became aware she was stealing five-dollar notes from his dressing table drawer.215 Accused pulling [M]’s pubic hair 201 The final allegation put to the accused was also in relation to [M] drinking alcohol (cider). The accused denied ever sitting on his bed with [M], placing his arm across her chest and pinning her down and using his fingers to penetrate her vagina. He also denied using a phrase like ‘black pussies don’t belong anywhere’ and further denied pulling her pubic hair.216 The accused said that this allegation was the figment of [M]’s imagination, and that he could not remember seeing [M] naked when she had pubic hair.217 Sleeping in the bed with [O] and [T] 202 The accused denied the allegation that he placed [O]’s hand on his penis.218 203 The accused explained that he would wear shortie pyjamas and underwear to bed ‘for protection’ when the grandchildren were in the bed.219 He again repeated that his typical sleeping position involved his hand on his hip, but that sometimes his hand would ‘flop down’.220 The accused explained that because of this, and depending on how [T] and [O] were laying down, he would have his thumb beneath the elastic of their pants.221 When queried, the accused clarified that his hand would be under his granddaughter’s knickers.222 He said that this was a comfortable position for him. He said he had slept in the same bed as [T] and [O] ‘more than 211 Ibid p 17.36. 212 Ibid pp 17.48-18.2. 213 Ibid p 18.47-48. 214 Ibid p 19.4-5. 215 Ibid p 19.8-15. 216 Ibid p 19.17-26. 217 Ibid p 19.38-40. 218 Ibid p 23.46-49. 219 Ibid p 24.17-28. 220 Ibid p 24.42. 221 Ibid p 24.36-37. 222 Ibid p 25.27-28. -- 49 of 84 -- [2024] SADC 64 48 thousands of times.’223 He told police later in the interview that he would often wake up and find the three grandchildren to be in his bed, to the extent that he would roll off the bed due to lack of space.224 204 He said he ‘never, never, never’ touched their vaginas. He said that they had rules around sleeping, and that if ‘grandpa gets too close’ they were to say something.225 He told police this rule was in place because the girls were restless sleepers, and he liked to sleep in the aforementioned specific position.226 He repeated to police that he had put in place very strong rules.227 205 The accused said he never made them touch his penis nor asked them to. He said he had never penetrated either of their vaginas using his finger. He conceded that he would kiss them on the lips and occasionally lick their ears when play fighting in bed.228 He clarified what he meant by this later in the interview; he would wrestle and throw them onto the end of the bed whilst tickling them and putting his tongue in their ear. He believed there may have been occasions that the grandchildren accidentally hit him in the penis with their knees whilst they wrestled, but not their hands.229 206 He denied ever telling [M] that people would not believe her if she told them about the allegations because she was a child, and he was an adult.230 He also denied ever saying he would use the family’s financial situation as blackmail.231 207 The accused conveyed during his interview that he was ‘gobsmacked’ by the allegations.232 He further disputed any sexual contact of any kind.233 He reiterated that his grandchildren were aware of the way he slept and the boundaries he expected.234 208 Towards the end of the interview, the accused repeated once more how he saw himself fulfilling both the grandfather and grandmother role.235 He once again told police officers that he did not think he had done anything wrong.236 223 Ibid p 25.37. 224 Ibid p 29.30-33. 225 Ibid p 26.28-29. 226 Ibid p 26.33-40. 227 Ibid p 26.48. 228 Ibid p 27.7-30. 229 Ibid p 31.4-15. 230 Ibid p 28.12-14. 231 Ibid p 28.18-19. 232 Ibid p 28.37. 233 Ibid p 29.14. 234 Ibid p 29.22. 235 Ibid p 31.31-36. 236 Ibid p 35.42-43. -- 50 of 84 -- [2024] SADC 64 49 Addresses of counsel Prosecution submissions 209 The prosecutor summarised [M]’s evidence first. During the course of those submissions, the prosecutor suggested that [M]’s use of the word ‘jump’ in describing how the accused got onto the bed at the commencement of the bedroom incident could be explained as a colloquialism rather than it being a literal description of the manner of the accused’s movement. The prosecution submitted that inconsistencies as to the positioning of [M] were not significant and that the use of the phrase ‘black pussies don’t belong anywhere’ is a strikingly unique piece of evidence that works against a suggestion of fabrication. 210 The prosecutor submitted that the suggested physical frailties of the accused would not prevent him from being able to move in the way described by [M]. 211 The prosecution also submitted that the fact that [M] ceased visiting the accused after this incident is supportive of her version of events. The prosecution highlighted the apparent reticence of [M] in disclosing the allegations. It was suggested that this is demonstrative of consistency of conduct. 212 The prosecution submitted that the other incidents disclosed by [M], including the accused placing his tongue in the ear of [M], viewing her in the shower, and waking up with her hand down his boxer shorts, should be viewed globally when assessing whether or not there exists a prurient purpose for any such acts. 213 As part of this, the prosecution conceded that [M] did not give any evidence about the accused successfully kissing her on the lips, the result that particular (d) of Count 1 is not made out. 214 Ultimately, the prosecution submitted with respect to [M]’s evidence that, notwithstanding her inability to provide specific details when pressed, that she was an honest witness and that her evidence should be accepted beyond reasonable doubt. 215 The prosecutor then moved on to make submissions in relation to the complainant [O]. The prosecutor acknowledged that the quality of the interviews admitted pursuant to s 13BA was sub-standard. Further, it was properly acknowledged that the majority of the interview content related to allegations of behaviour said to have taken place in Queensland, as opposed to the charged offending. 216 The prosecution submitted that the Court should take into account the uncharged Queensland acts for a propensity purpose in terms of sexual interest, and a tendency to act upon that interest. The uncharged Queensland acts can also be used as contextual evidence to show that even when outside the home, when the opportunity presented, offending still took place. -- 51 of 84 -- [2024] SADC 64 50 217 The prosecutor outlined the uncharged Queensland acts, noting that the offending would take place in the caravan whilst the complainant’s father was present. It also involved the accused talking to the complainant, telling her to take her pants off and saying things like ‘do you want me to stop now?’ and ‘are you scared?’. 218 The prosecutor summarised aspects of [O]’s evidence in terms of charged offending. This included [O]’s evidence that the accused would ‘shove’ one of his hands down her undies and ‘shove’ his other hand down [T]’s undies whilst in bed with them. 219 The prosecutor also summarised the evidence relating to the accused causing the girls to put their leg over his leg, which would then lead to contact with his penis. 220 The prosecution then submitted that in relation to other behaviour, such as smacking on the bottom, and occasions of kissing, that the Court should be satisfied that there is no innocent explanation for this. 221 The prosecution submitted that little or no weight should be placed on the evidence of [O] where she accepted that she had never seen the accused inappropriately touch [T]. 222 The topic of the toilet photograph, Exhibit D6, was the subject of submissions. The prosecutor properly conceded that the evidence of [O] on this particular topic was an overstatement as to the photograph being taken for a prurient purpose and suggested that the photograph and circumstances surrounding the photograph were better categorised as the accused not respecting the privacy of [O]. This was an appropriate concession. 223 The prosecutor then moved on to the evidence of the third complainant, [T]. The prosecutor correctly identified that there were similarities between the accounts of [O] and [T]. One of these similarities was the focus of both complainants upon the uncharged events of the Queensland holiday. [T] described the accused touching or rubbing her vagina whilst on that trip. The prosecutor referenced some differences in the narrative of events between [O] and [T], for instance, [T] describes the uncharged acts as including the accused causing her to touch his genitals. 224 The prosecutor moved on to describe the evidence of [T] with reference to the charged offending said to have occurred at the accused’s home address, specifically the accused putting his hand down her pants whilst in the bedroom, touching her buttocks and vagina on multiple occasions, almost every time they, ([T] and [O]), shared a bed with the accused. 225 The prosecutor acknowledged that only [O] gave evidence about the accused making attempts to kiss them, or put them on his lap, and that [T] did not describe -- 52 of 84 -- [2024] SADC 64 51 any such acts occurring, although these allegations were suggested to be occurring against both complainants at the same time. 226 The prosecutor submitted that the evidence of the complaint disclosures made by each of the twins to each other was not in great detail, and that the discussion with their mother, [JP] constituted an elaboration of those initial complaints. The prosecutor conceded that opportunity existed for the complainants to have discussed their shared experiences of the allegations with each other and, on the Crown case, as much is obvious between [O] and [T] in particular. The prosecutor reminded the Court that each complainant denied any form of collusion. The prosecutor submitted that whilst the Crown relied on similarity of account, the Crown also relied on differences, such to exclude the possibility of collusion and concoction. 227 Ms Andersen moved on to summarise the evidence of the mother of the complainants, [JP], submitting that most of her evidence was not in contention. It was conceded by the Crown that [JP] gave evidence that the accused had difficulty with kneeling down, and that there is no denial that the accused had a bad knee. 228 The focus then shifted to the evidence of [MP] and the text messages between the witness [MP], and the accused. The prosecution submitted that some of the messages are capable of amounting to partial admissions and that the messages demonstrate knowledge on the part of the accused of something improper occurring in a bed. 229 It was accepted by the Crown that the tenor of the messages did not amount to a clear admission of the charged offending, but nonetheless did support aspects of the prosecution case. 230 The prosecutor concluded the prosecution address by summarising the record of interview of the accused, highlighting some of the accused’s apparent acceptance of various aspects of the Crown case, including the issue of the black dressing gown, an acknowledgement of kissing on the lips, payment of money, sleeping arrangements, and how the accused would ‘normally sleep’. Ultimately, it was submitted by the prosecution that the number of questionable incidents could not be explained away by innocent contact. 231 Finally, the prosecutor stated that the prosecution case relies upon an acceptance of each of the complainants as credible and reliable witnesses, that the Court should accept each of the complainants beyond reasonable doubt as being credible and reliable, and that the accused used his granddaughters to fill the void left by his deceased wife. Defence submissions 232 Defence counsel commenced with a review of the particulars of each count and whether there was evidence capable of proving each particular. -- 53 of 84 -- [2024] SADC 64 52 233 In relation to count 1, it was submitted that particular (a) was not made out on the evidence of [M]. Defence counsel submitted that the evidence fell short of being able to prove that the accused did anything to cause [M]’s hand to be resting on his genitals. It was submitted that there was no evidence capable of proving particular (d), and in relation to particular (c), that there is only evidence of there being any contact between the accused’s tongue and the complainant [M]’s ear on one occasion. 234 It was submitted that what occurred in support of particular (c) was not for a prurient purpose and that an alternative hypothesis such as humour, perhaps albeit misplaced, could not be excluded. 235 The ultimate submission advanced by defence counsel in relation to count 1 is that the prosecution had not proved that two or more unlawful sexual acts occurred during the charged period and that the charge is not made out. 236 Defence submissions then moved to count 3, relating to the complainant [O]. it was submitted that particular (b) is not made out as a consequence of the totality of the evidence indicating that there was no sexual connotation or prurient purpose attached to any kissing. It was submitted that [O] herself gave evidence that it was common for her to be kissed on the lips by the accused in front of her parents. Defence counsel submitted that because [O] gave this evidence, it highlights that such behaviour was a normal part of their grandfather/grandchild relationship. 237 The defence address then moved to count 4, relating to the complainant [T]. The Court was referred to particular (b) and a similar submission was made about the lack of prurient intention attaching to the accused kissing his granddaughter. Defence emphasised that on the account of [T], she was never kissed on the lips by the accused at all. 238 Criticism was levelled in relation to particular (d), the supporting evidence of which arises from [T]’s s 13BA interview where it was submitted, upon careful consideration of the relevant passage at pages 24 and 25 of the interview, that there is no evidence that the accused caused [T] to touch his penis. 239 Defence counsel then made submissions regarding what were suggested to be prior inconsistent statements arising on the prosecution case, firstly on the part of the complainant [M]. It was submitted that there were a number of inconsistent statements about the positioning and mechanics relevant to particular (b) of count 1 and the alternative count 2; the incident alleged to have occurred in the bedroom between [M] and the accused. It was suggested that [M] never used the word ‘jumped’ in her police statements (which was agreed by [M] in her evidence) and that on careful consideration [M] had given a different description between the contents of her police statements and in her evidence as to the detail of this incident before the Court. 240 On the topic of the black robe and [M], it was submitted that the evidence does not rise to the level where the Court could be satisfied that there was a form -- 54 of 84 -- [2024] SADC 64 53 of sexual interest on the part of the accused in encouraging [M] to wear the robe and dance. 241 Defence counsel submitted that the evidence of [M] revealed an important inconsistency as to the location of where count 2 occurred. It was submitted that an inconsistency existed because [M] told Ms Rigney that the incident occurred in the spare room as opposed to [M]’s evidence that it happened in her grandmother’s bedroom. Ultimately, it was submitted that the Court should be cautious about accepting the evidence of the complainant given there is a clear inconsistency of account, and lack of detail in the complaint evidence as it relates to [M]. 242 The defence address then moved to the physical impairment of the accused and, on the defence case, the inability of the accused to physically perform important aspects the acts described by [M] giving rise to count 2 and particular (b) of count 1. 243 Ultimately, defence submitted that, in relation to [M], the multiplicity of inconsistencies, failures to come up to proof, an inability to conclude beyond reasonable doubt that impugned behaviour alleged was attended with the requisite prurient purpose and further, that the physical limitations of the accused meant the charged allegations as they related to [M] could not be proved beyond reasonable doubt. 244 Defence counsel then submitted that the evidence of [O] and [T] was of such a confusing nature that the Court could not be certain as to what charged and uncharged acts were to each of the particular complainants. It was submitted that both [O] and [T] repeatedly used plural descriptors of what occurred during the s 13BA interviews, such as ‘we’, ‘us’ or ‘our’. Put simply, defence submitted that individual acts of abuse cannot be identified because of the generalities involved in both interviews. There were examples in both [O] and [T]’s interviews where each complainant was recounting something that they had been told by the other complainant. 245 It was submitted that the interviews highlighted repeated discussions between the twins, which gives rise to the very real spectre of collusion or contamination. It was submitted that an analysis of the interviews in relation to each of the twins leads one to conclude that there is a lack of clarity as to what allegations are said to have occurred in South Australia and what is said to have occurred during the family trip to Queensland. 246 Defence counsel also repeated the evidence of [O] under cross-examination where [O] stated that she did not see her grandfather touch [T] inappropriately, which is in stark contrast to the contents of her interview. It was submitted that this was a significant inconsistency, and was not something to be easily forgiven. 247 It was submitted on behalf of the accused that his record of interview provided an explanation that is consistent with innocence, and provided a -- 55 of 84 -- [2024] SADC 64 54 reasonable explanation that any physical contact made between the accused and the complainants was simply the way he interacted with his grandchildren, and that there was nothing nefarious or prurient about his admitted actions. 248 Defence submitted that the SMS communications between the accused and [MP] did not rise to the level of any form of admission and the Court needs to treat that evidence with caution. 249 It was also submitted that the close proximity in which the family slept whilst on their Queensland holiday was such that it was inherently improbable that the allegations could have occurred, in particular, the proximity to the complainants’ father within the confines of the caravan. Complaint Complaint evidence – [M] 250 [M] was asked whether she told anyone about the alleged offending. Her evidence was that she did not openly discuss anything with anyone until she was 13 years old.237 251 [M] said that the reason for this was that the accused told her nobody would believe her because she was a child and he was an adult.238 The accused was also helping her parents financially at that time and the accused said he would stop helping them. [M] gave evidence that the accused assisted by giving them money, which he complained about a lot. [M], at the age of 13, told her then partner, [AR], that she felt uncomfortable being in the accused’s house.239 [M] did not tell her the precise details of the assaults, but [AR] encouraged [M] to stop visiting and to tell someone about it. [M] does not remember what she told [AR] about why she felt uncomfortable. Complaint evidence – [O] 252 When [T] disclosed to [O] that she was touched, Senior Constable Cooper asked [O] what she remembered she told her. [O] said [T] said that the accused was touching her and asking all these inappropriate questions. She also disclosed that the accused had been shoving his hands down her pants.240 This disclosure is unclear as to whether it is referable to the charged offending. Accordingly, it is inadmissible pursuant to s 34M of the EA. 253 When [O] had arrived home from holiday, a few days later they had a cousin over whose name was [S]. [O] said ‘we’ told her. It is unclear who ‘we’ is upon reading the transcript. In any event, her cousin then encouraged [O] that she should 237 T60.11. 238 T60.14. 239 T61.4. 240 MFI P5A p 17. -- 56 of 84 -- [2024] SADC 64 55 tell her mother and that she would sit with them. [O] then told her mother and said she did not believe it at first because ‘it been a few years’.241 254 Thereafter, [O] stated that her mother told her to block the accused. [O] stated the accused tried contacting [T]. They had told their father about the accused contacting her and he said to not worry about it. [O] says that her mother had called her elder sister, [M]. Whilst this call occurred, [O] was in the same room and overheard the conversation. [M] disclosed that the accused had been touching her too. [O] said she was aware that her father had messaged the accused because he had expressed his intention to do so to her.242 Conversations/Complaint with sisters 255 Under cross-examination, the relationship of [O] and [T] was addressed. [O] agreed with Ms Barnes that she and [T] were very close to one another.243 She also agreed that from about 5 years old, they spent a lot of time together. Throughout primary school, they were always together. They would go together to visit the accused. Ms Barnes then embarked upon the topic of [T] and [O] talking to each other about the things that happened at the accused’s house. In relation to the frequency in which [O] and [T] discussed what happened at the accused’s house, [O] gave the following evidence:244 Q Now, that topic about what you say happened in grandpa's room, that's something that you and [T] have talked about, isn't it. A Yeah. Q You have talked about that lots of times, haven't you. A Yeah. Q Talked about that recently, have you. A No. 256 Further in cross-examination, [O] disagreed that when she was in year 6 it was put to [O], her and [T] talked about what happened at the accused’s house.245 [O] agrees that she had talked about it when she was younger than that. When asked about the particular details she disclosed to [T], the following was said:246 Q When you talked to [T] about these things, did you tell her the details about what you say happened to you in grandpa's room. 241 Ibid p 27. 242 Ibid at p 28. 243 T136.12. 244 T137.2. 245 T137.22. 246 T137.29. -- 57 of 84 -- [2024] SADC 64 56 A No. Q What did you talk about. A I just said that he just put his hands down my pants and that was it. Q You told her that your grandpa had put his hands down your pants, is that what you said. A Yeah. 257 Then, Ms Barnes asked whether [O] had talked to [M] about this. [O] gave evidence that she could not remember.247 [O] confirmed that [T] did say something back to her about what happened at the accused’s house. She was then asked whether [T] had given her some details about that. Her evidence was that she could not remember.248 However, [O] then conceded that [T] was talking to her about what happened at the accused’s house, and that the topic concerned inappropriate things that happened. [O] understood that ‘inappropriate things’ meant touching by the accused that was not appropriate. 258 [O] agreed with Ms Barnes that she and [T] talked about the topic of inappropriate touching that might have occurred on the Queensland holiday.249 [O] disagreed in evidence that this topic was something that was talked about on many occasions. She agreed however, that they talked about the incident during the ‘whole day’.250 [O] disagreed with the suggestion that she and [T] discussed the inappropriate touching after the holiday. She said that they agreed they should tell their parents. Complaint evidence – [T] 259 In the police interview, the topic of complaint was introduced. [T] says that she told [O], and [O] said that he was doing the same. She believed she told [O] the second night.251 When [O] and [T] had showers together, this is when [T] would speak to her sister about it. The showers were located in the toilet block as they were at a caravan park. [T] said her and [O] were too scared to tell their parents. She said that the accused continued to act inappropriately. 260 When returning home from holiday, her cousin [S], who was 11 years of age, had come over to their house. [T] said that [O] had told her what had happened.252 [S] then told them to tell her mother, which they did. However, [T] said she did not hear [O] tell her cousin. She said she was aware that [O] had told [S], because [S] told [T] about the conversation. [T] did not know where she was when [O] made the complaint to her cousin. They then had a conversation with their mother 247 T138.2. 248 T138.7. 249 T138.23. 250 T138.33-35. 251 Ibid at p 9. 252 Ibid at p 28. -- 58 of 84 -- [2024] SADC 64 57 the next day.253 She said her cousin was there and said, ‘yeah it was true’.254 [O] began to cry. [T] said that her mother said to tell their father. She said her father queried why they were crying and she then disclosed to him what had been occurring and gave them a big hug. Her father then said they would have a chat about it the next day when their cousin was to go home. 261 [T] agreed in evidence that [O] and her are very close sisters.255 [T] agreed that she was able to share everything with [O]. [T] then gave evidence that she was not particularly close to her sister, [M].256 262 [T] gave evidence in cross-examination that prior to speaking with the police officer in her record of interview, she had spoken about the things the accused did to her. [T] rejected the suggestion that she had frequently discussed these matters with [O], and said that their discussions about the alleged offending were infrequent. [T] disagreed in evidence that she had spoken to [O] about these things lots of times and gave evidence that it was not a lot.257 The following passage on this topic is seen below:258 Q Well, just thinking back to before you spoke to the police officer, you spoke to [O] about things that had happened at Grandpa the accused's house, hadn't you. A Yeah. Q And you'd spoken to [O] about things happening at grandpa's house on lots of times, is that right. A Not a lot. Q Did you also talk to [O] about the holiday and what you say Grandpa the accused did on the holiday, didn't you. A Yeah. Q And that topic, so about what Grandpa The accused did on the holiday, is something you and [O] talked about many times, isn't it. A Not a lot. 263 [T] gave evidence that she had not spoken to [M] about what happened at the accused’s house. [T] also said that she had told her mother what had happened at the accused’s house. [T] agreed that [O] was present when she made disclosure to her mother, and that both of them made disclosures at this time.259 253 Ibid. 254 Ibid at p 29. 255 T163.31. 256 T164.23. 257 T165.7. 258 T165.6. 259 T165.29. -- 59 of 84 -- [2024] SADC 64 58 Complaint evidence – [JP] 264 During evidence-in-chief, [JP] gave evidence that she had walked in on a conversation. [JP] said the following in evidence:260 A As I'm looking down the hallway and I got close to my children’s bedroom, I heard my niece say - she wasn't very quiet, I heard her say 'You need to tell aunty' and I'm thinking 'what's going on here?'. Had no idea what was going to fall out of my twins' mouth straight after that. 265 [JP] said her niece’s name was [S].261 [JP] gave evidence that this conversation would have been between 7 and 8 o’clock in September 2021.262 266 Upon [JP] hearing [S] say ‘you have to tell aunty’, [JP] provided a detailed explanation of the events that occurred after, which is seen in the below passage from her evidence:263 A I walked up to their bedroom door and I looked at all three of them. They didn't realise I was actually standing at the door, they had no idea I was standing at the door and I said 'Tell me what?'. Then they actually got a fright when they'd seen me. They paused for two, three seconds maybe, then they just jumped up, started crying and they came running to me and hugged me, or - yeah, to [T] and [O], and I'm like 'Tell me what? What are youse going to tell me?'. I cannot remember who actually said, but the words that were said to me at that moment was 'Mum, grandpa's playing with our private parts'. They're not words that I never ever wanted to hear. I thought they don't like saying those words; and I just grabbed my girls and hugged them, while still trying to process what was said to me. No parent or mother wants to hear those words and I hugged them for quite a while. I can't remember exactly how long and then I told them that they needed to go and tell their father, who was in the lounge at that time. As [T] and [O] ran down the hallway to their dad, I just grabbed my niece, gave her a hug. If it wasn't for her letting the girls know to tell me, I wouldn't have known, me and [MP] would not have known. 267 [JP] confirmed in evidence that it was only [O], [T] and [S] in the room when this conversation took place.264 Her evidence was that this occurred in [T] and [O]’s bedroom. [JP] said that she could not remember which twin made the particular complaint about their privates being touched.265 Her evidence was they were both crying at the time of the complaint. [JP] said that she had a subsequent conversation with [MP] about what the twins had told her. 268 [JP] gave further evidence that after the initial conversation, she had another conversation probably half an hour or 20 minutes later.266 [JP] gave evidence that in this second conversation, she asked the twins a few questions. Her evidence was that she had sat them on her bed. [JP] said that during this conversation, she asked 260 T176.22. 261 T176.29. 262 T176-177. 263 T177.12. 264 T178.3. 265 T178. 266 T179.21. -- 60 of 84 -- [2024] SADC 64 59 the twins further questions. She provided the following examples of the questions she asked in her evidence:267 A One of the questions was 'What was grandpa doing to youse?', and I can't remember the other question but it was along the lines of 'How many times?' 269 [JP] gave evidence that the twins answered in small ticks and small language.268 [JP] was asked to relay precisely what the twins had said during this conversation. [JP] asked the twins what had happened, to which they replied ‘fingers’. She said that both twins then put up a hand each. [JP] gave evidence that the twins were demonstrating with their first and second finger extended.269 270 [JP] said that the twins made this gesture, they did not look at each other. [JP] said [O] performed a rotation movement, and explained that [O] extended the first two fingers on each of her hands, and made a circular motion. [JP] gave the following evidence:270 Q To the best of your ability, when you asked them 'How was grandpa touching your private parts?', can you remember what they said after you asked that question. A They didn't actually say anything, that's when they demonstrated with their hands. I do remember both of them were in sync, both hands came up at the same time, they were focused on seeing me, watching me, when I seen both their hands come up, and showed me fingers, and then [O]'s one was just going circular motion (DEMONSTRATES) as they were still focused on me and from that point I just, yeah, I kind of lost it a little bit. 271 [JP] believed she did ask them a couple more questions, but she could not remember what questions specifically. She remembered that she asked the twins ‘how many times’ at the same point she asked about the fingers.271 [JP] said she could not recall a response, or did not get one from the twins in relation to her question as to the frequency of the acts.272 [JP] also said that when the twins disclosed to her that they were touched, her evidence was she asked the twins ‘where’ and they responded ‘private parts’.273 [JP] said she asked the twins ‘when’ and they responded ‘grandpa’s house’.274 [JP] said [O] told her she was either 4, 5 or 6 when this occurred.275 272 [JP] gave evidence that the conversation came to an end when she went to [M]’s bedroom and knocked on her door. She said she then had a conversation 267 T180.1. 268 T180.26. 269 T181. 270 T182.14. 271 T182.36. 272 T183.15. 273 T183.16-19. 274 T183.32. 275 T183.35. -- 61 of 84 -- [2024] SADC 64 60 with [M]. As a result of these conversations, she subsequently arranged for a police report to be made. Inconsistencies in complaint evidence 273 Ms Barnes revisited the topic of complaint evidence with [JP], and the conversation that initially took place with the twins. Various inconsistencies in relation to the complaint were raised by Ms Barnes which are outlined below. [JP] agreed in evidence that all her police statements were correct, and that she had the opportunity to read them. 1. Age of complainants 274 [JP] accepted that she said in her police statement that it may have been [O] who told her that the alleged offending occurred when she was 6 or 7. [JP] said she thought this sounded more accurate than what she had told the Court in evidence; namely that the twins were 4, 5 or 6..276 [JP] did not provide a reason for the inconsistency between these answers. 2. Location of alleged offending 275 A further inconsistency in [JP]’s evidence was that the girls had told her that it had happened at the accused’s house, an account that was absent completely from her statement. She provided the following explanation for this:277 Q Do you remember a moment ago as well, when Ms Andersen was asking you about this topic, you said that the girls had told you that it had happened at grandpa's house. A That's also correct. Q You tell me if you need to look in your statement, but I want to suggest to you that nowhere in your statement have you said that they told you that it was at grandpa's house. Does that sound right to you. A That sounds right. Q And in fact in your statement - A Well where else would they go to if they come down to Adelaide? 276 [JP] accepted that in her statement she said that the first time she spoke to the twins, they had disclosed that the touching occurred on holiday. [JP] agreed in evidence that nowhere in her statement did she say that the twins told her that anything happened at the accused’s house. [JP] then gave the following evidence in response to the suggestion put by Ms Barnes:278 A Yes, probably did say that, but I - yeah, I don't know. 276 T195.1-9. 277 T195.16. 278 T196.1. -- 62 of 84 -- [2024] SADC 64 61 Q Is that what was right, is that what's right, that the twins told you only about something happening on the holiday. A I - they did tell me something that happened on the holiday, but I'd actually thought it was and I still believe at grandpa's house. I would have said 'the holiday' only because the conversation escalated into the holiday. Complaint evidence – [AR] 277 I note that the prosecution led three occasions where [M] had disclosed incidents to [AR]. Each incident is outlined below. 1. First conversation 278 [AR] said that when she was close with [M], she ‘occasionally’ spoke to her about the accused.279 When asked what was the first thing that she was able to recall [M] saying about the accused, [AR] said the following:280 A I think she was meant to go over to his house one time in Adelaide and she said something like, she would go there when she was younger and she would go there by herself and then she told me that she didn't want to go there again because she felt scared when she went there. 279 [AR] explained that [M] did not disclose the reason as to why she felt scared, despite her asking as much.281 [AR] said that [M] did not respond, and went quiet, she said that the accused is ‘weird’.282 [AR] said that there were other occasions that she spoke with [M] about the accused. 280 Ms Andersen revisited this account given by [AR]. [AR] said that she was 15 or 16 years of age when this conversation occurred.283 [AR] gave evidence describing the demeanour of [M]. Her evidence was that throughout the entirety of all their conversations, she thought that [M] seemed really uncomfortable. She was very quiet and always had her head down. She did not want to talk about it. She would also change the topic very quickly. 2. Movie scene 281 [AR] gave evidence about another conversation where [M] told her she was watching a movie and she did not like the scene that came on. [AR] gave the following evidence:284 A Yeah, I remember she said, she was watching a movie and she said that she didn't like the scene that came on, it was - I can't even remember what happened, but I guess someone was being assaulted and she said 'I don't like what's happening' and I said 'Why?' and she said 'It reminds me of what happened when I went to Rex's house' and I was like 'Is that what you mean?' and she was like 'Yeah, I think so' and 279 T217.27. 280 T217.30. 281 T217.36. 282 T217.38. 283 T220.29. 284 T218.10. -- 63 of 84 -- [2024] SADC 64 62 I said 'Did he touch you, what do you mean? Has he hurt you?' and yeah, she went quiet and she said that he would, you know, touch her legs and her bum and just, I don't know, touch her in places that yeah, shouldn't, I guess, but, yeah, she would tell me briefly and over periods of times. There was one time where she told me that he - she was trying to sleep and he came into the room and he tried to like lay next to her, or on top of her and I don't know, she was pretending to sleep and yeah, he was like touching the inside of her thighs and rubbing her belly and I don't know, touching her vagina, I guess. I asked her like I said 'Do you think he raped you?' and she said she didn't know, I guess she was young and didn't know what that meant, but yeah. 282 [AR] said she could not remember the exact scene from the movie she and [M] were watching, but believed it was likely an assault scene.285 [AR] described the movie scene in her evidence as follows:286 A Someone was like - I think they were being held down and yeah, someone was sort of - the girl that was being held down was crying and you know, just not really talking, but saying 'Stop', but not yelling or anything, but yeah, the person on top was just I don't know, being - sorry, yeah, what a rapist does, I guess, like tries to rape them. 283 [AR] said that this conversation occurred a few weeks or a month after the first conversation.287 3. Unknown incident 284 [AR] gave evidence where she recalled a further time where [M] told her of a time when she was trying to sleep, and the accused came into the room and he tried to lay next to her, or on top of her. [M] was pretending to sleep, and the accused was touching the inside of her thighs and rubbing her belly and touching her vagina.288 [AR] said after [M] told her about this incident, she asked [M] if she believed the accused raped her, to which [M] replied she was unsure.289 [AR] was later asked to clarify the exact words [M] had used. [AR] explained that [M] was brief, and that all she told her was that the accused had touched her vagina.290 Details of complaint 285 [AR] said that [M] did tell her where the alleged offending had occurred. [AR] said that:291 A Yep. She also did say like it would happen in the kitchen, or in the lounge room, living room. Like she would just be standing there and he would walk past and sort of grab her on the bum. 285 T219.16. 286 T219.28. 287 T220.33. 288 T218. 289 T218.10. 290 T219.8. 291 T222.23. -- 64 of 84 -- [2024] SADC 64 63 286 The admissibility of complaint evidence is governed by s 34M of the EA which states: 34M—Evidence relating to complaint in sexual cases (1) This section abolishes the common law relating to recent complaint in sexual cases. Note— See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427 (2) In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct. (3) Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence. Examples— Evidence may be given by any person about— • when the complaint was made and to whom; • the content of the complaint; • how the complaint was solicited; • why the complaint was made to a particular person at a particular time; • why the alleged victim did not make the complaint at an earlier time. (4) If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that— (a) it is admitted— (i) to inform the jury as to how the allegation first came to light; and (ii) as evidence of the degree of consistency of conduct of the alleged victim; and (b) it is not admitted as evidence of the truth of what was alleged; and (c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person, but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case. (5) It is not necessary that a particular form of words be used in giving the direction under subsection (4). -- 65 of 84 -- [2024] SADC 64 64 (6) In this section— complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise); initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time). 287 In R v England292 Stanley J (with Kourakis CJ and Nicholson J agreeing293) stated: Section 34M(3) provides that evidence relating to the making of an initial complaint of an alleged sexual offence is admissible on a charge of that offence. An ‘initial complaint’ is defined in s 34M(6) to include information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time). The complaint to the mother was an ‘elaboration’ of the first complaint to K. The mother was told additional details. In particular, the victim alleged that she had been touched between the legs and referred to rubbing in that area. The fact that the victim did not remember as much detail of what she had said to her mother did not make the complaint inadmissible. A complainant does not even have to recall making the complaint. I do not accept the appellant’s submission that the evidence of the complaint to the mother was not admissible because it was not capable of proving consistency of conduct of the victim because there were inconsistencies in the evidence of the contents of the complaint made to the mother. This Court has previously held that even though s 34M(4) identifies consistency of conduct of the alleged victim as one of the uses of complaint evidence, that is to be understood as including evidence which, in some aspects, reveals inconsistency of conduct because it is for the jury to evaluate the significance (if any) of the evidence given its degree of consistency or inconsistency. [my emphasis] [footnotes omitted] 288 In the circumstances of this matter, I propose to deal with evidence of complaint as it relates to each complainant in turn. Discussion – complaint evidence Complainant [M] 289 The evidence given by [M] on this topic lacks the necessary detail to be admissible pursuant to s 34M of the EA. In summary, [M] does not remember what she told [AR] about why she felt uncomfortable being in the accused’s house. Witness [AR] 290 Only part of [M]’s disclosures to [AR] are admissible pursuant to s 34M. The first disclosure regarding [M] being ‘scared’ when she went to the accused’s house is inadmissible. The second conversation during which [AR] reported that [M] disclosed, inter alia, that the accused would touch her in places that [he] shouldn’t and [M]’s description of an occasion where she was pretending to be 292 (2013) 116 SASR 589. 293 Nicholson J identified disparity in other decisions of the Court as to the treatment of inconsistency at [48]. -- 66 of 84 -- [2024] SADC 64 65 asleep and was touched on the vagina is, in my view, admissible pursuant to s 34M of the EA. 291 The disclosures are referable to the charged offending in that part of the charged offending in counts 1 and 2 involve an allegation of the accused touching the vagina of [M]. 292 The third or further conversation described by [AR] in her evidence is merely a repetition of the earlier complaint and discloses no further detail. This is not an elaboration of the initial complaint and is therefore inadmissible.294 293 The admissible evidence is demonstrative of how the allegation first came to light.295 In assessing whether the evidence is capable of demonstrating consistency of conduct, it is to be noted that [AR]’s evidence reveals a disclosure from [M] that the accused touched her vagina. This disclosure demonstrates a degree of consistency of conduct. 294 However, aspects of the detail of the complaint are inconsistent with [M]’s evidence. This includes [M] telling [AR] that she was pretending to be asleep when the accused was touching her vagina. Given that [M] cannot remember the detail of what she disclosed to [AR], I accept the evidence of [AR] on this topic. Whilst there was a lack of specificity in [AR]’s evidence, the disclosure of a touching on the vagina whilst [M] was pretending to be asleep was clear. I do not regard the inconsistency in this evidence, namely [M] pretending to be asleep during the alleged sexual assault, as peripheral or of little consequence. This is a difference between the version given by [M], in that she was not pretending to be asleep at the time of the touching of her vagina, and the accepted evidence of [AR]. This is a material inconsistency to be considered. Complainant [O] 295 [O]’s complaint to [T] about the accused putting his hands down her pants is admissible. 296 The lack of clarity arises, in part, as to whether the disclosure of uncharged acts said to have occurred interstate can be disentangled from the disclosure of acts referable to the charged offending. For evidence of complaint to be admissible pursuant to s 34M of the EA, it must be referable to the charged offending.296 Ultimately, I am satisfied that the disclosure of [O] to [T] regarding the accused putting his hands down her pants is referable to charged conduct, and is therefore admissible. 294 R v England (2013) 116 SASR 589 [590]; R v Maiolo (No 3) [2014] SASCFC 89 [81]-[83]. 295 R v Jones [2018] SASCFC 80 [164]. 296 R v S, DD (2010) 109 SASR 46, 49-50. -- 67 of 84 -- [2024] SADC 64 66 Complainant [T] 297 Admissible initial complaint evidence is somewhat difficult to ascertain in relation to [T]. [T]’s version was that [T] and [O] told each other ‘what he was doing’. I infer that this is in relation to what was allegedly occurring whilst interstate on a family holiday having regard to the relevant contents of the interview and that the disclosure was made whilst on holiday. 298 Under cross-examination, [T] agreed that she had spoken with [O] before she spoke to the police officer about ‘things that had happened at grandpa’s [house]’. I take this to be that [T] spoke with [O] about being inappropriately touched at the accused’s house. This is also admissible as initial complaint. [T] then agreed that she had told her mother what had happened at the accused’s house. [O] and [T]’s conversation with [JP] 299 The disclosure that ‘grandpa’s playing with our private parts’ requires consideration. Both [O] and [T] were present, however [JP] cannot remember who it was that spoke these words. This does not amount to an elaboration as this is what [O] and [T] had previously complained to one another about initially. This repetition is not admissible under s 34M of the EA as it does not provide further information.297 300 Approximately 20 minutes later, during the subsequent conversation with [JP] and the twins, they disclosed that the accused had used his fingers to touch them, demonstrating with the first two fingers of a hand moving in a circular fashion. Under questioning from [JP], [O] and [T] stated that it happened at grandpa’s house, and [O] stated it happened when she was 4, 5, 6 years of age. 301 The difficulty that arises in this case, as to the admissibility of any suggested complaints made by [O] and [T] to [JP], is whether any disclosures amount to an elaboration of the initial complaints [O] and [T] made to each other. On the final state of the evidence, [O] and [T] told each other what they respectively experienced at grandpa’s house. However, there is a paucity of detail as to what these mutual initial complaints encompass. I find it to be inherently unlikely that [O] and [T] demonstrated to each other, as they did to their mother, that the accused would touch them with the first two fingers on a hand in a circular motion. I am therefore satisfied that this information provided by [O] and [T] to [JP] amounts to an elaboration of each initial complaint. Similarly, I find [O]’s disclosure of her age when this occurred, namely 4, 5, 6 to be an elaboration of her initial complaint to [T]. 302 The above identified pieces of admissible evidence will be admitted pursuant to s 34M of the EA. 303 The evidence of [O] and [T] complaining to each other is admissible to demonstrate how the allegations first came to light. Both the initial complaints and 297 R v Maiolo (No 3) [2014] SASCFC 89. -- 68 of 84 -- [2024] SADC 64 67 the elaboration of the complaints to their mother [JP] demonstrates consistency of conduct. 304 The evidence of complaint is not admitted as evidence of the truth of what was alleged. 305 The Court also takes into account that there may be varied reasons why [M], [O] and [T] made a complaint at a particular time or to a particular person. Discreditable conduct 306 The prosecution submitted that a number of items of discreditable conduct are admissible for a permissible purpose. 307 The admissibility of discreditable conduct is governed by s 34P of the EA, which states: 34P—Evidence of discreditable conduct (1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)— (a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and (b) is inadmissible for that purpose (impermissible use); and (c) subject to subsection (2), is inadmissible for any other purpose. (2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if— (a) the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and (b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial. (3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose. (4) Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court. (5) The court may, if it thinks fit, dispense with the requirement in subsection (4). -- 69 of 84 -- [2024] SADC 64 68 308 The various categories of discreditable conduct evidence said to be relied upon by the prosecution are as follows: 1. Cross-admissibility as to the evidence of the charged allegations; 2. Uncharged acts within South Australia; 3. Uncharged acts with [O] and [T] outside of South Australia, namely Queensland; and 4. Uncharged verbal sexualised comments.298 Cross-admissibility 309 Evidence may be cross-admissible on the basis that the accounts of each complainant have such a degree of similarity that the hypothesis that they have independently fabricated, imagined, or are mistaken about the offending, for reasons peculiar to each complainant, is so improbable that the probative value of the evidence outweighs its prejudicial effect.299 310 If the probative value of the evidence outweighs any prejudicial effect it may have on the accused, the evidence can be admitted if the permissible use of the evidence is, and can be kept, sufficiently separate and distinct from the impermissible use, so as to remove any appreciable risk of the evidence being used for that purpose.300 311 In R v C, CA,301 Kourakis CJ described similarity of account reasoning as the clearest basis for the cross-admissibility of evidence of offending against each complainant: The clearest basis for the cross-admissibility of the evidence of offending against each complainant on the trial of the offending against the others is that the testimonial accounts of the complainants demonstrate the improbability that the conduct of which they complained was concocted or imagined by each of them independently of the others. I will refer to that basis for admissibility as the ‘similarity of account’ basis and to evidence admitted for that purpose as ‘similarity of account evidence’. The strong probative force of similarity of account evidence was explained in Hoch v The Queen (Hoch). It arises out of the improbability of persons independently imagining or concocting stories with a high degree of similarity of detail. Section 34S of the Evidence Act has removed the common law condition for the admissibility of similarity of account evidence established in Hoch. It is no longer a necessary condition of admission that the trial Judge be satisfied that there is no possibility of collusion between the complainants. That is now a factual question for the jury. The strong probative force of similarity of account evidence in the circumstances of this case can be shortly explained. If there were separate trials of the offences against each of the complainants, the primary issue would become the reliability and credibility of the 298 Prosecution Written Submissions on Discreditable Conduct. 299 R v C, CA [2013] SASCFC 137 [61]. 300 Section 34P(3) of the EA. 301 [2013] SASCFC 137 [57]-[58]. -- 70 of 84 -- [2024] SADC 64 69 individual complainant concerned. Having sought separate trials, it is very unlikely that the appellant would raise collusion with another complainant who had made similar allegations as a reason for doubting the complainant in the charges before the court. Instead, on a trial of the charges relating to a single complainant alone, the defence is likely to advance matters peculiar to that complainant for doubting his reliability or credibility. Those matters are likely to be accorded substantially greater weight if nothing is known of the allegations made by other complainants than if it is known that other complainants have given very similar accounts of sexual offending by the accused. The rational reason for according that defence less weight, and therefore the probative force of the similarity of account evidence, lies in the improbability that several complaints, independently made, would share the substantial similarities apparent in the accounts of the complainants, given the great diversity in human behaviours and imaginations. If the similarity of account evidence excludes the hypothesis of independent concoction beyond reasonable doubt, the similarities can only be explained by collusion on the one hand or the truth of the complaints on the other. [Citations omitted] 312 Regard must be had to s 34S of the EA in determining whether evidence is admissible on a similarity of account basis. Section 34S of the EA provides: 34S—Certain matters excluded from consideration of admissibility Evidence may not be excluded under this Division if the only grounds for excluding the evidence would be either (or both) of the following: (a) there is a reasonable explanation in relation to the evidence consistent with the innocence of the defendant; (b) the evidence may be the result of collusion or concoction. 313 In determining admissibility on a similarity of account basis, the evidence of the complainants need not be identical or indeed strikingly similar. Rather, as outlined by Kourakis CJ in R v C, CA:302 … The question is whether as a matter of human experience the levels of similarity between the complaints might be expected if the complainants for reasons, conscious or sub- conscious, which are peculiar to them, had independently concocted or imagined the offending which they alleged. 314 Subsequently, in MDM v The Queen,303 Kourakis CJ returned to the topic of the admissibility of similarity of account evidence: In this State, the evidence of complainants in multiple victim cases has often been held to be cross-admissible because of the improbability of complainants giving similar accounts of offending by the same person unless their accounts were true. The admissibility of the evidence on that basis has been facilitated by the statutory abrogation of the common law rule of evidence, first stated in Hoch v The Queen, which had required the trial judge to exclude the possibility of concoction before admitting the evidence of one of a number of complainants in the case against the accused on offending against another complainant. This Court has not held that the degree of similarity required to give similarity of account evidence sufficient probative value to substantially outweigh its prejudicial effect extends to the degree of similarity required to show an identity in modus operandi. It is not possible 302 Ibid [65]. 303 (2020) 136 SASR 360 [14]. -- 71 of 84 -- [2024] SADC 64 70 to make such a general statement. The reasoning in both is analogous but not identical. The former reasoning concerns the improbability of similar accounts of offending being given by different complainants unless the offending actually occurred; the latter concerns the improbability of two different offenders committing offences in a very similar way. The first, significant, improbability which arises in evaluating similarities in the independent accounts of different child complainants, is that two or more children known to the accused both happen to fabricate or imagine that they have been sexually abused and/or happen to fabricate or imagine, that the offences were committed by him. The significance of that improbability may be affected by the number of other persons known to them to whom they might have attributed the claimed offending. However, any additional similarities in the offending build on that initial improbability. For those reasons, I do not accept that, to be sufficiently probative to substantially outweigh its prejudicial effect, similar account evidence necessarily requires a greater degree of similarity than is required for propensity evidence. [Citations omitted] 315 As Kourakis CJ emphasised in R v C, CA,304 an assessment of the probative force of similarity of account evidence requires a focus upon those similarities and dissimilarities that bear upon the improbability of independent concoction, fabrication, or imagination. In the circumstances of that case, for example, the fact that the three complainant boys were of a similar age, did not have a father figure in their lives, were all acquaintances of the accused’s foster son, and all accompanied the accused on outings, were held not to be probative similarities for this purpose. 316 This emphasis was repeated in DES v The Queen,305 and MDM v The Queen.306 In MDM v The Queen, Peek J explained the need to focus upon similarities in the narrative of the allegations made by the complainants, rather than personal characteristics of the complainants or the accused.307 317 The narrative accounts need not be strikingly similar to attain the requisite probative force.308 In considering similarities in the narratives of the allegations, the focus must be on the ‘peculiarity and detail’ of those narrative accounts,309 rather than features that are commonplace and unremarkable.310 As the Court said in Phillips v The Queen:311 The similarities relied on were not merely not ‘striking’, they were entirely unremarkable. That a male teenager might seek sexual activity with girls about his own age with most of whom he was acquainted, and seek it consensually in the first instance, is not particularly probative. Nor is the appellant’s desire for oral sex, his approaches to the complainants on social occasions and after some of them had ingested alcohol or drugs, his engineering of opportunities for them to be alone with him, and the different degrees of violence he 304 [2013] SASCFC 137 [93]. 305 [2020] SASCFC 32 [70]. 306 (2020) 136 SASR 360 [14]-[16] (per Kourakis CJ, Kelly J agreeing) and [128]-[135] (per Peek J). 307 Ibid [135]. 308 Phillips v The Queen (2006) 225 CLR 303 [58]. 309 R v Bonython-Wright (2013) 117 SASR 410 [50]. 310 Sexton v The Queen [2022] SASCA 73 [121]. 311 (2006) 225 CLR 303 [56]. -- 72 of 84 -- [2024] SADC 64 71 employed in some instances. His recklessness in persisting with his conduct near other people who might be attracted by vocal protests is also unremarkable and not uncommon. 318 In DES v The Queen, Doyle J said that the focus must be upon the degree of similarity between the complainants’ allegations of abuse, rather than the number or regularity of the instances of alleged abuse. Importantly, the similarity must be between the complainants’ allegations, rather than the complainants’ characteristics.312 As outlined by Peek J in MDM v The Queen:313 … the similarities to be taken into account when applying similar account reasoning are only those appearing within the narrative of allegations made by each of the relevant complaints such as to make it improbable that each complainant would have independently falsified to that same level of detail. 319 The Court in Sexton v The Queen stated:314 If it is a reasonable possibility that the similarity of account is the product of collusion or contamination between the complainants, the probative value of the evidence is defeated. Put another way, the probative force of the similarities in the accounts of each complainant is necessarily undermined if the similarities are due to collusion or contamination between the complainants. It is only if the prosecution excludes collusion or contamination as a reasonable possibility that the evidence can be legitimately used by the jury as a basis for objective improbability reasoning. If the prosecution does not, the evidence of similarities in each complainant's account proves nothing. 320 Having regard to the above, the similar age and gender of the complainants, the role played by the accused as a grandfather of all complainants and the location of the offending are all of limited relevance for the purpose of similarity account reasoning. These matters are peripheral to the physical sexual offending alleged against the accused. 321 The determinative inquiry in the present case is whether the commonality and peculiarity of detail amounts to such that the probative value of the complainant’s evidence in excluding the hypothesis of independent fabrication can outweigh the prejudice associated with multiple allegations of sexual impropriety being adjudicated by the one trier of fact. 322 [M]’s account of the charged offending is qualitatively different from that described by [O] and [T] for the charged act upon which [M] came up to proof. The charged act upon which [M] came up to proof is described as a violent and penetrative act of abuse. This is to be contrasted with the non-penetrative and more subtle sexual behaviours described by [O] and [T]. In these circumstances, [M]’s account is not sufficiently common and peculiar in nature to be admissible for similarity of account reasoning in relation to her sisters’ evidence. 312 [2020] SASCFC 32 [70]. 313 (2020) 136 SASR 360 [130]. 314 [2022] SASCA 73 [190]. -- 73 of 84 -- [2024] SADC 64 72 323 It is evident that [O] and [T] discussed their accounts with one another on a number of occasions. They discussed both charged and uncharged acts and were together when disclosures were made to their mother, [JP]. In those circumstances, the prosecution has not excluded as a reasonable possibility the serious risk of contamination between [O] and [T]. It follows that the evidence of [O] and [T] is not cross-admissible for the purposes of improbability reasoning. Sexual interest 324 As I understand the submissions of the prosecution, it is submitted that the charged and uncharged acts against each of the complainants, [M], [O], and [T] are admissible pursuant to s 34P(2)(b) of the EA in that the evidence demonstrates that the accused had a sexual interest in his pre-pubescent granddaughters and a demonstrated willingness to act on this sexual interest when the opportunity arose.315 Further, the prosecution submitted that the evidence of sexual interest and a tendency to act in furtherance of that interest makes it inherently more likely that the offending occurred.316 325 I turn then to the question of whether the evidence of the charged and uncharged sexual acts alleged to have been committed against [M], [O] and [T] are capable of establishing that the accused had a propensity to sexually offend in a particular manner; that the accused had a sexual interest in pre-pubescent girls; that he had a willingness to act upon that sexual interest; and whether he was therefore more likely to have acted pursuant to that propensity in relation to the charged acts. 326 For evidence to be admissible for a propensity purpose, it must first pass the test in s 34P(2)(a) of the EA That is, the probative value of the evidence must outweigh any prejudicial effect it may have on the accused. Further, for the evidence to be admitted for a permissible use that relies on a particular propensity or disposition of the accused as ‘circumstantial evidence of a fact in issue’, it must have strong probative value, having regard to the particular issue or issues arising at trial pursuant to s 34P(2)(b) of the EA.317 327 In R v MJJ; R v CJN, 318 Kourakis CJ made the following observations about weighing the probative value of evidence: The impermissible use identified in s 34P(1) of the Evidence Act is the drawing of an inference of guilt from the fact that the accused has engaged in other conduct which has no relevant connection to the offence other than to share the epithet discreditable. Evidence of discreditable conduct of that kind may, admittedly with some imprecision, be described as evidence of a mere, or general, propensity. Section 34P(2)(b) expressly provides for the admission of discreditable conduct evidence which shows a particular propensity or disposition of the defendant. The particular propensity or disposition must be strongly probative of the offence charged and outweigh its prejudicial effect. Discreditable conduct which has a permissible use, other than by way of demonstrating a particular propensity, 315 Prosecution Written Submissions on Discreditable Conduct. 316 Ibid. 317 MDM v The Queen (2020) 136 SASR 360 [9]. 318 (2013) 117 SASR 81 [18]-[19]. -- 74 of 84 -- [2024] SADC 64 73 need only have a probative value, whether weak, moderate or strong, which substantially outweighs its prejudicial effect. At the core of the assessment of the probative value of discreditable conduct evidence are two analytical steps. The first is to identify the particular fact which is in issue. The second is to consider how, if at all, the discreditable conduct evidence circumstantially increases, as a matter of human experience, the probability of the existence of that fact. Resorting to generalities such as ‘context’, ‘background’ and ‘underlying unity’ will seldom illuminate the analysis. [Citations omitted] 328 The probative value of the evidence will depend on the extent to which the propensity makes the elements of the offence charged more likely. This involves a comparison between the propensity and the facts in issue. As outlined by the plurality in Hughes v The Queen:319 A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant. 329 Determining the admissibility of propensity evidence is necessarily a fact-sensitive task. The evidence of [M], upon which she came up to proof, reveals one episode of digital penetration when [M] was 13 years old. Self-evidently [M] could not be described as ‘pre-pubescent’. 330 Having regard to all of the evidence, including the charged and uncharged acts relied upon by the prosecution and the ultimate findings adverse to the prosecution case in this regard, the prosecution has not established the relevant evidence has sufficient probative value to prove the asserted sexual interest in [M]. 331 Kourakis CJ in R v C, CA was not satisfied that a single isolated incident of offending against one complainant, standing alone, manifests a propensity which is strongly probative of the greater offending against the other complainants.320 The remarks of Kourakis CJ are apposite to this matter. In the present case, there is an allegation of a course of conduct with a multiplicity of sexual acts involving [O] and [T] as opposed to evidence of a single incident involving [M], upon which [M] came up to proof. 332 Further, on the evidence of [O] and [T], they were 6 and 7 when the offending began, and 11 after the Queensland holiday. 333 I am mindful of what was said by Kourakis CJ in R v C, CA:321 In my view, s 34P(3) of the Evidence Act is more likely to weigh against the admissibility of discreditable conduct evidence when the permissible form of reasoning is based on a 319 (2017) 263 CLR 338 [64]. 320 [2013] SASCFC 137 [74]. 321 [2013] SASCFC 137 [79]. -- 75 of 84 -- [2024] SADC 64 74 propensity or disposition which is not powerfully established by the evidence of discreditable conduct. 334 In assessing whether the evidence establishes that the accused has a sexual interest in [M], [O], and [T], I have regard to the whole of the acts relied upon, both charged and uncharged. Ultimately, for reasons which follow, the Court is not satisfied of proof beyond reasonable doubt on the charged acts. In those circumstances, the uncharged discreditable conduct is not capable of rehabilitating flaws in the evidence of the charged offending. Further, for the reasons that follow, the Court is not satisfied that much of the uncharged discreditable conduct was proved, and therefore does not meet the criteria for admission pursuant to s 34P(2)(b). The evidence relied upon by the prosecution is not capable of demonstrating a sexual interest on the part of the accused towards [M], [O], or [T] because of various inconsistencies, shortcomings and deficits on the prosecution case. Forensic disadvantage 335 Whilst the requirement to direct on s 34CB of the EA does not apply to a trial by judge alone, the principle of forensic disadvantage remains. The question of forensic disadvantage pursuant to s 34CB of the EA was discussed by the Court of Criminal Appeal in R v Cassebohm,322 R v Maiolo (No 2),323 R v W, PK,324 and more recently in R v R, PA.325 336 What is crucial is that s 34CB is exclusively directed at the forensic disadvantage to the accused, and that disadvantage is not diluted by virtue of similar disadvantages to the prosecution witnesses. 337 In R v Cassebohm, Doyle CJ, relevantly said: I consider that it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that that is so. 338 In R v Maiolo (No 2), these factors result in a diminution of the accused’s ‘ability to effectively conduct the case including to cross-examine the complainant(s) in a way that effectively casts doubt upon issues of credibility and/or reliability’. 339 I direct myself that in respect of all counts, the accused has been substantially forensically disadvantaged in terms of being able to effectively conduct his case. I will take into account that forensic disadvantage to the accused when I come to scrutinise the evidence of the prosecution, and to assess whether the prosecution has proved the objective elements of the relevant count against the accused. In this case, no specific items of forensic disadvantage were identified or advanced by 322 (2011) 109 SASR 465. 323 (2013) 117 SASR 1. 324 [2016] SASCFC 5. 325 [2019] SASCFC 19. -- 76 of 84 -- [2024] SADC 64 75 defence counsel. Notwithstanding this, I accept the existence of a forensic disadvantage in accordance with that expressed in R v Maiolo (No 2), above. Good character 340 The accused called two witnesses, [DL] and [KP], to give evidence as to his good character and reputation. Each witness was aware of the nature of the allegations made against the accused by his granddaughters. 341 [DL] has known the accused for 40 years through her late husband’s association with the accused through their employment at the railways. She said the accused is well-liked and respected by those who know him and that he has a reputation for honesty. 342 [KP] was the wife of the accused’s late son, [A]. She has known the accused since 1992. [KP] and [A] separated in 2011. Notwithstanding the separation, [KP] remained in contact with the accused. She said that the accused is highly respected and held in high regard, as well as having a reputation for being an honest person. 343 The evidence of the accused’s good character is relevant for the following purposes: 344 First, when assessing the credibility or truthfulness of the accused’s evidence. A person of good character is generally considered to be less likely to lie or to give a false account of themselves when giving evidence, and as such, this is a consideration when deciding whether to accept the prosecution’s evidence. 345 Secondly, it is evidence that can be used in determining the likelihood that the accused committed the offence. This is because it is generally considered that a person of good character is less likely to commit a criminal offence and, in this way, is a consideration when deciding whether to accept the prosecution’s allegations that he committed the offences. 346 However, it is to be noted the mere fact that someone is of good character cannot alter proven facts. It is only one of the many factors that the court can take into account in determining whether it is satisfied beyond reasonable doubt of the guilt of the accused. Record of Interview (ROI) of the Accused 347 As previously mentioned, the accused participated in a record of interview with the police in relation to the allegations raised by [M], [O], and [T]. 348 Whilst there were some differences in the detail upon which the accused was taxed during the ROI and those ultimately relied upon by the prosecution, the accused was consistent in his denials of any wrongdoing. 349 The accused agreed that he had the opportunity to offend against each of the complainants, and made concessions as to [M], [O], and [T] sleeping in his bed. -- 77 of 84 -- [2024] SADC 64 76 The accused made a comment that sometimes his hand would flop down, and his thumb would be inside the elastic of [O] and [T]’s underwear. Whilst this aspect of the accused’s interview is concerning, when considered in the context of the entirety of the interview, it does not amount to a confession, nor having regard to all of the evidence, does it cause me to reject his denials as being reasonably possibly true. This admission does, however, support aspects of the complainants’ evidence that the accused would sleep with them in circumstances of close contact with their underwear and associated regions of their bodies. I have paid close regard to this aspect of the narrative of the accused. 350 An overall assessment of the interview leads me to conclude that the accused made appropriate concessions, was consistent in his account, and whilst there were admissions to sometimes odd, unusual, or behaviour requiring careful scrutiny by the Court, there is nothing in his account, when considered along with all of the evidence presented at trial, that would cause the Court to reject his denials as being reasonably possibly true. SMS communication with JP 351 The SMS exchange between JP and the accused after the allegations came to light are contained within Exhibit P10. The fact of those communications do not appear to be in dispute. The communications do not amount to an admission to any charged incident on the part of the accused. The communications of the accused with [JP] support aspects of the prosecution case which are not materially in dispute; namely the opportunity of the accused to commit the charged acts, and admissions by the accused to close physical contact with the complainants. 352 Generally speaking, the SMS communications authored by the accused are similar to much of what the accused stated in the record of interview. Discussion Counts 1 and 2 353 The evidence of [M] was adversely impacted in a number of material ways. [M] failed to come up to proof in relation to particular (d), an allegation of the accused kissing her on more than one occasion. As to particular (c), there was evidence that the accused touched or licked [M]’s ear on only one occasion, as opposed to on more than one occasion, as alleged. Whilst it is true that [M] disclosed an occasion when the accused made contact with her ear using his tongue on one occasion, I am not satisfied beyond reasonable doubt that this occurred in circumstances of indecency. The prosecution have failed to exclude the reasonable possibility that this incident arose from horseplay. Further, acting on the evidence that on one occasion [M] woke up with her thumb resting on the accused’s genitals, the complete absence of any explanation as to how her thumb came to be in that position means that the Court cannot be satisfied beyond reasonable doubt that the accused caused [M] to touch his penis, as alleged in particular (a). -- 78 of 84 -- [2024] SADC 64 77 354 This has the consequence of the sole remaining particular, particular (b), an allegation of the accused inserting his finger into [M]’s vagina, being the only surviving particular of count 1. On the Crown case, this is an isolated act of digital penetration that is alleged to have occurred on a single specified occasion. 355 It follows that the Court is not satisfied of proof beyond reasonable doubt as to particulars (a), (c) and (d) of count 1. Given that particular (b) to count 1 relates to a single allegation of digital penetration, it necessarily follows that the prosecution has not proved that the accused intentionally committed two or more of the particularised acts and therefore the accused is to be found not guilty on count 1. 356 Count 2 is an alternative to count 1. 357 The allegations giving rise to particular (b) of count 1 and to count 2 are the same. Whilst [M] was able to describe the act of digital penetration relied upon, her evidence included a number of proved inconsistencies between her evidence and statements previously provided to police, which included [M]’s positioning on the bed, the positioning of [M]’s legs, the evidence of [M] that the accused jumped on top of her on the bed effectively pinning her down,326 that the accused kept pulling [M] closer, lifting her feet up towards the roof (up almost to his shoulder), [M] stating that the accused stood at the end of the bed, grabbing her by the ankles and pulling her closer, and [M] telling police that she had to ‘scrunch’ her legs up to her chest. 358 Whilst [M]’s complaint to [AR] is capable of demonstrating consistency of conduct in that [M] complained of being touched on the vagina by the accused, the detail of [AR]’s evidence reveals further inconsistencies on the part of [M], notably, that [M] was pretending to be asleep when the touching of the vagina occurred. 359 The inconsistencies do not relate to peripheral matters. There are multiple inconsistencies. Considered together, the alternative version arising from the inconsistencies describe a mechanically very different incident to the version given by [M] in evidence. Further, on the evidence which I accept as to the physical limitations of the accused, there was a consistent theme that those limitations mean that it was not possible for the accused to ‘jump’ onto [M] as suggested. When given the opportunity to clarify the use of this language in re-examination, [M] reiterated that the accused ‘jumped’ or ‘leapt’. The evidence before the Court as to the physical limitations of the accused overwhelmingly support a finding that the accused was not physically capable of jumping or leaping onto [M]. Put simply, it was not possible for the accused to leap onto [M] in the manner she described. 360 Particular (b) of count 1 and count 2 have not been proved beyond reasonable doubt. The accused is not guilty of count 2. 326 T49-51. -- 79 of 84 -- [2024] SADC 64 78 Count 3 – complainant [O] 361 The prescribed interview of [O] (Exhibit P5) took place when she was 11 years of age. [O] was 13 when giving evidence at trial. The predominant focus of Exhibit P5 was the uncharged conduct alleged to have taken place in Queensland. 362 During the course of the prescribed interview, [O] frequently lapsed into a plural-first-person subjective description of events. It is often difficult to disentangle the narrative in order to ascertain what is alleged to have happened to who, presumably with reference to her sister, [T]. Even making allowances for the age of [O] when the prescribed interview was conducted, the lack of detail she provided is concerning. 363 This absence of detail extends to the charged particulars. In relation to particular (d), causing [O] to touch the penis of the accused on more than one occasion, the high water mark of [O]’s evidence to this particular is that the accused would put ‘their’ legs over his legs and she could ‘feel his dick’ and that it happened more than one time. 364 The at times confusing nature of [O]’s account and lack of detail were compounded by aspects of unsatisfactory evidence. One of those topics related to the photograph taken of [O] on the toilet during the Queensland holiday. The toilet photograph formed part of Exhibit D6. It was also a subject of evidence from [MP], the father of [O]. 365 The recurrent theme from [O] relating to this photograph was that it was prurient in nature. [O]’s evidence was that the focus of the photograph was upon her vagina. 366 When shown the photograph under cross-examination, she agreed that her vagina was not visible. [O]’s immediate explanation was that the picture had been cropped. However, when pressed, [O] agreed that the accused showed the photo to her father [MP] immediately after it was taken and that she and her father started laughing. When pressed on the issue further, [O] agreed that she was sitting on the toilet on her bottom and that her vagina was not visible in the photograph. 367 [MP] stated that he was shown the exhibit photo immediately after it was taken. The image he saw appears as it does in the exhibit. [MP] agreed that he found the photograph funny, and that it was not a photograph of any concern. 368 I accept the evidence of [MP] on this topic. [MP] was very matter of fact and dismissive of any nefarious aspect to the taking of the photograph. I do not accept the photograph was cropped as suggested by [O]. The evidence that the photograph was immediately shared with [MP] is contrary to [O]’s assertion in this regard. 369 A difficulty that arises with [O]’s evidence on this topic is that it demonstrates a capacity, if not willingness on the part of [O], to retrospectively -- 80 of 84 -- [2024] SADC 64 79 attribute a nefarious prurient description to something considered to be humorous or anodyne conduct on the part of the accused. The fact that [O] was prepared to insert incorrect details into her account, such as the editing of the image, to support her position is also problematic. 370 The insertion of incorrect details may well be as a result of [O] reconceptualising events in a different way utilising hindsight. This is a concern in the circumstances of this particular matter, given the potential for reconceptialisation of the events giving rise to particular (b), namely causing her to kiss him on the lips on more than one occasion. This tends to be supported by the evidence of [O] saying that the kissing would consist of a bunch of kisses, and that kissing on the lips was something that would occur in the presence of other family members. This is particularly so in relation to the group Christmas kiss327 discussed earlier in these Reasons, seemingly nefarious at first blush, but innocent on a proper assessment of the evidence. 371 Another inconsistency of significance relates to [O]’s evidence under cross-examination that she did not see the accused touch her sister [T] inappropriately. This is contrary to what [O] stated in her prescribed interview. 372 Careful consideration has been given to the respective arguments of prosecution and defence on this inconsistency. In assessing the significance of the inconsistency, I am mindful of the age of the complainant and the difficulties sometimes associated with young and/or unsophisticated witnesses responding to certain types of questions during cross-examination. However, ultimately, I am satisfied that the witness properly understood the suggestion and answered accordingly. It follows that this is a material inconsistency. 373 A common issue arising on both the evidence of [O] and [T] is the likelihood of the alleged acts of abuse occurring at night time inside the family caravan. This is worthy of discussion, particularly in light of the evidence that arose from [O] and [T]’s father, [MP], and the photographs related to the family holiday in Queensland that was tendered. 374 [O] and [T] describe being indecently assaulted by the accused at night in the beds of the caravan. Those accounts include descriptions of less than momentary sexual touching, accompanied with discussions between the accused and the object of his assault, be it [O] or [T]. 375 [MP] described the layout of the relevant caravan, which is consistent with the tendered photographs. The theme of this evidence, which the Court accepts, is that the sleeping quarters within the caravan were cramped, and that there was virtually no privacy. To use the words of [MP], ‘Well, you could hear if somebody farted’ and that you could basically hear everything when inside the caravan. 327 See [112] above. -- 81 of 84 -- [2024] SADC 64 80 376 [MP] agreed that he never heard anything being said by the accused in the caravan at the relevant times to either of the girls. [MP] did not see or hear anything troublesome in the caravan. 377 Whilst the Court accepts that sexual offending against children can often occur in the most brazen circumstances, it is inherently unlikely that the accused would be able to offend in the manner explained by [O] and [T] at night time in the confines of the caravan, in the presence of their father, against each of them, on a multiplicity of occasions. Pool incidents – uncharged 378 The prosecution rely on discreditable conduct said to arise on [O]’s evidence about activity taking place in a swimming pool whilst on holiday in Cairns. [O] described playing a game in the pool that involved [O] and [T] diving under the water between the accused’s legs. The description given by [O] about this activity is devoid of adequate detail about the nature of physical contact between [O], [T] and the accused to permit any finding that any touching was attended with a prurient purpose. It cannot be excluded that what had occurred was horseplay forming part of normal interactions between [O], [T] and the accused during the course of playing games in the swimming pool. The revisionist nature of [O]’s evidence about the toilet photograph is also relevant to an assessment of this evidence. Count 4 – complainant [T] 379 The prescribed interview of [T] (Exhibit P7) took place when she was 11 years of age. [T] was 13 when giving evidence at trial. As was the case with her sister [O], the predominant focus of [T’s] prescribed interview was the uncharged conduct alleged to have taken place in Queensland. 380 [T] described uncharged acts taking place at night in the caravan in close proximity of [JP], the father of the complainant. This included the accused talking to, and encouraging, [T] to touch his genitals. Again, the layout of the caravan, the almost complete lack of privacy and close proximity of the family, means that it is inherently unlikely that the uncharged offending inside the caravan occurred as described, or without going unnoticed. 381 The contents of Exhibit P7 as they relate to the charged allegations are frequently expressed in the plural as ‘we’ and ‘our’. An example of this is when asked when the touching started, [T] responded ‘we can’t remember’, and that the accused would touch ‘our bum’. The focus of [T] as to the charged offending in Exhibit P7 appears to be about smacking on the bottom, and that any touching on the vagina is something of an afterthought. 382 There is also the difference in account by way of omission on the part of [T], in that at no stage did [T] make mention of the accused having both twins sit on his lap, kiss them, and touch them on the bottom. The charged particular (b) in -- 82 of 84 -- [2024] SADC 64 81 relation to [T] relies entirely on the evidence of [O]. [T] has never described being inappropriately kissed by the accused. 383 In relation to particular (d); the accused causing her to touch his penis on more than one occasion, as it relates to [T], the evidence on this topic is vague and lacks specific detail. The evidence of [T] describing the accused telling ‘us to put our legs over his legs’ is vague. Overall, the evidence on this topic lacks sufficient detail for this particular to be proved. General observations 384 The evidence of [O] and [T] is left generally in an unsatisfactory state. Their prescribed interviews are confusing, on occasion devoid of detail, absent of context, and often told either on behalf of the other complainant or on behalf of both complainants. 385 Their sworn evidence fails to rehabilitate these shortcomings. 386 The inconsistencies that I have found proved and the lack of particularity on the part of each of the complainants is not inconsequential. Assessment of the credibility and reliability of the complainants 387 Whilst there was nothing in the demeanour of each of the complainants in the course of examination-in-chief or cross-examination which caused me any concern about credibility or reliability, it is vital that demeanour and presentation not be given undue weight in an assessment of honesty and reliability. Any determination of those issues can only be made having regard to the whole of the evidence, the criticisms raised by defence in the course of the trial, and whether there is support for the evidence of each complainant. Whilst I do not have to be satisfied beyond reasonable doubt as to the reliability and credibility of every aspect of the complainants’ evidence, it is trite to say that the prosecution case stands or falls on an acceptance of that evidence as to whether the sexual acts took place, beyond reasonable doubt.328 388 On the whole of the evidence, given the inconsistencies that arose on the evidence of [M], [O], and [T], the confusing accounts given by [O] and [T] in the prescribed interviews, including the frequency in which those narratives were expressed in the plural; difficulties in distilling the acts said to have been perpetrated upon whom; whether the acts occurred in Queensland or South Australia, the inherent improbability of the uncharged acts taking place in the caravan on the Queensland holiday; the inability of the prosecution to prove a prurient component to the accused’s impugned behaviours; the forensic disadvantage suffered by the accused; the good character of the accused and the fact that the Court could not exclude the denials of the accused as being reasonably 328 Murray v The Queen (2002) 211 CLR 193 [57]. -- 83 of 84 -- [2024] SADC 64 82 possibly true, the Court is not satisfied as to proof of the charges to the exacting standard of proof beyond reasonable doubt. Verdicts 1. The Court is not satisfied beyond reasonable doubt as to the particulars of count 1. 2. The Court is not satisfied beyond reasonable doubt as to count 2. 3. The Court is not satisfied beyond reasonable doubt as to the particulars of count 3. 4. The Court is not satisfied beyond reasonable doubt as to the particulars of count 4. 389 Having regard to all of the evidence, I find the accused not guilty on all counts. -- 84 of 84 --