[2024] SADC 75

Prosecution: R Counsel: MR R WALKER WITH MS E HARPER - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: RNWH Counsel: MS J ABBEY KC - Solicitor: EVITTS LEGAL Hearing Date/s: 07/03/2022 to 21/03/2022, 30/01/2023 to 02/02/2023 and 03/04/2023 File No/s: DCCRM-20-1792 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 RNWH [2024] SADC 75 Reasons for the Verdict of the Honourable Justice Kimber 28 June 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO- INCIDENCE CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR CONSISTENT STATEMENTS CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR INCONSISTENT STATEMENTS This is a trial by Judge alone. The accused is charged with four counts of Maintaining an Unlawful Sexual Relationship (Maintaining Counts) and nine counts of Indecent Assault (one in the alternative to a Maintaining count). The counts involve nine complainants. Two of the complainants are children of the accused, the balance are his step-children. In addition to the alleged sexual acts committed by the accused, each complainant alleged that the accused engaged in a significant amount of non-sexual violence which is not the subject of any count. There is significant forensic disadvantage to the accused. The offences are alleged to have occurred in the 1970’s and 1980’s. There are important issues with respect to the reliability of the evidence of complainants given, for example, the passage of time; prior inconsistent statements; and the risk of innocent contamination -- 1 of 170 -- due to discussions within the family over many years and commencing in the 1980’s. Issues with respect to credibility also arise. The accused did not give evidence but called evidence which contradicted some aspects of the evidence in the prosecution case. The evidence establishes that the accused had a propensity to engage in sexual acts with children in his care notwithstanding the risk of detection. The accused did not give evidence. Verdicts: 1. Guilty of Counts 1, 6, 7, 9 and 13. 2. Not Guilty of Count 3 but guilty of Attempted Indecent Assault in the alternative. 3. Not Guilty of Counts 2, 4, 5 and 10–12 inclusive. 4. No verdict on Count 8 as it is an alternative to Count 7. Evidence Act 1929 (SA) ss 34M, 34P and 34R, referred to. R v Rippey [2022] SASCA 141; R v J, JA (2009) 105 SASR 563; Hughes v The Queen (2017) 263 CLR 338; Rodway v The Queen (1990) 169 CLR 515; R v Seigneur (2009) 103 SASR 2023; R v C, CA [2013] SASCFC 137, applied. R v Marshall [2023] SASCA 105; R v Crafter [2019] SASCFC 25, discussed. -- 2 of 170 -- R v RNWH [2024] SADC 75 Criminal: Trial by Judge Alone KIMBER J: Introduction.......................................................................................................... 4 Summary of verdicts..................................................................................................... 7 Background .................................................................................................................. 7 A brief overview of the conduct the subject of each count ......................................... 9 Count 1 ...................................................................................................................... 9 Count 2 ...................................................................................................................... 9 Counts 3 and 4......................................................................................................... 10 Count 5 .................................................................................................................... 10 Count 6 .................................................................................................................... 10 Count 7 .................................................................................................................... 11 Count 9 .................................................................................................................... 11 Counts 10, 11, 12..................................................................................................... 12 Count 13 .................................................................................................................. 12 Legal Directions ................................................................................................. 12 Elements ..................................................................................................................... 12 A single trial of nine complainants ........................................................................... 14 General directions ...................................................................................................... 14 Out of court statements .............................................................................................. 14 Forensic disadvantage to the accused ....................................................................... 15 An overview of the submissions of the accused ............................................... 16 Preliminary Matters .......................................................................................... 17 Acts of violence not the subject of any offence (non-sexual violence) .................... 17 DG ........................................................................................................................... 18 LH ............................................................................................................................ 19 JH ............................................................................................................................ 20 JP............................................................................................................................. 21 Mr John P ................................................................................................................ 22 CB ............................................................................................................................ 23 Mr Wayne P............................................................................................................. 24 JS ............................................................................................................................. 25 MW .......................................................................................................................... 26 RH............................................................................................................................ 26 -- 3 of 170 -- [2024] SADC 75 Kimber J 2 DA............................................................................................................................ 26 SDH ......................................................................................................................... 27 Non-sexual violence—discussion .............................................................................. 34 Impermissible use—non-sexual violence .................................................................. 38 Violence to SW ........................................................................................................... 38 Alcohol........................................................................................................................ 38 Opportunities for collusion or innocent contamination ........................................... 39 Discussion within the family in the 1980’s.............................................................. 39 Events in 1997 and 1998 ......................................................................................... 39 The 2015 investigation ............................................................................................ 41 Some of the evidence of the complainants about contact and discussion ..... 41 Discussion in the 1980’s ............................................................................................ 43 Conclusion .................................................................................................................. 43 DA–Count 13 ...................................................................................................... 43 Background ........................................................................................................ 44 Count 13 .............................................................................................................. 45 A summary of the submissions of the accused with respect to DA .......................... 46 Further discussion ..................................................................................................... 50 The use of the evidence of DA of Count 13 with other complainants ........... 51 JS–Counts 7 and 8 ............................................................................................. 51 The evidence of JS ..................................................................................................... 52 The evidence of Mr Doug Hallett .............................................................................. 53 Contact with police and discussion in the family...................................................... 53 The evidence of JS about her memory ...................................................................... 59 The evidence of Mr Doug Hallett (continued) .......................................................... 60 The evidence of SDH ................................................................................................. 60 A summary of some of the submissions of the accused about Counts 7 and 8 ....... 61 Further discussion ..................................................................................................... 65 DG–Count 1 ........................................................................................................ 70 Background ................................................................................................................ 70 Uncharged sexual conduct ........................................................................................ 71 Count 1 ....................................................................................................................... 71 Use of DG’s evidence of uncharged sexual conduct ................................................ 72 A summary of the submissions of the accused.......................................................... 73 Further discussion ..................................................................................................... 75 MW–Count 9 ...................................................................................................... 79 -- 4 of 170 -- [2024] SADC 75 Kimber J 3 Count 9 ....................................................................................................................... 79 Some aspects of the evidence of RH .......................................................................... 81 A summary of the submissions of the accused.......................................................... 81 Further discussion ..................................................................................................... 90 Propensity and improbability ........................................................................... 91 Propensity—section 34P(2)(a) and (b), and (3) ........................................................ 93 Improbability reasoning – section 34P(2)(a) and (3) ............................................... 94 JS–Count 7 ......................................................................................................... 96 CB–Count 6 ........................................................................................................ 98 Count 6 ....................................................................................................................... 98 Initial complaint ......................................................................................................... 99 A summary of the submissions of the accused........................................................ 101 Further discussion ................................................................................................... 115 LH–Count 2 ...................................................................................................... 117 Count 2 ..................................................................................................................... 117 Some other aspects of the evidence of LH .............................................................. 119 Inconsistent statements ............................................................................................ 120 Further discussion ................................................................................................... 123 JH–Counts 3 and 4........................................................................................... 129 Count 3 ..................................................................................................................... 129 Count 4 ..................................................................................................................... 130 Other conduct of a possibly indecent nature........................................................... 130 Inconsistent statements ............................................................................................ 131 Further discussion ................................................................................................... 139 Attempted Indecent Assault ..................................................................................... 144 JP–Count 5 ....................................................................................................... 144 Count 5 ..................................................................................................................... 144 Other aspects of JP’s evidence ................................................................................ 145 A summary of the submissions of the accused........................................................ 146 Further discussion ................................................................................................... 157 RH–Counts 10–12 ............................................................................................ 160 Counts 10–12 inclusive ............................................................................................ 160 A summary of the submissions of the accused........................................................ 163 Further discussion ................................................................................................... 165 Conclusion—Counts 10 and 11 ............................................................................... 166 Conclusion ........................................................................................................ 168 -- 5 of 170 -- [2024] SADC 75 Kimber J 4 Introduction 1 This is a trial by Judge alone. 2 The accused is charged with the following offences: First Count Statement of Offence Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935). Particulars of Offence RNWH between the 23rd day of December 1976 and the 25th day of December 1976 at Kybunga, indecently assaulted DG. Second Count Statement of Offence Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935). Particulars of Offence RNWH between the 25th day of August 1973 and the 24th day of February 1982 at Hallett, Hoyleton and other places in the State of South Australia, being in a position of authority in relation to LH, a person under the age of 18 years, maintained an unlawful sexual relationship with LH by engaging in two or more unlawful sexual acts with or towards her, namely: (a) Touching her vagina and genital area on more than one occasion; (b) Inserting a finger into her vagina on more than one occasion; and (c) Masturbating in her presence on more than one occasion. Third Count Statement of Offence Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935). Particulars of Offence RNWH on the 31st day of August 1978 at Hoyleton, indecently assaulted JH. Fourth Count Statement of Offence Indecent Assault. (Ibid). Particulars of Offence -- 6 of 170 -- [2024] SADC 75 Kimber J 5 RNWH between the 31st day of August 1978 and the 30th day of September at Hoyleton or another place, indecently assaulted JH. Fifth Count Statement of Offence Indecent Assault. (Ibid). Particulars of Offence RNWH between the 1st day of July 1983 and the 31st day of July 1983 at Snowtown, indecently assaulted JP. Sixth Count Statement of Offence Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935). Particulars of Offence RNWH between the 2nd day of January 1974 and the 2nd day of January 1987 at Snowtown and other places in the State of South Australia, being in a position of authority in relation to CB, a person under the age of 18 years, maintained an unlawful sexual relationship with CB by engaging in two or more unlawful sexual acts with or towards her, namely: (a) Touching her vagina and genital area on more than one occasion; (b) Inserting his fingers into her vagina on more than one occasion; (c) Performing an act of cunnilingus upon her on more than one occasion; and (d) Touching her breasts on more than one occasion. Seventh Count Statement of Offence Maintaining an Unlawful Sexual Relationship With a Child. (Ibid). Particulars of Offence RNWH between the 1st day of March 1980 and the 1st day of March 1988 at Snowtown and other places in the State of South Australia, being in a position of authority in relation to JS, a person under the age of 18 years, maintained an unlawful sexual relationship with JS by engaging in two or more unlawful sexual acts with or towards her, namely: (a) Touching her vagina and genital area on more than one occasion; (b) Touching her breasts and chest area on more than one occasion; (c) Inserting a finger into her vagina on more than one occasion; and (d) Performing an act of cunnilingus upon her on more than one occasion. -- 7 of 170 -- [2024] SADC 75 Kimber J 6 Eighth Count Statement of Offence Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935). Particulars of Offence RNWH between the 1st day of December 1985 and the 31st day of December 1987 at Snowtown or other places in the State of South Australia, indecently assaulted JS. Ninth Count Statement of Offence Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935). Particulars of Offence RNWH between the 13th day of November 1980 and the 31st day of December 1989 at Snowtown and other places in the State of South Australia, being in a position of authority in relation to MW, a person under the age of 18 years, maintained an unlawful sexual relationship with MW by engaging in two or more unlawful sexual acts with or towards her, namely: (a) Touching her vagina and genital area on more than one occasion; and (b) Performing an act of cunnilingus upon her. Tenth Count Statement of Offence Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935). Particulars of Offence RNWH between the 19th day of September 1981 and the 18th day of September 1984 at Snowtown, indecently assaulted RH. Eleventh Count Statement of Offence Indecent Assault. (Ibid). Particulars of Offence RNWH between the 19th day of September 1985 and the 18th day of September 1987 at Snowtown, indecently assaulted RH. Twelfth Count Statement of Offence -- 8 of 170 -- [2024] SADC 75 Kimber J 7 Indecent Assault. (Ibid). Particulars of Offence RNWH between the 19th day of September 1987 and the 18th day of September 1989 at Snowtown, indecently assaulted RH. Thirteenth Count Statement of Offence Indecent Assault. (Ibid). Particulars of Offence RNWH between the 19th day of September 1976 and the 12th day of December 1979 at Hallett, indecently assaulted DA. Summary of verdicts 3 These are my reasons for finding the accused guilty of Counts 1, 6, 7, 9 and 13; finding the accused not guilty of Count 3 but guilty of Attempted Indecent Assault with respect to that count; not returning a verdict on Count 8; and finding the accused not guilty of Counts 2, 4, 5 and 10–12 inclusive. Background 4 The initials of the accused are RNWH. The complainant in Counts 10–12 has similar initials. To avoid confusion in this judgment, the complainant in Counts 10–12 will be referred to as RH and I will not refer to the accused using his initials. 5 The accused was born on 11 January 1945 and was in a relationship with SW at the time of the alleged offending. At the time the accused and SW commenced a relationship, SW had eight children from a previous relationship with IW. IW had passed away approximately six to 12 months before the relationship between the accused and SW commenced. Seven of these children are complainants in this matter. At the time the accused and SW commenced their relationship, the accused had at least four children from previous relationships. One of those children, DA, is a complainant in this matter. For clarity, I set out the above and some other information in a family tree below: -- 9 of 170 -- [2024] SADC 75 Kimber J 8 6 After the death of IW, SW and her children moved into a house in the northern suburbs of Adelaide. It was after that move that SW and the accused met. They formed a relationship and the accused commenced living with SW and the children born at that time. SW was pregnant with, or had just given birth to, MW at the time the accused moved in. I note there may be uncertainty around the paternity of MW. The accused’s relationship with SW is likely to have commenced sometime during 1973. 7 The accused’s four children did not move to SW’s home when the accused commenced living with her. 8 The accused and SW lived at many addresses in South Australia and Victoria. Various of the children lived with them during the period in which the charged conduct is alleged to have occurred. For example, DA and SDH lived with them for certain periods of time and some children left the home when they were about -- 10 of 170 -- [2024] SADC 75 Kimber J 9 16 or 17 years of age. The majority of the places the accused and SW lived were in country areas. The accused worked on at least one piggery as a farm hand. For a time, SW and the accused lived in, or near, Kaniva in Victoria. The towns the accused, SW and the various children lived in or near in South Australia included Naracoorte, Kybunga, Hallett, Hoyleton, Gum Creek, Farrell Flat and Snowtown. Naracoorte is in the south-east of South Australia and Kaniva is in the same area, but over the border. It is likely that SW and her children born at that time lived in the south-east before moving to the Mid North of South Australia. The towns in the Mid North were at least the six towns mentioned above, other than Naracoorte and Kaniva. 9 There are agreed facts with respect to schools attended by complainants.1 The evidence from school records is to the effect that the accused and any complainants who had not left home were living in or near Hallett by May 1975; Gum Creek by May 1979; Farrell Flat by February 1981; and Snowtown by November 1981. Given the passage of time, the school records are more reliable evidence of where the accused was living than the memory of any witness. A brief overview of the conduct the subject of each count 10 Of the nine complainants, the accused is the father of DA and RH. The accused can be referred to as the step-father of the remaining complainants. Count 1 11 In Count 1 it is alleged that the accused indecently assaulted DG in 1976. DG’s evidence was that this occurred at the family home in Kybunga on Christmas Eve.2 DG says she was 14 years old.3 The accused was drunk.4 The accused complimented DG on a Christmas card she had written and said ‘Let me kiss you’.5 The accused then said ‘Let a man kiss you.’ DG said the accused pushed her up against the wall, tried to kiss her and placed his hand on her knickers, pushing his fingers in towards her vagina.6 The act the subject of Count 1 is the touching of DG’s vagina. Count 2 12 In Count 2 it is alleged that the accused maintained an unlawful sexual relationship with LH between 1973 and 1982.7 LH’s evidence was that she was around nine-and-a-half years old when she first met the accused8 and that his unlawful sexual acts began shortly after he moved in.9 LH says the accused often 1 Exhibit P4, Agreed Facts II, Agreed Facts 7–15. 2 T111–2. 3 T112; T147–8. 4 T113. 5 T111. 6 T114–T115. 7 The date range commences when LH turned nine-and-a-half and ends the day before her 18th birthday. 8 T174.11. Elsewhere in her evidence Ms Hallett implied that the accused first moved in when she was about eight-and-a-half or nine: T189.34–35. 9 T201. -- 11 of 170 -- [2024] SADC 75 Kimber J 10 stood in the doorway of the bedroom she shared with her sisters and masturbated.10 It happened, she said, ‘numerous times over the years’.11 LH described ‘many’ occasions on which the accused entered the room and knelt down next to one or other of her sisters’ beds.12 LH also said that, on ‘numerous occasions’, the accused leant over her while she lay in bed, pulled her nightie up and her underwear down and penetrated her vagina with his fingers.13 Counts 3 and 4 13 In Counts 3 and 4 it is alleged the accused indecently assaulted JH on two separate occasions in 1978. The first, Count 3, took place, on JH’s evidence, the day after her brother, SJH, was born; 30 August 1978.14 JH was several months shy of her 13th birthday.15 JH said the accused asked her to sit on the bed.16 He then ‘fondled’ her breasts and ran his fingers inside her knicker line.17 Having opened on the indecent assault consisting of touching JH’s breasts and vagina,18 the prosecution elected in its closing to rely on the act of touching JH’s vagina as the act to which Count 3 relates. 14 Count 4, on JH’s evidence, took place a few days, or a couple of weeks, after the events of Count 3.19 JH and her brother were ‘mucking around’ in the back of the car.20 JH says that the accused reached back and touched her vagina.21 Count 5 15 In Count 5 it is alleged that the accused indecently assaulted JP on the occasion of her 15th or 16th birthday. 16 JP says that she drank alcohol and ‘passed out’.22 She says she woke to the accused having inserted his fingers into her vagina.23 Count 6 17 In Count 6 it is alleged that the accused maintained an unlawful sexual relationship with CB between about her fifth and 18th birthdays. CB says that from the age of about five, the accused entered her bedroom three to four nights a week.24 CB says he manipulated her clothing so that he could place his fingers in her 10 T193. 11 T194.16. 12 T194–T196. 13 T197–T199. 14 T265.34–35; Exhibit P1, Agreed Facts I, Agreed Fact 13. 15 See Exhibit P1, Agreed Facts I, Agreed Fact 7. 16 T266.22. 17 T266–T267. 18 T10.12–19. 19 T269.20–22. 20 T270.5–6. 21 T270–T271. 22 T375–T376. 23 T377. 24 T436. -- 12 of 170 -- [2024] SADC 75 Kimber J 11 vagina.25 The accused also placed his hands under her top and touched her breasts.26 CB also described the accused, on one occasion when she was 14 or 15 years of age,27 licking her vagina.28 Count 7 18 In Count 7 it is alleged that the accused maintained an unlawful sexual relationship with JS between about her ninth and 17th birthdays. JS says that the day after her ninth birthday, the accused entered her bedroom and touched her breasts and vagina.29 JS said that the accused licked her vagina.30 JS said that there were other occasions on which the accused entered her bedroom and touched her vagina.31 19 JS gave evidence that there were also two occasions on which the accused was caught by Mr Doug Hallett sexually assaulting her. Mr Doug Hallett was, at that time, the partner of her eldest sister. On one of those occasions, JS says Mr Doug Hallett was yelling at the accused.32 JS says she saw Mr Doug Hallett grab the accused,33 and there was a ‘kerfuffle’.34 On the other occasion, JS said she passed out and woke to the accused licking her vagina.35 Again, JS said Mr Doug Hallett walked in and that she later heard yelling and fighting.36 20 Mr Doug Hallett gave evidence of seeing a sexual assault of JS on only one occasion.37 Mr Doug Hallett says he entered a room at night and saw the accused ‘with his fingers up [JS’s] vagina.’38 Mr Doug Hallett said that JS was 14 or 15 years old at the time.39 The conduct allegedly observed by Mr Doug Hallett is one of the sexual acts particularised within Count 7. It is also the act the subject of Count 8 which is an alternative to Count 7. Count 9 21 In Count 9 it is alleged that the accused maintained an unlawful sexual relationship with MW between about her seventh birthday and the age of 16. MW says the accused entered her bedroom at night and touched her vagina more than she could count.40 MW said her mother caught the accused on one occasion.41 25 T440; T444. 26 Ibid. 27 T448. 28 T440; T444. 29 T562–T563. 30 T564–T565. 31 T574. 32 T572.2–3. 33 T572.32. 34 T571.28. 35 T575–T576. 36 Ibid. 37 T713–T714. 38 T724.1. 39 T716. 40 T618–T620. 41 T624. -- 13 of 170 -- [2024] SADC 75 Kimber J 12 MW alleges the accused also performed oral sex on her when she was around 13 years old.42 Counts 10, 11, 12 22 In Counts 10, 11 and 12 it is alleged the accused indecently assaulted RH on three separate occasions. RH described the first of these as taking place when he was five or six.43 RH said the accused inserted his finger into his ‘arse’ (Count 10).44 RH said he was nine years old when the accused next sexually assaulted him.45 Again, RH was in one of his sisters’ bedrooms when the accused approached and digitally penetrated his anus (Count 11).46 RH said that when he was 11, the accused came into his bedroom late at night, and pulled down his pants,47 but he jumped out of bed before anything else happened (Count 12).48 The prosecution opened on the basis that the accused had penetrated RH’s anus on that occasion, but RH did not give that evidence. The prosecution submitted in closing that the act the subject of Count 12 was the pulling down of the pants of RH.49 Count 13 23 In Count 13 it is alleged that the accused indecently assaulted his natural daughter, DA. DA did not live with the accused and SW on a consistent basis nor for as long as other complainants. DA says that she lived with the accused, SW and others during two separate periods50 starting, she said, at the age of about 11 or 12 in 1976.51 DA says the accused pulled her onto his lap and placed his hand up her top and fondled her left breast and nipple.52 Legal Directions Elements 24 Before the accused can be found guilty of a count, every element of that count must be established beyond a reasonable doubt. 25 Counts 1, 3–5, 8, and 10–13 are counts of Indecent Assault. For the purposes of this trial, those counts have the following elements: 1. The act the subject of the count was committed; 2. The act involved a deliberate application of force; and 42 T621. 43 T667. 44 Ibid. 45 T670–1. 46 T671. 47 T674. 48 T674–5. 49 T1012–T1013. 50 T734. 51 T795; T732. 52 T739. -- 14 of 170 -- [2024] SADC 75 Kimber J 13 3. The act was indecent (i.e. – had a sexual connotation). 26 Each act the subject of a count is alleged to have taken place before the relevant complainant was 17 years of age. Issues of consent are irrelevant. 27 In Count 4, there are two issues. First, whether the act was committed. Second, if it was, whether it was indecent. In the remaining counts of Indecent Assault, the only real issue is whether the act the subject of the charge was committed. If the relevant act was committed, there is no dispute the other elements will be established. 28 Counts 2, 6, 7 and 9 are counts of Maintaining an Unlawful Sexual Relationship (Maintaining Count). For the purposes of this trial, that offence has the following elements: 1. The accused was over the age of 18 years at the time of two or more of the unlawful sexual acts particularised; 2. The complainant was under the age of 17 years at the time of two or more of the unlawful sexual acts particularised; 3. The accused knowingly maintained a relationship with the complainant; and 4. While the above relationship was being knowingly maintained, the accused intentionally committed two or more of the unlawful sexual acts particularised in the count with, or towards, the complainant. 29 In this case, in each count, if the fourth element is established in a count, the first two will also be established. As to the third element in each count, there is no dispute the accused was maintaining a relationship with each complainant. The accused was the sole adult male living in the house at the time of any alleged unlawful sexual act within the particulars of the respective counts. At all relevant times, the relevant complainant was living in the same house as the accused and the accused was in the role of step-father. 30 In each Maintaining Count, the real issue is the fourth element. With respect to the fourth element, and in what is an important distinction with the counts of Indecent Assault, s 50(4) of the Criminal Law Consolidation Act 1935 (SA) provides: 50—Sexual abuse of a child (4) However— (a) the prosecution is not required to allege the particulars of any unlawful sexual. act that would be necessary if the act were charged as a separate offence; and -- 15 of 170 -- [2024] SADC 75 Kimber J 14 (b) the trier of fact is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, but must be satisfied as to the general nature or character of those acts… A single trial of nine complainants 31 There was no application that any count be tried separately from another. Each count must be given separate consideration. I will explain later if I have used the evidence of one count with respect to another and, if so, how. General directions 32 It is not necessary for me to direct myself in the same way a jury would be directed. 33 The burden of proof is always on the prosecution. I am to consider the whole of the evidence relevant to a count in determining whether that count is proven beyond a reasonable doubt. An aspect of this is that I must consider the combined significance of any inconsistencies and all other criticisms of a witness’s evidence in evaluating the evidence of that witness. I have done this in evaluating all the evidence in this case, including the evidence of all complainants, but I will not make further express reference to having done so. 34 The accused did not give evidence. I have not drawn any inference adverse to him because he exercised that right. The exercise of the right to silence is not evidence. It does not alter the prosecution’s obligation to prove each element of a count beyond a reasonable doubt. There may be many reasons why the accused exercised his right to silence, and it is not appropriate to speculate. 35 The accused called one witness and some agreed facts were tendered during his case. By calling evidence, and in making submissions about how the evidence should be viewed, the accused did not assume any burden of proof. Out of court statements 36 The only evidence said to be an initial complaint53 is in relation to the complainant CB. I will discuss that evidence later. 37 Putting that aside, there is evidence of what witnesses said outside of court and before giving evidence. No evidence of anything said out of court is evidence of the truth of what was said. That a witness might have said something more than once does not make anything they have said more likely to be truthful or reliable. 38 Putting aside what is said to be an initial complaint by CB, the use of evidence of what was said out of court is two-fold. First, what is said out of court may be a prior inconsistent statement by a witness. If a witness has made a prior inconsistent statement, that must be considered when evaluating their credibility and reliability. 53 Evidence Act 1929 (SA) s 34M. -- 16 of 170 -- [2024] SADC 75 Kimber J 15 Second, what complainants said, and knew, before giving evidence is relevant to what a complainant might have known about the allegations of another complainant (i.e. – it is relevant to the possibilities of collusion and innocent contamination). Forensic disadvantage to the accused 39 Witnesses gave evidence about events alleged to have occurred sometimes as long as almost 50 years ago. The key events about which each complainant gave evidence are alleged to have occurred when they were children. The passage of time between the alleged events the subject of the offences, and the circumstances surrounding those alleged events, has resulted in significant forensic disadvantage to the accused. I have taken that disadvantage into account in scrutinising the evidence.54 40 There is significant forensic disadvantage to the accused in more than one way. The passage of time may have adversely impacted upon the accused’s memory of relevant events and his ability to instruct his solicitor and counsel. It may have impacted upon his ability to test the evidence. Had the trial been closer to the events in question, the accused may have been able to give evidence, or lead evidence from others, about where he was at a relevant time, about who might have been with him or which might have been inconsistent with the prosecution case in other ways. Evidence of this type might have come, for example, from the accused himself, an employer, a witness no longer available or a business record. In terms of business records, the obvious examples relevant in this case are work records, housing records, school records, police records, a record of a call(s) to Lifeline, and the records of other agencies which might have had contact with one or more complainant. 41 As for witnesses no longer available, the father of many complainants passed away in the early 1970’s. There is evidence he sexually assaulted as many as two complainants, being DG and LH.55 SW was living in the various houses at all relevant times where important events are said to have occurred but has passed away. On the prosecution case, she even witnessed some relevant behaviour and discussed it with her children. During the evidence, there was a suggestion that another partner of SW, Mr Dennis G (Mr G), might have sexually assaulted a complainant. One child who lived in different relevant houses, SJH, has passed away. DG gave evidence of an aunt and uncle attributing conduct to IW.56 There was no evidence about whether those two family members were still alive. 42 There is evidence that police may have had contact with at least JS, SW and possibly the accused, in approximately 1986 or 1987 shortly after an incident said to involve JS and the accused. If there was contact with police as a result of something alleged to have taken place with JS, there is no record, and the identity 54 Evidence Act 1929 (SA) s 34CB. 55 T105, T152 (DG); T222 (LH). 56 T117. -- 17 of 170 -- [2024] SADC 75 Kimber J 16 of any police officer(s) involved may not be known. There was a police investigation in about 1998 that did not end up proceeding to a trial. Records may now be incomplete or lost altogether. 43 The passage of time may also have impacted adversely upon the memory of witnesses in ways which have caused a significant forensic disadvantage to the accused. A witness may have become convinced that a particular event occurred, even though it did not. A witness may have forgotten something of significance to the case of the accused. An honest and compelling witness can still be unreliable. After so many years, unreliability can be difficult to test and expose. The risk of assumption and error by witnesses is real. An overview of the submissions of the accused 44 The accused submits that no count has been proven beyond a reasonable doubt. 45 The primary submission of the accused is with respect to reliability. With some complainants and the evidence the subject of counts with respect to them, as opposed to evidence about other matters, the submissions of the accused might be understood as being limited to reliability alone. Nevertheless, for all complainants, I have considered both credibility and reliability. 46 The accused submits the complainants are at least unreliable about what happened and to whom. With respect to reliability, the accused contends that there is a possibility of innocent contamination of the complainants’ evidence in circumstances where: the alleged conduct occurred some time ago; the complainants endured a disordered and tormented childhood; there are prior inconsistent statements; there has been passage of time; and taking into account the vicissitudes of life. 47 The accused also points to evidence with respect to one or more complainants of: alcohol consumption at the relevant times; evidence of poor mental health; head injury; post-traumatic stress disorder (PTSD); and flashbacks among other associated possible impairments to memory. 48 With respect to the risk of innocent contamination, the accused directs attention to the possibility of the complainants confusing alleged sexual offending committed against one or more of the complainants by former partners of SW being IW and Mr G. The accused also directs attention to the occurrence of meetings and/or discussions between family members in relation to alleged offending conduct. In particular, at least, discussions which occurred in about the mid-1980’s after alleged conduct towards JS; a meeting involving some siblings during the investigation in about 1998 at DG’s house or shearing shed; and other occasions on which complainants have spoken to each other about the alleged conduct of the accused and/or the police investigations. -- 18 of 170 -- [2024] SADC 75 Kimber J 17 49 In addition to the impact on the reliability and credibility of the evidence of the complainants, the accused submits the inability to exclude innocent contamination impacts on the way in which the Court should approach the uses of discreditable conduct evidence. In relation to improbability reasoning, the accused contends that where innocent contamination is not excluded, this use is not open because where that possibility remains, it is not improbable that each complainant would have independently falsified their account to the level of detail provided. It is submitted that, in fact, it is the sort of similarities one might expect in a case of independent innocent contamination by a child in circumstances of the household of the accused. 50 In relation to propensity reasoning, the accused submits there is no complainant whose account is sufficiently credible and reliable so as to find their alleged count(s) proved beyond a reasonable doubt and thereby establish a propensity. In addition, even if a propensity was proven, it is said that propensity is not probative, or logically capable, of addressing what might have been done and to whom. Preliminary Matters Acts of violence not the subject of any offence (non-sexual violence) 51 All complainants gave evidence that the accused was a violent man. They gave evidence of violence to them and/or others. Some of the evidence is of violence in the course of disciplining children. To the extent the evidence was of violence to children in the context of discipline, there is no doubt that, even accounting for different standards which might have applied to parental discipline decades ago, if the evidence is accepted, the conduct went well beyond what might have been considered appropriate at that time. There is no doubt that the evidence was of discreditable conduct. There was no objection to the evidence being led. In addition to violent conduct towards children, there is also evidence of violence towards SW. That evidence was also of discreditable conduct. 52 It is convenient to provide a summary at this point of the evidence of each relevant witness about non-sexual violence. There was no dispute that this evidence was admissible pursuant to s 34P(2)(a) of the Evidence Act 1929 (SA).57 57 In footnote [362], I discuss whether s 34P(2)(a) of the Evidence Act 1929 (SA) as amended following the Statutes Amendment Act (Child Sexual Abuse) Act 2021 (SA) applies to this trial. In my view, the Act as amended applies. However, whether I am right about that is not a matter of importance in this trial. In this trial, all discreditable conduct evidence with a permissible use has a probative value which substantially outweighs any prejudicial effect it may have on the accused and so satisfies, at least, the test in s 34P(2)(a) before it was amended. As set out in footnote [362] although the Act has been amended, for the avoidance of doubt, and error, I have decided to apply the Act before it was amended. For discreditable conduct evidence to be admissible, I have required that, at least, it must have a probative value that ‘substantially’ outweighs any prejudicial effect it may have on the accused. -- 19 of 170 -- [2024] SADC 75 Kimber J 18 DG 53 DG said the accused would be violent, but when sober, he was pleasant.58 DG said the accused became the disciplinarian within the house. She said the accused would use a belt, jug cord and his boot.59 DG referred to a specific occasion on which the accused became angry about something happening with cheese. She described it as her ‘most vivid memory’.60 She said she was about 12 years of age which would place the event in about 1974 and not long after the accused began living with SW.61 54 DG said:62 A The most vivid memory is at the first dairy where I said it was just over in Victoria. Yeah, the most vivid memory is somebody had taken a piece of cheese from the fridge apparently. We all got pulled out of bed, because we were all in bed asleep. We all got pulled out of bed and asked who stole the cheese and then when none of us knew who took the cheese, we all got a hiding for it. Q About how old were you. A I would have been maybe 12. 55 Other than herself, she named SDH, LH, JH, JP, CB and JS as present.63 She said at least some of the children present were ‘whipped’.64 56 DG said she was struck with the electrical cord on ‘numerous occasions’.65 When asked what type of things would result in a beating, she said:66 A It was random. It was pretty well walking on egg shells. Sometimes it would be because we didn’t clean up enough. We didn’t do the dishes properly or we back chatted or, you know, yeah, you know if mum wanted us to do something and it wasn’t done properly then, yeah, we would get it. 57 DG gave evidence about incidents involving a firearm. She said this occurred at Hallett. She said:67 A There was a weapon involved at Hallett, it was a gun. He never physically touched us with the gun but he would line us up and I recall on more than one occasion us lining up and he would point the gun at each of our foreheads and he would say ‘Who should I shoot today?’. We were just be crying and, you know, mum would, mum would say ‘Don’t touch the children, just shoot me’. We would be like ‘No no, don’t shoot mum’. I don’t think he would ever do that but it was just - it was an intimidation thing and that would happen several, several times. I recall it definitely 58 T96. 59 T92–T93. 60 T93.20–27. 61 T93.29. 62 T93.20–29. 63 T93.35–38. 64 T95. 65 T98. 66 T98.17–22. 67 T100.8–25. -- 20 of 170 -- [2024] SADC 75 Kimber J 19 more than twice where we would be lined up with the gun. On one evening he ended up smashing the gun and I was there when he smashed the gun because he said, you know, mum said to him ‘What are you doing?’, because he did use the gun to go spotlighting, we used to go out and get rabbits and stuff and he said ‘I’m scared I’m going to follow through’ so he smashed the gun. 58 DG said that on the occasion at Hallett, present were all of the children of SW, other than SDH.68 59 DG also told me the accused used to ‘beat up’ SW. She said it was ‘probably a couple of times a week’.69 LH 60 LH described the accused’s conduct as:70 A …quite brutal, as it was whipped with a jug cord, a belt, kicked, kicked up the arse, but it would be done repeatedly, one at a time. 61 She said the children were pretty well behaved, she could not think of any reason the conduct was deserved.71 62 LH said it occurred on a regular basis and was always worse when there was drink involved.72 She said it occurred at every house at which she lived and she saw her siblings being ‘disciplined’.73 LH gave evidence about getting out of bed at night to be ‘disciplined’. She gave evidence about an incident over damage to a ‘cot mattress’.74 She said those present were struck with a ‘jug cord’.75 63 LH also gave evidence about an incident involving cheese. She said those present were gotten out of bed and ‘lined up against the wall’.76 She said the accused had a firearm and pressed it to the head of those in the line. As to where this occurred, she said:77 A I’m not sure if it was - there was a place at Hoyleton or Hallett, I can’t exactly say what house that was. 64 LH said SDH, DG, JH, JP, CB and JS were present with her. She said: ‘I was terrified but I don’t recall seeing [RH and SJH there and MW] there at the 68 T101. 69 T103–T104. 70 T177.26–28. 71 T178.3–10. 72 T178.15–20. 73 T181. 74 Ibid. 75 T182. 76 T183. 77 T183.34–35. -- 21 of 170 -- [2024] SADC 75 Kimber J 20 time’.78 LH said this was not the only time she saw the firearm, but this was the ‘worst time’ and it had not been held to the head on any other occasion.79 65 LH also said she had been struck to the face more than once.80 LH said there was a ‘lot of physical violence towards my mother’, ‘probably once a week’.81 JH 66 JH said the accused would get ‘really scary’ when he had been drinking.82 She said it started out with belts, or kicking up the backside and the accused used a ‘jug cord’.83 She said she was struck to the head. JH said this ‘discipline’ happened at every house.84 She said she had been ‘hit a lot’ with the jug cord.85 67 JH also told me about an incident involving cheese. She said she thought she was seven years of age which would place the event early in the relationship between the accused and SW.86 JH said:87 A There was one time, when they got home from the hotel at, I’m trying to think of the house we were at, somebody had eaten some cheese and we were lined up to find out and nobody said anything. [SDH and DG and LH] were the ones that were called the bigs [sic] ones at the time, we were sort of kind of grouped up with the big ones, middle ones and little ones, and they were the ones that were in - we all got into trouble but, yeah, I remember them being lined up against the posts of the house (INDICATES), and [SDH] really copped it that night. Q Did you see [SDH] cop it. A Yes. Q Can you describe to his Honour what you saw. A Going around and he’d hold her by the arm and going around in circles, and he was kicking her. He had the cord - Q You were talking about the cord. What happened with the cord. A Yes, I remember the kicking, I seen it, like the kicking, and her hitting with the - we were sent to the beds and that must have been the house with the shearing shed rooms. Q You said that all of your siblings were lined up at this incident with the cheese, is that right. 78 T184.27–28. 79 T185–T186. 80 T188. 81 T187. 82 T262. 83 T263. 84 T265. 85 T263. 86 T264. 87 T263.22–T264.18. -- 22 of 170 -- [2024] SADC 75 Kimber J 21 A In the beginning, and then there was, and then at the end of it, then I remember [SDH, DG and LH] just appeared by standing by the post, I just remember them standing by the post and that, because - Q When you were lined up at the cheese incident, did anything happen to you. A He belted me. I’m not allowed to ask him am I? HIS HONOUR Q I’m sorry, what did you just say. A We got belted because nobody confessed to the cheese. JP 68 JP said the accused was ‘very harsh’ in his discipline.88 She said the accused would behave ‘very violently, angry’ when he had been drinking.89 She said she and her siblings would be dragged out of bed and ‘yelled at for no reasons [sic]’.90 69 JP also gave evidence about an incident involving a firearm. She said she was ‘pretty sure’ it was at Kybunga, but that placing the location was hard.91 I observe that if it was at Kybunga, it is likely in about 1978. JP told me:92 A We were in bed and there was a lot of arguing, carrying on, we could hear [what was] going on, the outside. And then we were dragged out of bed, we were lined up from [SDH], I’m not quite sure whether it was [JS], but I do recall [CB] being alongside me, because I had my elder sister [JH] on one side, and my younger sister [CB] on the other side. And I remember him coming up, walking up and down the line, putting the gun to our heads. Am I allowed to swear? Q Just tell us. A To say what was said. Q Yes, if you’re relating what someone said just tell me what you recall being said, don’t worry about me being offended by bad language, you don’t need to worry about that. A Yeah, I wasn’t quite sure if I was allowed to swear or not. He would point the gun at our heads and say ‘Which one of the fucking little bitches do I take first?’ and walk up and down and have it pointed to our heads like up close (INDICATES). And - Q Did you just tap your forehead then. A Yes. I can remember mum saying in the background ‘Take me, don’t shoot them’. And it went, it seemed to me it went on for a long time. I couldn’t say how long, but I know it seemed like a lifetime to me. And after that, I’m not quite sure if mum 88 T389. 89 T363.24. 90 T363. 91 Ibid. 92 T364.17–T365.8. -- 23 of 170 -- [2024] SADC 75 Kimber J 22 walked out of the, away, because it was terrifying. But then I remember the gun got put down and we were all done, smacked with a cord, like whipped with a cord, walked around in a circle, we called it ‘The Circles’. 70 JP said she did not think JS was present and MW was not there, MW was just a baby.93 JP told me there were ‘so many times’ she was struck with the jug cord. She said it was ‘easily’ four times a week. A belt was also used.94 Mr John P 71 Mr John P was formerly married to JP. 72 Mr John P gave evidence about what he observed of the accused. He said:95 Q Did you notice anything about [the accused] when he’d been drinking. A Yeah, yeah, once he - once he’d been drinking super beers, yeah, he’d just start yelling. Sort of start frothing at the mouth a bit, eyes bulging, just yelling and cursing everyone. Q Did you ever witness any other behaviours of [the accused] when he was drinking. A Yes. On the odd occasion he’d backhand the girls if they answered back. Q When you said backhand girls, do you have any specific recollection of seeing him backhand a particular girl. A Yes, [JP]. When we were going out, we were walking up the passageway and [the accused] was standing there and he yelled at [JP] something and she just gave a little snipe back and he just backhanded her straight across the face. Q If you can say what sort of force was the backhand across the face. A Yeah, it was pretty, yeah, knocked her back. Q You’ve mentioned [JP], are there any other of the girls that you have a specific recollection of seeing him being physical with them. A Yes. I’ve seen him hit [CB]. And we have gone out the farm and all the kids were scared in the bedroom. [The accused] was - we couldn’t see him anywhere and [SW] was actually - she was hiding, sobbing in her bedroom cupboard and she had a black eye. Q And which kids were in the bedroom. A [RH], [SDH], [MW] and [JS]. 73 It was not suggested to Mr John P during cross-examination that any of the above evidence might have been inaccurate. 93 T366.13–17. 94 T370. 95 T351.14–T352.5. -- 24 of 170 -- [2024] SADC 75 Kimber J 23 CB 74 CB said ‘violence’ was directed to one of the girls ‘most nights’.96 She described a jug cord, belt, whip or boot being used. She said the violence did not stop until she left home at about 17 years of age.97 75 CB described an incident involving damage to a cot, or an item associated with a cot. CB said she thought it was MW’s cot. She referred to standing with her arms in the air.98 76 CB told me about an occasion when she was slapped across the head.99 She also gave evidence about an incident involving a firearm. She said she had started school and it was before she was in year six.100 If so, as CB was born on 3 January 1969, it was before about 1979. She thought it was at Kybunga. If it was, it was likely in about 1978. CB said:101 A I recall being lined up, with my sisters, in a line, and [the accused] had a gun, and he was holding that at each of us (INDICATES) and he was walking down the line asking mum ‘Which one do I shoot first’, and she just kept saying ‘Don’t hurt any of my girls, don’t hurt any of my girls’. At one stage she grabbed the gun and said ‘Just shoot me’, and he looked at her and he didn’t want to shoot her, he just (INDICATES) held the gun down the line. I can remember we were in age, I don’t know where [MW] was because she was just little, and [JS] was next to me. I know at one stage I grabbed her and held on to her. I don’t know the time duration that this went on, I just remember looking at that gun, thinking that he was going to shoot all of us that night. Q Can you recall, for example, how old you were or whether you were at school at the time. A I would have been in early school life I reckon, because at this time, at that stage, I was the third youngest and like I say, I can’t really remember where [MW] was, but I know [JS] was standing next to me. Q When you say you can’t remember where [MW] was, do you know what age she would have been. A Little, baby, like little. Baby infant I think. Q Do you know whether [RH] or [SJH] had been born. A No, I don’t recall them being born. 96 T432. 97 T433.35–T434.3. 98 T434–T435. 99 T451. 100 T454.2. 101 T454.6–30. -- 25 of 170 -- [2024] SADC 75 Kimber J 24 77 CB said the accused pointed the firearm at ‘us’, placing it about 12 inches away.102 CB said it was an incident involving cheese or plastic. She said:103 A I can’t even think clearly in my mind. It was, I know I was there. I believe [JH] and [JP] were at a different post but I just know I stood there and don’t put my arms down. Don’t put my arms down – is that with the cheese – is that something to do with cheese. That might have been the plastic. I am sorry there were so many occasions that was just rolled into one nightmare of the life. Mr Wayne P 78 Mr Wayne P was formerly married to CB. He gave the following evidence:104 Q Was there an occasion on which you, or that you on your own, or that you and she decided that she would no longer live there. A Due to an incident one evening, yes. Q What’s the incident that you’re referring to. A I was out at the house one evening in the lounge room, and I’ve come out of the lounge room into the hallway, it’s an old farmhouse, and I witnessed [the accused] with his hands around [CB’s] throat, holding her against the wall. Q Whereabouts was he in the house. A In the hallway. Q And you said his hands were around her throat. A Throat, yes, pinning her against the wall. Q For how long was he holding her in that way. A Well, until I walked out and yelled at him and physically pulled him away from her, and after that I took [CB] with me and she never moved back home. Q You said that he had his hands around her throat, again, can you tell his Honour what state he appeared to be in when he was doing that. A Again, he was inebriated, and angry. Q Did you hear him saying anything. A He was calling her a slut. Q How was he doing it, was he saying it in a normal voice, was he doing it – A No, yelling at her. Q Did you see what led up to that – 102 T455–T456. 103 T457.5–12. 104 T656.11–T657.7. -- 26 of 170 -- [2024] SADC 75 Kimber J 25 A No. Q And you said that you yelled out at him. A Well, I just – Q Or called out to him. A I don’t recall what I said, but I just remember I – I guess I was gobsmacked at what happened and, I know I physically intervened and pushed him away. 79 Mr Wayne P also said that there was always alcohol involved at the household and that ‘when things got excessive there was [sic] always arguments and screaming’.105 He said this occurred on every occasion that he was out at the family home.106 In the cross-examination of Mr Wayne P, it was not suggested that any of the above events had not occurred. 80 Two things should be noted about that aspect of Mr Wayne P’s evidence which mentions CB. CB did not give evidence of such an incident, nor did she give evidence of any incident in the presence of Mr Wayne P. Those differences have not caused me to doubt CB or Mr Wayne P. Given the extent of the violence of the accused, it is not surprising that CB did not give evidence of every occasion. JS 81 JS said that when drinking, the accused would be ‘abusive with us or beat us up or do horrible things to us’.107 JS said it seemed ‘frequent’ with her but ‘probably not as much as the older girls because I was fairly good at hiding’.108 She gave evidence about the use of a jug cord and hand.109 She also said that the accused would ‘kick her up the butt’.110 She said the accused’s conduct was not always in response to poor behaviour. JS said the accused was violent to her siblings and SW.111 82 JS told me she recalled one incident involving a firearm. She could not recall how old she was, nor where she was living.112 83 JS told me she and the siblings were ‘lined up from oldest to youngest’.113 She said all siblings were present, other than not being sure about RH and SJH. JS said the accused pointed the firearm at each child. She said someone had done 105 T657.31. 106 T657. 107 T555.33–34. 108 T555.36–38. 109 T556.6–7. 110 Ibid. 111 T555. 112 T559. 113 T559.19. -- 27 of 170 -- [2024] SADC 75 Kimber J 26 something, she could not recall what it was, but the accused wanted to find out who did it. JS said she was overwhelmed, as was CB.114 MW 84 MW said the accused was not very nice to be around when he was drinking. The accused would get ‘angry’ and ‘would just get violent to whoever was around him’.115 MW gave evidence about a specific incident when she was about 13 years of age. She said the accused grabbed her behind her right ear and pulled some of her hair out after a comment made by one of the children.116 MW said the accused would be violent to her a ‘couple of times a week’117 MW saw the accused be violent to others. She said she saw her mother tied up.118 RH 85 RH gave evidence the accused was violent to him. He said there was:119 A Hitting with kettle cords. Just physical grabbing them like my arms, kicking in the arse. Lots of different, yeah, just a lot of physical violence. 86 RH said he began to stand up for himself when he was about 14 or 15 years of age and after that the accused would stop. RH gave evidence about seeing the accused being violent to JS and MW. 120 DA 87 DA gave evidence she was scared of the accused. She gave evidence about a particular incident before the alleged conduct the subject of Count 13. DA said she saw the accused striking a person with a belt while holding that person down.121 DA also gave evidence about the accused lining up the children in order of age. She recalled occasions involving a bassinet and cheese. She said it was ‘terrifying’.122 88 DA also gave evidence about an incident involving a firearm. She thought it was at Hallett, but was not certain. If it was at Hallett, this alleged incident likely occurred between 1975 and 1978. DA said she could not recall if the other ‘step-sisters’ were present, but recalls SW being there. She said the accused was drunk and staggering. The accused demanded she get out of bed and go to the loungeroom. He was yelling. The accused pointed the firearm at her and pulled the trigger without discharging the firearm.123 114 T560–T561. 115 T612.22–24. 116 T612–T613. 117 T614.15. 118 T615. 119 T665.31–33. 120 T666–T667. 121 T740. 122 T741–T742. 123 T745–T747. -- 28 of 170 -- [2024] SADC 75 Kimber J 27 89 DA said there was one occasion she was struck with an ‘extension cord’.124 She also said she was struck with a hairbrush.125 DA also spoke of seeing SW tied up with her hands behind her back.126 DA said she thought LH might have been with her.127 LH did not give any such evidence. Nevertheless, I do not doubt DA for that reason. I believe any difference to be the product of the passage of time. SDH 90 SDH also gave evidence about the behaviour of the accused. It is convenient to summarise some aspects of her evidence, not just about violent behaviour. 91 SDH was the only witness called in the defence case. Some of the evidence of SDH is contrary to some important aspects of the evidence in the prosecution case. I am mindful that I must consider the whole of the evidence, including the evidence in the defence case, before considering whether any count is established beyond a reasonable doubt. 92 SDH is the eldest child of SW and IW. She refers to the accused as her step-father but also regards him as her father. She described having a ‘special relationship’ with the accused.128 There is no dispute that SDH was living with the accused and SW and complainants for some, but not all, of the period over which the counts are alleged to have occurred. At the time of giving evidence, SDH remained close to the accused.129 93 SDH gave evidence she first learned of any child in the family making an allegation of sexual assault by the accused about 20 years ago but said she had never spoken to any sibling about that. She said that she had a falling out with other family members at about the same time.130 94 SDH said she first met the accused about six months after the death of IW. She said she was about 12 years of age and ultimately lived with him for about eight or nine years until moving out when she was about 19 or 20 years of age. SDH must have moved out in about the late 1970’s. SDH continued to visit houses at which the accused, SW and the complainants lived after moving out. SDH said she never saw the accused do anything sexual to anyone in the house and that he did not do anything sexual to her.131 I note at this point DG said that she had heard something which might be consistent with SDH being sexually abused after hearing an argument between the accused and SW.132 124 T747. 125 T749. 126 T751. 127 T751.14. 128 T890. 129 Ibid. 130 T845–T846. 131 T846–T848. 132 T105–T107. -- 29 of 170 -- [2024] SADC 75 Kimber J 28 95 SDH said she could not recall the accused standing in the doorway at night when she was in bed. SDH said the children shared rooms and that she and DG always shared a room. SDH said she could not recall the accused being in a bedroom at night after she and the other children had gone to bed.133 She said:134 Q Was it something that [the accused] would do, to come into the bedroom that you and other kids were in, after you’d all gone to bed. A No, I don’t recall that. There was a couple of times that we may have been talking about something before we went to bed or something. I don’t recall dad coming in and – I know mum came in once, to talk about plans they’d made. I don’t, no, I can’t recall that he come into the rooms. 96 Contrary to an aspect of the evidence of JH, SDH said she did not think she had ever suggested to her that she strike the accused.135 There is evidence that the accused would permit, even encourage, some complainants to drink alcohol when they were children. SDH said she saw children occasionally finish an alcoholic drink that either the accused or her mother, SW, had. SDH said no one was encouraged to drink.136 SDH said the accused and her mother drank a lot on weekends and would ‘have a session’ every three or four days.137 SDH said that there were many times when the accused and her mother were both grossly affected by alcohol. SDH said that on occasion, their mother and the accused would argue and it would escalate to yelling and screaming. 97 SDH said the accused was a different person when drunk. She said:138 Q If he was drunk and he was disciplining, would the discipline be lighter or harsher if he was drunk. A It probably seemed a little harsher to us because if they were drinking and then there was [sic] arguments we sort of tended to make ourselves scarce, so – and we usually didn’t get into trouble, like especially, like, if they were drinking because we knew we would get a kick up the bum or told off or something. So we thought as kids it was a little bit harsher because it was louder, probably, because of the arguing. 98 SDH said there were a lot of discipline in the house. She said the accused and her mother were strict.139 SDH said the children were punished if they mucked up, but it was not often. She said that there were ‘a couple of instances’ of a belt being used but she could not recall who was struck.140 SDH said the accused was drunk when the belt was used. She said the cord of a jug was also used to discipline her. She said she was about 14 years of age. 133 T847–T848. 134 T848.16–24. 135 T282, T299 (JH); T980 (SDH). 136 T850. 137 T849.33–34. 138 T852.34–T853.5. 139 T850–T854. 140 T852.24–29. -- 30 of 170 -- [2024] SADC 75 Kimber J 29 99 SDH said this was an occasion someone had taken a bite out of cheese. SDH said that although she was not responsible, she took responsibility.141 At one point in her evidence, SDH said the accused was not yelling but ‘ranting and raving’ and raising his voice.142 Nevertheless, later in her evidence she said that the accused did yell.143 She said the accused became ‘really, really angry’ during this incident.144 100 At one point, SDH said about five or six of the children were ‘lined up or standing’ in the lounge room having been called out from different rooms.145 She later said that the children were not lined up.146 101 When asked if it was a violent house growing up, SDH said:147 Q So it was a violent house growing up, wasn’t it. A Yes, but it was still a happy place if the – apart from those occasions when there was violence, yeah. Q And then it was a deeply unhappy place, wasn’t it. A Beg your pardon? Q Then it was a deeply unhappy place, wasn’t it. A At those times when they were arguing it was, yeah. Q It was terrifying. A Yeah, well, no kid likes to hear their parents argue, it’s not – yeah. Q It’s not just about hearing them argue, it was terrifying – A Yeah, seeing – yes. Q Just wait please. It was terrifying when [the accused] was in a rage, wasn’t it. A It was frightening, yes. Q Terrifying. A No, just frightening because you didn’t know what was going to happen. We weren’t terrified because it was, like, we knew mum would protect us if he did do anything, that’s what I mean. 141 T861. 142 T856.12. 143 T960. 144 T959.5. 145 T857.18. 146 T955.4–12. 147 T952.18–38. -- 31 of 170 -- [2024] SADC 75 Kimber J 30 102 SDH said:148 Q Were there other times or not when [the accused] would round up the children and they would stand there and he would yell at them. A Yes, sorry, if one of us had done something that we shouldn’t have, we were all questioned, like all brought together and questioned, and then the guilty party, whichever one it was or whatever they’d done, would then be punished. Q How would they be punished, what were the different ways they might be punished. A If it was a really bad thing, we’d get the kick up the bum. If it was something minor that we know we shouldn’t have done, but we did it anyway was more like removal of privileges or, yeah, you know, like small things like we weren’t allowed to watch TV for a week or weren’t allowed to go to a place that we wanted to go. 103 SDH said:149 Q You talked in your evidence before about [the accused] ranting and raving. A Yeah, it was more like he was – like, when he was yelling it was like shouting, it was just loud like, yeah, really pushing the point home, like yelling constantly, like, if we messed up. Q Was that when he was drunk, not drunk, both. A Drunk. 104 SDH said the cheese incident was later discussed among the children.150 105 SDH said that cheese incident was not the only occasion the children were called together for discipline or punishment. On some of those occasions, she said the accused was ‘in a rage’.151 SDH said there were three occasions when a belt was used.152 She said she never saw the accused slap anyone.153 106 SDH said that she never saw the accused with a gun inside the house and that she could not recall it being used or ‘talked about’ during any discipline of anyone.154 107 There is some evidence to the effect that once they had children of their own, some complainants would not allow their children to stay with the accused without being present as well.155 SDH contradicted this in her evidence.156 148 T861.7–22. 149 T877.25–32. 150 T968. 151 T948.15; T957.38; T963.30; T964.3. 152 T953.5–8. 153 T970.6–7. 154 T975. 155 T504–T506 (CB); T247 (LH); T286 (JH). 156 T991–T993. -- 32 of 170 -- [2024] SADC 75 Kimber J 31 108 SDH said that RH’s eldest son used to stay with the accused and her mother when he was a child. She said this was at Nildottie (a place the accused has lived more recently than when he lived in the Mid North) and occurred quite often for a few days at a time. Sometimes the child would be on his own, sometimes RH and his wife would stay as well.157 109 SDH said she also saw the children of other siblings visiting the accused’s home in Snowtown. She said:158 Q Which kids would be present at that Snowtown house when you were there, and the other adult siblings weren’t. A Usually [JP’s], [CB’s], [JH’s] and sometimes [JS’s], and on occasion it was [LH’s], but she was – that wasn’t very often, and moved too, she was too far away, so she didn’t leave the kids there. Q Do you know, how would those kids get there if their parents weren’t there. A I witnessed quite a few times that I would go over on a Friday afternoon and we’d be sitting out the front and mum would be waiting for my two brothers to get off the school bus, and quite a few times there would be five or six extra kids get off and then mum would get a phone call saying they were in Adelaide, or they were up at Lochiel, you know, and could she watch them. So generally, and sometimes those kids were left there quite often until the Saturday, and on occasion they were picked up on the Sunday. Because the girls were partying. 110 In the context of discussing the evidence of JS, I will refer to evidence of Mr Doug Hallett seeing JS being sexually assaulted and evidence about what some witnesses say occurred at about that time. For present purposes, it is sufficient to record that the evidence included Mr Doug Hallett speaking to SDH about what he says he saw; discussion within the family; and contact with the police. At one point in her evidence, SDH said she did not remember Mr Doug Hallett ever saying something about the accused and JS.159 SDH said she was not aware of any reports to the police about the accused and JS in the period that she was living with her siblings and did not remember any occasion that the police then attended. She said:160 Q Did they attend the house on any occasion, on business, police business, to speak to anyone in the house. A I don’t remember, I don’t remember them turning up. I can’t recall if they came out, I don’t, I don’t remember if they did. They might have done. 111 As for the occasion on which Mr Doug Hallett claims to have seen something involving JS, SDH said:161 157 T867–T868. 158 T871.27–T872.7. 159 T872. 160 T874.32–36. 161 T981.28–T984.13. -- 33 of 170 -- [2024] SADC 75 Kimber J 32 Q Didn’t Doug wake you on one of those occasions when you were staying over and your children were visiting and tell you about something that he’d seen between your father and [JS]. A No. Q Wasn’t there a – I’m saying ‘something’, he was describing something sexual that he’d seen between [the accused] and [JS]. A No. Q And there was a big discussion in the family members who were there about this occasion, wasn’t there. A I remember something come up, but Doug wasn’t – I’m not sure how it come about, because Doug had been talking to someone, and I don’t know who or exactly when, but something come up about dad, but I didn’t wake him, and there was a discussion as to what had actually happened and he, he’d said that he caught dad coming out of [JS’s] room. That’s all I know. I wasn’t, like, awake, I didn’t – I didn’t wake him up to check anything. HIS HONOUR Q No, I think Mr Walker was suggesting that Doug woke you up to tell you something. A No, no. Q But did you just tell me – please correct me if I’ve misunderstood – A Yeah. Q – that there was a time when Doug told you he’d seen [the accused] – A Yeah, one morning he said that he’d seen dad coming out of [JS’s] room. That’s what I meant, I didn’t mean to confuse anything there. I – he didn’t wake me up that night or I didn’t wake him up, it was he said the next morning that he saw dad coming out of [JS’s] room. 112 SDH gave evidence about speaking to JS about what Mr Doug Hallett told her. SDH said: Q Was that something of concern to Doug or it appeared to be of concern to – A It was obvious what, sorry? Q What I’m asking you is whether Doug appeared to be raising that as a matter of concern with you. A It was at the time. I asked [JS] and she denied anything, but nobody could trust what Doug said anyway, he was – if anything, the thought crossed my mind that he’d been in [JS’s] room. But I asked [JS] if anything was wrong and no, she didn’t tell me that dad had been in there or Doug or – she didn’t say that dad had been in there. HIS HONOUR -- 34 of 170 -- [2024] SADC 75 Kimber J 33 Q Well, whatever Doug said to you, did it cause you to speak to [JS]. A Sorry? Q Whatever it was that Doug said to you about seeing [the accused] come out of [JS’s] room – A Yeah. Q – caused you to speak to [JS]. A Yeah, he said – Q And ask her about it. A Yeah, because like why would dad be in [JS’s] room? And I can’t remember what time it was that Doug said he saw dad coming out of [JS’s] room. But she said that, you know, nothing was wrong, she told me that, so – Q Can you remember what you asked her. A Sorry? Q Can you remember what you asked her, what you said to her. A It was – I think I asked her, I said ‘Was dad in your room last night, is anything wrong?’ and she said ‘No’, it was just we thought that Doug must have made it up, I don’t know, he was – he wasn’t exactly an honest, truthful person, that’s what made me think if it was him coming out of [JS’s] room. But [JS] said nothing had happened, so that wouldn’t – the matter was sort of dropped. I asked her, you know, if dad had been in there and–she said ‘No’ and I asked her if everything was all right, so I don’t know who was confused on that part, like – he wasn’t the most honest person. XXN Q You can’t remember what Doug said to you. A Sorry? Q You can’t remember what Doug said to you. A That, all he said was – he was like ‘I saw your dad coming out of [JS’s] room’. Q But do you agree that he must have said something more than that to make you go and speak to [JS] about it. A Yeah. Q Because if he was just saying ‘I saw - ’ A Yes. Q ‘- your dad in [JS’s] room’, that would not be a cause for concern. A Yeah. -- 35 of 170 -- [2024] SADC 75 Kimber J 34 Q So there was something about it that was concerning. A Well, I just wanted to know why dad was coming out of [JS’s] room but she said – like, I said ‘Was dad in your room last night and is everything all right?’ ‘Yeah, no, it’s all right’. So I just assumed that Doug – he wasn’t the most honest person, I just – well, I didn’t know whether he made it up or was causing trouble, I don’t know. 113 SDH said there was discussion the following morning:162 A There was a discussion, yeah, the next morning and it sort of went nowhere because [JS] had said dad wasn’t in there. Doug as [sic] adamant he saw dad coming out of [JS’s] room. The only question I had was what he was doing near [JS’s] room when he didn’t really need to be there but because [JS] had said nothing had happened and she was okay, it sort of went nowhere so if [JS] had said she wasn’t okay or dad had been in there - 114 SDH denied that Mr Doug Hallett had told her that the accused had been in the room of JS and doing something sexual.163 SDH denied that she lied in her evidence because of her ongoing relationship with the accused or because of being married to his nephew.164 115 SDH said she did not ever see her mother tied up.165 SDH said:166 Q When you were a child growing up and [the accused] was violent to you, it was unhappy place to be, wasn’t it. A Not very often. If he went and was violent, it didn’t last for long, and growing up I thought we all had a happy childhood. It was a good place to be. It was not an unhappy place or we were happy. We were carefree. We were allowed to go and do pretty much what we wanted, you know, within reason. We weren’t kept like slaves and told not to talk sort of thing. I thought we had a pretty normal childhood apart from the occasional times that they did drink and dad would get violent, which wasn’t very often. Non-sexual violence—discussion 116 An appropriate starting point for the evaluation of the evidence of the non-sexual violent behaviour of the accused towards children living in his care is the evidence of DA. I have summarised some of her evidence above. 117 For reasons to be discussed when dealing with the evidence of sexual abuse given by DA, DA left the family home as a child and had no further contact with any complainant. While DA lived with other complainants for a relatively short time when she was a child, which gives rise to the possibility of non-sexual violence by the accused being discussed with her when she was a child, I reject that the memory of DA about non-sexual violence might have been contaminated by another complainant before DA left the home of the accused. I also reject that 162 T986.6–13. 163 T989. 164 T995–T996. 165 T976. 166 T934.5–16. -- 36 of 170 -- [2024] SADC 75 Kimber J 35 the memory of DA of the sexual assault of her has been contaminated by anything said by another complainant. There is no evidence that by the time DA left the home of the accused for the last time, that any complainant, or anyone else, had told DA that the accused had sexually assaulted anyone. The latest DA could have lived with the accused was in 1980. The alleged incident involving Mr Doug Hallett was after that. There is no evidence that any complainant spoke of sexual abuse before 1980. 118 It is next helpful to consider the evidence of the accused’s witness, SDH. I have set out some aspects of her evidence about the violent conduct of the accused. 119 Based solely upon the evidence of DA and SDH, I have no doubt the accused was aggressive and violent towards children in his house, particularly if he had been drinking. That the accused was prepared to be violent towards step-children is further confirmed by the evidence of Mr John P and Mr Wayne P albeit that their evidence relates to a later period of time than some of the other evidence of this type and after the relevant complainants allege being sexually assaulted. Nevertheless, it is evidence that informs the way the accused behaved when drinking and his attitude to the relevant step-children. 120 I am satisfied that the evidence of DA about the accused using a firearm was both honest and reliable. I reject that DA might have invented or imagined that conduct. The evidence of DA on that topic falls to be evaluated bearing in mind the evidence of DG, LH, CB, JS and JP who also gave evidence of the accused acting in such a way. 121 Each remaining complainant spoke about the accused acting violently. I consider that evidence to be both credible and reliable, notwithstanding that evidence which might be of the same incident does not correspond in every respect. I am satisfied that each complainant did their best to recall the violent conduct of the accused accurately. I am satisfied that the differences are the product of the passage of time and it being natural that different witnesses to the same conduct will recall things differently. That different incidents, and that the accused was generally a violent man, has been discussed between complainants cannot be excluded. Nevertheless, I reject that the accused behaving violently to children and SW has been invented or imagined. 122 The evidence that the accused was violent to, or in the presence of, his children was overwhelming. Although SDH did not always characterise the behaviour in the same way as complainants did, the evidence of SDH confirmed that the accused behaved in a way likely to promote fear. 123 I am satisfied that each complainant was subjected to an upbringing in which non-sexual violence by the accused was common. I am satisfied that every complainant had reason to fear the accused when they were a child living in a house of the accused. -- 37 of 170 -- [2024] SADC 75 Kimber J 36 124 With respect to the evidence given of non-sexual violence, as I have said, there are differences in the evidence of witnesses with respect to what is said to be about the same incident. For example, those present at the incident involving the cheese differs between witnesses, as does where and when the incident occurred along with details about what took place. Of those witnesses who spoke of a firearm, most only gave evidence of a single incident. Others gave evidence of more than one. Not all witnesses gave evidence about an incident involving a cot. Those who did so did not describe the incident in precisely the same way. There are other differences. There is no doubt that there has been the opportunity for all complaints to discuss the conduct of the accused. 125 The passage of time gives rise to unreliability. I recognise there is a risk the evidence given by witnesses about incidents involving a firearm and other occasions of violence, has been contaminated by discussions within the family. The incidents are of such significance that it might be expected they would be discussed. In all the circumstances, where there are relevant differences in the evidence of witnesses about what appears to be the same incident, I am unable to determine precisely when the incident took place, where, and precisely who was present. I am also unable to determine precisely what occurred on each occasion. 126 That said, for evidence of non-sexual violence to have a use in the prosecution case, I do not have to accept every aspect of the evidence. The issue is whether I am satisfied the accused was violent to children in his home and whether being the victim of that, or observing it, caused specific complainants to fear the accused. If that is so, then the issue is whether that might explain why a particular complainant submitted to sexual conduct, did not complain of it and did not intervene if the accused might have been sexually abusing another in their presence. It also might shed light on whether the accused believed a particular complainant might submit to a sexual act. 127 Having considered the whole of the evidence, I am satisfied the accused did have children within his house removed from their bed, made them stand in a line and punished more than one child physically in the presence of others. I am also satisfied the accused struck complainants with at least a belt, jug cord, electrical cord or boot. I am satisfied the accused held a firearm on at least one occasion and threatened to use it. 128 Having considered the whole of the evidence, I am satisfied the accused commenced non-sexual violent behaviour to the children in the house early in his relationship with SW and it became a regular feature of what would occur in the house. As set out earlier, it is likely that the accused moved into the house with SW and others by about late 1973. LH and JH gave evidence of violent conduct occurring at every house. DG gave evidence of a specific occasion when she was about 12 years of age. That would place the violent conduct as occurring in approximately 1974. JP referred to an occasion when MW was a baby. MW was born in November 1973. SDH gave evidence of an incident with a jug cord being when she was about 14 years of age. This would place that incident in about 1974. -- 38 of 170 -- [2024] SADC 75 Kimber J 37 I am satisfied that the accused was commonly violent in a non-sexual way to, or at least in the presence of, all complainants. I am satisfied each complainant feared the accused because of his non-sexual violent behaviour towards them and/or what they observed towards other children and that, for each complainant, that fear existed before any sexual act by the accused alleged by them. 129 An aspect of the submission of the accused was that the evidence of each complainant about the non-sexual violent conduct of the accused had differences. As I have said, I accept that. From that premise, it was submitted that such differences are an indication of unreliability which needs to be considered in evaluating the reliability and credibility of each complainant about the sexual abuse they alleged that they suffered or observed. 130 As I have said, I recognise that the evidence of the complainants about specific occasions of non-sexual violence differs in some respects. I accept that illustrates the care that is needed in evaluating evidence of other traumatic events such as alleged sexual acts which occurred at around the same time and many decades ago. It is not necessary to examine in detail the differences in the evidence about occasions of non-sexual violence. Even without evidence which illustrates that the potential for unreliability is real, there would not be any doubt that memories of events as a child can be unreliable, particularly when those events are alleged to have occurred decades ago and involve traumatic events. That is something that is essential to bear in mind in evaluating the reliability of the evidence of every complainant about sexual abuse of which they say they were a victim or which they claim to have observed. It would be essential to bear in mind even if the risk of unreliability was not illustrated by specific examples of differences in the memories of different complainants about different acts of non-sexual violence during their childhood. 131 Another aspect of the importance of the evidence of non-sexual violent conduct is whether it might provide an explanation for a complainant to imagine acts of sexual assault. Put another way, might it provide a setting in which a complainant might become convinced that they were a victim of, or witness to, sexual abuse by the accused when they were not? Might it make a complainant more likely to become convinced something happened which did not happen? With respect to each complainant, this will not be overlooked. However, in not overlooking it, it is not obvious to me that being the victim of non-sexual violent conduct might make it more likely that a person will imagine sexual abuse. 132 As a general proposition, a person who bears animus to a person because of their conduct might invent other conduct. It might be easier to make a false allegation about a person when you have good cause to dislike them. I will bear this in mind in evaluating the evidence of every complainant. -- 39 of 170 -- [2024] SADC 75 Kimber J 38 Impermissible use—non-sexual violence 133 I will not use this evidence to reason the accused is a bad person and for that reason more likely to have committed any offence charged.167 Violence to SW 134 As set out above, some witnesses gave evidence of seeing violence to SW. As earlier set out, there was no dispute this evidence was admissible pursuant to s 34P(2)(a) of the Evidence Act 1929 (SA). While that evidence was admissible to shed light on why a complainant who witnessed such conduct might have feared the accused and to possibly inform why that complainant submitted to sexual acts, or did not complain, particularly, but not exclusively, to SW, I will not use that evidence in those ways. I will also not reason the accused was a bad person and for that reason more likely to be guilty because of his conduct towards SW.168 Alcohol 135 Some witnesses gave evidence the accused would permit, or encourage, them to consume alcohol when they were children.169 Permitting a child to do that is discreditable conduct. There was no dispute this evidence was admissible pursuant to s 34P(2)(a) of the Evidence Act 1929 (SA). 136 The only permissible uses of that evidence are the following. This aspect of the accused’s alleged behaviour can provide some insight into the atmosphere in the houses in which the accused and complainants lived. It can explain why witnesses might have been affected by alcohol at the time of relevant events. Alcohol can adversely impact upon memory. Evidence of the accused permitting, or encouraging, children in his care to consume alcohol cannot be used to reason he is a bad person and for that reason more likely to have committed any offence charged.170 137 Many witnesses gave evidence the accused would regularly consume alcohol and become intoxicated. Some witnesses contrasted the behaviour of the accused when sober, to his behaviour when intoxicated. 138 Consuming alcohol to excess, without more, is not discreditable conduct which engages s 34P of the Evidence Act 1929 (SA). Nevertheless, for the avoidance of doubt, such evidence, cannot be used to show the accused is a bad person and for that reason more likely to have committed any offence charged.171 The only relevance of the accused drinking to the point of becoming intoxicated is to shed light upon alleged events within the various houses at which witnesses lived with the accused. It may shed light on why the accused may have lost self-control and been violent with children in his care. Alcohol can lower 167 Evidence Act 1929 (SA) s 34P(1). 168 Ibid. 169 T145–T147 (DG); T189–T190 (LH); T271–T274, T291–T292 (JH); T450 (CB); T553–T554 (JS). 170 Evidence Act 1929 (SA) s 34P(1). 171 Ibid. -- 40 of 170 -- [2024] SADC 75 Kimber J 39 inhibitions and cause people to take risks they might not otherwise take. The evidence the accused consumed alcohol to the point of becoming intoxicated has no other use. Opportunities for collusion or innocent contamination 139 In the case of every complainant, the prosecution must exclude collusion and innocent contamination beyond a reasonable doubt. I have borne that in mind throughout. 140 For reasons I have given, I reject that the memory of DA about sexual abuse might have become contaminated by anything said by another complainant. I also reject that DA might have said anything that might have contaminated the memory of any other complainant about sexual abuse of them. There is no evidence that DA spoke to any complainant about what she says the accused did to her. 141 The balance of the complainants have had contact with each other over a long period of time and there has been opportunity for those complainants to speak to another complainant(s) about their own alleged sexual abuse or the alleged sexual abuse of another complainant. Discussion within the family in the 1980’s 142 There is evidence that there was discussion within the family of the accused having sexually abused JS during the 1980’s. Mr Doug Hallett gave evidence that JS was about 14 or 15 years of age when he observed the accused performing a sexual act with her. That age of JS would place it in about 1985 or 1986. Mr Doug Hallett said the discussion about what he had seen with at least SW, SDH and JP and her partner Mr John P, including about going to the police.172 JS said that she went to the Snowtown Police Station.173 JP also gave evidence consistent with contact with police at this time.174 Evidence consistent with discussions at this time was also given by LH,175 CB176 and JH.177 DG also gave evidence about an alleged incident involving JS having been discussed with her, after she moved out of the family home in about 1977.178 143 What matters is that the possibility of the accused having sexually abused a child in the home was likely raised no later than about the mid-1980’s and was known to at least some complainants (other than DA) from at least that time. Events in 1997 and 1998 144 Commencing in either 1997 or 1998, there was an investigation by the police into the accused having committed sexual assaults. That investigation was led by 172 T717–T718. 173 T577. 174 T415–T416. 175 T212. 176 T473–T474. 177 T280. 178 T117–T118. -- 41 of 170 -- [2024] SADC 75 Kimber J 40 Detective Carson. This investigation of the accused appears to follow from JH being spoken to by police about another person and JH then also making an allegation of sexual abuse by the accused.179 145 Detective Carson first spoke to JH and then DG. Detective Carson used DG as the contact point for other sisters. Before 9 February 1998, there was a meeting at the property of DG at which Detective Carson was present. Detective Carson said DG, JH, JP, JS, MW, LH and CB might have been present.180 Detective Carson explained the purpose of that meeting as follows:181 A Well, the main purpose of the meeting was to establish who all the sisters were, who had any - who wanted to give a statement or give a statement about any offending that had occurred against them. I would have explained about, back in those days, certain offences were statute barred if they happened before November ‘82 so anything that happened prior to then could not be followed up as a criminal investigation at that stage so that was explained and then I was trying to organise contact details for the ladies and to let them know that people will be contacting them in the future to get statements from them about what they wanted to say. 146 In the meeting, which might have lasted for one or two hours, Detective Carson could not exclude that at least some detail of sexual abuse might have been raised by one or more of the complainants present.182 147 That meeting at the home of DG was not the only meeting attended by Detective Carson at around this time. There was also evidence of a meeting at LH’s house attended by at least her, CB and MW.183 JS was spoken to on the phone.184 148 In the late 1990’s, as a result of the investigation by Detective Carson referred to above, the accused was arrested for conduct alleged by CB, MW and JS only.185 Consistent with the evidence of Detective Carson above, if any complainant made an allegation which was ‘statute barred’ because of when the alleged incident was said to have occurred, it could not be prosecuted. The law has since been changed.186 There was no prosecution which followed the arrest at that time. The reasons for that in relation to an allegation which was not ‘statute barred’ do not matter other than it is an aspect of the significant forensic disadvantage to the accused. For present purposes, the conduct of an investigation and at least one group meeting makes it likely that at least some complainants other than DA had reason to speak to other complainants about what was being investigated. What 179 T300; Exhibit P4, Agreed Facts II, Agreed Fact 5. 180 T818.23–28. 181 T819.5–16. 182 T821–T822. 183 T824. 184 T825. 185 T837. 186 See Criminal Law Consolidation (Abolition of Time Limit for Prosecution of Certain Sexual Offences) Amendment Act 2003 (SA). -- 42 of 170 -- [2024] SADC 75 Kimber J 41 was being investigated was sexual abuse of complainants by the accused. It appears that the investigation was not revived until 2015.187 The 2015 investigation 149 Detective Carson revived the investigation in 2015 as a result of contact from JP and CB.188 As a result of that contact, there was at least one further meeting at the home of DG. There is evidence that at least DG, MW, JH and JP were present, but there may have been others. There was discussion about whether any prosecution might be recommenced.189 Detective Carson used DG as his contact person.190 In 2019, the file was handed to a new investigating officer when Detective Carson retired. The accused was arrested in respect of the charged offending on 5 January 2020. Some of the evidence of the complainants about contact and discussion 150 DG gave evidence of the meeting at her home in about 1997 or 1998. DG said SDH was invited but did not wish to be involved. DG said the others at the meeting included herself, JH, JP, CB and RH. DG was unsure about the presence of SJH, MW and LH. DG said details of any sexual abuse were not discussed.191 151 On her evidence, LH appears to have a memory of a meeting at about the same time.192 JH also gave evidence of having discussions with other complainants about the sexual conduct of the accused and also gave evidence of attending the meeting at the home of DG.193 The evidence of JH is consistent with there being at least some discussion about what the accused had done of a sexual nature.194 JH also gave evidence about a meeting in Adelaide which was in order to speak to the police.195 152 JP denied speaking to DG, LH, JH, CB, JS, MW or RH about what had happened to herself or to them.196 153 JS said at the meeting in 1998, all sisters, other than SDH, were present. JS was unable to recall if SJH or RH were present. JS gave evidence that she disclosed to the others that she had been sexually abused. JS said she found out the others present had been sexually abused but there was no detail.197 187 T822. 188 T823. 189 T829–T830. 190 T831. 191 T123–T126. 192 T214. 193 T276–T279. 194 T333–T336. 195 T341–T342. 196 T385. 197 T579–T580. -- 43 of 170 -- [2024] SADC 75 Kimber J 42 154 MW gave evidence she had spoken with JS and CB about sexual abuse of her and them but ‘really not in depth’.198 MW said that she told JS that the accused had touched her vagina but not about cunnilingus. MW said she had probably told all her sisters she had been sexually abused by the accused and recalled a time as being the meeting in the late 1990’s at the home of DG. MW could not recall if RH was present at the meeting.199 155 RH gave evidence that he was aware of sexual allegations about the accused being made by DG, LH, JH and JP but not the detail.200 RH gave evidence CB told him she was touched sexually, but not the detail and that he had told her the same, but also not the detail.201 156 RH gave evidence JS had told him the accused had touched her in the vagina and breast region.202 RH said he had been to a meeting at the home of DG but he could not recall the year. All the children were present but not SDH. RH said:203 Q And do you say that the girls were talking about what had happened to them as kids, and how it had been playing on their minds. A I recall it, yeah, yes. Q And they mentioned also that they were thinking about taking it to the police. A Yep. Q Was there talk about details then. A Not that - I don’t know, no. Not that I can remember, no. Q Do you have trouble now remembering exactly what was said. A No, because I was outside of the shed most of the time, talking to my brother-in-law. Q Was that [DG’s] husband or who was that. A Shane Reynolds. Q The matter didn’t go to court back then did it. A No, I don’t think so, no. 157 At least the following complainants provided statements to police as part of the investigation in 1998: DG, LH, CB, JS, JH, RH, JP and MW. 198 T627–T628. 199 T629–T630. 200 T680–T683. 201 T682–T683. 202 T683. 203 T689.21–38. -- 44 of 170 -- [2024] SADC 75 Kimber J 43 Discussion in the 1980’s 158 Earlier I have summarised some evidence about what is alleged to have occurred involving JS in about the mid-1980’s and I will return to some of that evidence when discovering the counts involving JS. What matters for the moment is the possibility that by the mid-1980’s, at least JP, DG, CB, LH and JS were aware of an alleged sexual assault of JS by the accused. The possibility exists that what the complainants were told at that time was that it was a sexual act involving some contact with the vagina of JS which occurred in the bed of JS at night. Given the police investigation which occurred in 1997 and/or 1998 and its revival in 2015, it is possible that memories of that specific incident were discussed by all complainants, other than DA, at least, in 1997 or 1998 and again, at least, commencing in about 2015. Conclusion 159 Given the evidence of Detective Carson and the complainants (other than DA), the possibility that each complainant (other than DA), was aware by no later than 1998 that more than one other complainant had alleged that the accused had sexually assaulted them cannot be excluded. I recognise that some complainants gave evidence that ‘detail’ had not be discussed. I do not consider that any witness deliberately misled me when giving evidence of what had been discussed and with whom. The discussions about which complainants were asked occurred as long as almost 40 years ago. Memories of exactly what was said are unlikely to be perfect. Nevertheless, when such evidence was given there was no further explanation of what was meant by the term ‘detail’. Given the passage of time, I cannot exclude the possibility that each complainant (other than DA) knew of at least some detail of what more than one other complainant (other than DA) had alleged before any statements were given to police commencing in 1998. When I use the word ‘detail’, I mean the type of sexual act(s) and the circumstance in which it occurred (e.g. – the location, time of day and whether the conduct was repeated). I recognise that not every relevant complainant said that such detail was given. However, at least given: the passage of time; that meetings took place; and as the term ‘detail’ likely meant different things to different witnesses; it is only appropriate to approach the evidence on the basis that I have outlined. 160 In short, the risk of contamination is a real issue for all complainants (other than DA), and I have borne it in mind throughout. That all complainants (other than DA) were likely aware that another complainant(s) had alleged being sexually assaulted by the accused also might provide possible opportunities and motive to concoct an allegation. I have also borne that in mind throughout. DA–Count 13 161 I will commence with DA and Count 13. I do so as I have rejected that there is any risk of contamination of her evidence about being subjected to a sexual assault by the accused. I have also rejected that she might have colluded with anyone to make an allegation she knew to be false. -- 45 of 170 -- [2024] SADC 75 Kimber J 44 Background 162 DA is the daughter of the accused. She was born on 30 September 1964. DA is not the daughter of SW. She is a child of a previous relationship between the accused and another woman. DA has no memory of her parents being together. The accused and her mother separated when DA was very young. DA has been told by other family that her mother surrendered her into care after the separation.204 163 There were periods when DA lived with the accused, SW, and other of the children. At least one of those occasions was at Hallett in the Mid North.205 She was attending the local primary school during at least part of that period.206 DA was enrolled at Hallett Primary School in February 1976 and school records record that the accused was listed as her guardian.207 There were several other children living in the house at that time. DA was unable to say how long she lived at Hallett. DA said that the house at Hallett was not in good repair. DA said that she slept in a sunroom or enclosed veranda in which the windowpanes were missing. DA said that she had a bedroom but SDH would return with her partner and that she would then be kicked out of her room and would sleep on the floor. 164 DA said that her living with the accused in this period was interrupted by her being sent to a convent in Crystal Brook after which she was returned to the family. She said that when she stopped living with the accused and SW she was in year eight. In 1979, DA was enrolled in year 10.208 DA said that she lived in two houses with the accused in this period, the house at Hallett and another house. DA said that one house which had a concrete floor which she said she did not think was the house at Hallett. She later referred to Burra.209 School records suggest DA might have been in Burra until 1980. What matters is that DA was living in Adelaide by September 1980, long before there could have been discussion within the family about something Mr Doug Hallett says he saw happen to JS. 165 DA gave evidence that she left the house at the age of about 12 or 13 and never returned.210 Given the school records referred to above, it is possible that DA was a little older than she said when she left the home of the accused for the last time. That said, it is possible that DA did leave the family home at the age she recalls. There was evidence that she had earlier lived in a convent at Crystal Brook.211 She might have returned to that convent and continued at the same school as before. 204 T731.2–5. 205 T732.17–27. 206 T732.17–18. 207 Exhibit P4, Agreed Facts II, Agreed Fact 9(ii). 208 Ibid 9(iv). 209 T776.15–17. 210 T752.18–23. 211 T734.22–30. -- 46 of 170 -- [2024] SADC 75 Kimber J 45 166 DA said that she did not have any contact with any of her step-siblings after leaving the house for the final time.212 I accept that evidence. Count 13 167 DA said she was sexually assaulted by the accused on a single occasion. DA placed this incident at the house with the concrete floor. There is no dispute that house was in South Australia. 168 DA said the occasion of sexual assault was ‘burned into [her] memory’.213 She said she could not recall whether there was anyone else in the house. She also said it was the ‘only instance of a sexual nature’ committed by the accused she could recall.214 169 An aspect of the evidence of DA about this incident was:215 A … So [the accused] was sitting on a chair and he pulled me on to his lap and he put his hand up inside my top and he fondled me and he asked me ‘Do you like that?’. I said ‘No’ - because I certainly didn’t - and he took his hand out and pushed me off his lap, so flat hands just on my back, pushed me off his lap on to the cement floor. Then he told me to stand up and come back to him so I did. At that stage I was so scared I knew I was going to get into trouble and he made me sit on his lap again and he did the same thing, hand up my shirt. He fondled me again and then he asked me the same question ‘Do you like that?’ And I remember thinking ‘Well I said “no” the first time and he didn’t like that so I have to say “yes”, I have no choice’. So I said ‘Yes’ - can I use the words that I recall him saying? Q Please. A He again pushed me off his lap on to the floor and he said ‘You’re a slut just like your mother’. And that, other words that are just - they’re in my head forever. I was so scared. And I felt that I was doing something wrong, I felt like - I just felt (INDICATES), there’s really no word for it, just maybe shame or disgusting but I just knew I was going to get into trouble but that’s what happened with me with the cement floor. 170 DA said that the memory of her breast being touched would go to her grave with her.216 171 In opening, the prosecution particularised the first occasion DA was touched on the breasts during this incident as being the conduct the subject of Count 13. Respectfully, I doubt that particularisation was necessary given that the evidence was of a single incident. It raises whether the second touching of the breast is discreditable conduct which engages s 34P of the Evidence Act 1929 (SA), a matter about which different views have arguably been expressed, albeit in a factual 212 T753.33–37. 213 T736.6. 214 T741.18. 215 T736.13–36. 216 T773.18–19. -- 47 of 170 -- [2024] SADC 75 Kimber J 46 setting that is distinguishable.217 In my view, s 34P is not engaged. However, for the avoidance of doubt, the only use of the evidence of the conduct after the first alleged touching of the breast is to put the evidence of DA about the act the subject of Count 13 into its proper context. That evidence cannot be used to suggest that the accused is more likely to have committed the act the subject of Count 13.218 A summary of the submissions of the accused with respect to DA 172 The accused expressly conceded that DA had not lied and that the real issue was her reliability. Nevertheless, I have also considered the issue of honesty. I have no doubt DA was honest. The accused also conceded that in the case of DA the same risk of contamination did not exist with DA as might be the case with other witnesses. 173 The accused advanced several matters relevant to the reliability of DA. I will deal with them separately but, as with all complainants, in doing so I have not overlooked the need to consider the whole of the evidence and the combined force of the matters emphasised by the accused. I have done this with every complainant but will not continue to repeat myself. 174 It was not submitted that I should doubt the evidence of DA that she has not had anything to do with any other complainant since she left the family home for the final time. Nevertheless, relevant to the possibility of contamination, the accused did direct attention to the evidence of DA that she had contact with the police after being contacted by a half-brother. DA said that half-brother had contacted her as he had told the police he would do so and pass on the number of the investigator. DA placed this in 2019 and 2020. This would fit with DA being contacted after the investigation of the accused had been revived. DA said she could not recall whether her half-brother told her that sexual offences were being ‘brought up’ with respect to the accused. DA said that she had contact with the police and the police officer told her that sexual offences were being investigated. DA also said that a person connected to RH, perhaps his partner, had contacted the niece of DA online. DA placed this contact with her niece as being after she had contact with the police. DA said that she would not agree to contact as she wanted to maintain the integrity of her memory and what she had said to the police. DA declined any contact until the matter was ‘over and done with’.219 DA said that she told her niece that she had been ‘sexually touched’. There is no evidence that any other complainant who might have been sexually abused, or who might have witnessed such abuse, might have mentioned that to DA before she left the home of the accused for the last time. 175 I reject any possibility that the memory of DA was contaminated by anything said to her by another person. I accept DA’s evidence that she did not have contact with any other complainant after leaving the home when she was a child and find 217 R v Crafter [2019] SASCFC 25, [46]–[47], [125]. 218 Evidence Act 1929 (SA) s 34P(1). 219 T773–T774. -- 48 of 170 -- [2024] SADC 75 Kimber J 47 that cannot have been any later than 1980 as by then she was enrolled in school in Adelaide. I reject the possibility of collusion by DA with anyone else. 176 The accused directed attention to DA having given evidence that she had PTSD and suggested that might impact adversely upon her memory. That evidence was in the context of being uncertain about a specific aspect of her dealings with the police officer with whom she dealt. What DA said about PTSD and memory was not in the context of expressing difficulty in recalling the sexual abuse of her by the accused.220 The evidence of DA was:221 Q Did you sign something in [the police officer’s] notebook that time, or what happened that time when you were with [the police officer] with your statement. A I’m trying hard to recall. I may have signed her notebook. I think I might have. The issue I’m having in remembering is that my PTSD was triggered while she was there and she had to help ground me, you know. I sort of reached a point where too much of when the PTSD kicks in, it’s too much. Look, to the best of my knowledge, I can’t say for certain, I’m sure I would have signed her book. To me that makes sense as a requirement of, yes, this is me and what I’ve said, but remembering picking up a pen and doing that, that’s just not sticking in my head, I’m sorry. 177 Even if I assumed that PTSD may adversely impact upon memory (notwithstanding there being no other evidence other than from DA that it might have that impact), there is no evidence that condition might have been experienced when the alleged sexual act the subject of Count 13 was occurring. To the contrary, DA said that the sexual assault was ‘burned into my memory’ and that it would ‘go to the grave with me’.222 Further, if it be the case that PTSD might impact adversely upon an ability to later remember an event accurately, which I am prepared to assume might be the case, there is no evidence that it might cause someone to recall an event like that the subject of Count 13 if no such event ever took place. I am not prepared to assume that might be the case. 178 The issue in Count 13 is not whether every aspect of what occurred on that alleged occasion is accurate. The issue is whether I am satisfied that the accused touched the breast of DA on that occasion deliberately. I reject that the evidence of DA about her being touched in the way she described might be unreliable because of PTSD. 179 The accused submitted that the evidence of DA of sexual abuse of her differed to that of other complainants. In some respects that is the case. For example, some of the complainants limit sexual acts to touching in bedrooms at night. Some complainants gave evidence of touching of the vagina; cunnilingus and touching of the bottom. The evidence of the other complainants is set out elsewhere in this judgment. In evaluating the evidence of DA, I have considered the differences and whether they undermine the reliability of DA. In my view, 220 T779. 221 T779.9–22. 222 T773. -- 49 of 170 -- [2024] SADC 75 Kimber J 48 they do not. DA did not live in the home as long as other complainants so the opportunity to offend was not necessarily the same. In any event, the force of the submission of the accused also depends upon the level at which the evidence is examined. Common to all complainants is that the accused took opportunities to touch them sexually within the house and while they were in his care. This is not to suggest that, in evaluating the evidence of DA, I have used evidence of what is said to have occurred to other complainants as demonstrating an underlying unity or that the accused has a propensity. I have not done that. The point I am making is that the differences do not, in my view, undermine the reliability of DA about the sexual touching of her. One cannot examine the submission of the accused about the significance of any differences in evidence of sexual abuse of different complainants, without evaluating what is common. Having rejected that any differences undermine the reliability of DA, I put aside the evidence of sexual abuse given by other complainants. 180 The accused submitted that there were matters of background about which DA was likely wrong. Attention was directed to LH having said that she and DA shared a bed in contrast to the evidence of DA, and that DA was the only child to describe watching television in her father’s bedroom. In my view, these matters are not significant in evaluating the reliability of the evidence of DA about whether she was touched in the way she described in her evidence. It is natural that there will be differences in the evidence of witnesses about things that happened many years ago when they were children. These are peripheral matters which might be reminders of the imperfections of memory for events which occurred decades ago, but that would be borne in mind without potential examples of that being so. Further, the differences just mentioned are not about the conduct the subject of Count 13. 181 DA gave evidence that she had attended a family funeral as an adult. The accused submitted that it was implausible that DA would have done that if she had been treated in the way that she alleged. On the evidence of DA this funeral was before 2006. DA said that it was a funeral of an uncle. As for the presence of the accused, DA said:223 Q At an uncle’s funeral. A I believe, yeah. I think - it may have been my Uncle Brian. Q And when was that, what year. A I’m sorry, I can’t recall that but yes, I do recall speaking to [the accused] and I do recall saying that he will never ever meet my children, never have the opportunity to do to them what he did to me, but I believe that was an uncle’s funeral, not - definitely not [SJH], that’s incorrect information you’ve got. 223 T780.32–T781.3. -- 50 of 170 -- [2024] SADC 75 Kimber J 49 182 DA also said that she did not expect the accused to be at the funeral and that when she saw him she felt ‘nausea’.224 183 I reject that DA might be untruthful or unreliable about Count 13 because she went to the funeral of an uncle. I also reject that she might have invented her evidence of what she said to the accused. The evidence DA gave about how she felt on seeing the accused struck me as nothing but genuine. 184 As for the suggestion that evidence given by DA that she wanted at that time to belong to the family might be inconsistent with being mistreated by her step-siblings as she claimed in evidence, DA’s response was that she wanted to belong to ‘the extended family’.225 She was not asked what she meant by that. Given it was the funeral of an uncle, that answer might have had nothing to do with any other complainant. In any event, the real issue is not the treatment of DA by any complainant when she was a child nor why she attended the funeral of an uncle. The issue is whether she is truthful and reliable about the conduct the subject of Count 13. 185 DA gave evidence that when she left the home for the second time and, on her evidence, after the conduct the subject of Count 13, she had contact with Community Welfare. In cross-examination, DA appeared to accept that the reasons she gave to Community Welfare for wanting to leave were the behaviour of some step-sisters and the temper of the accused. When asked if sexual abuse was among the reasons she had given for wanting to leave the home, DA said, ‘I don’t recall if I said that to her or not. That’s the best I can answer on that one, I’m sorry’.226 186 Later in her evidence, DA did not dispute that she had not made a sexual allegation when speaking to Community Welfare. In an answer that I found compelling, DA said about that:227 Q Can you tell his Honour why it was that you didn’t mention this incident of sexual abuse that you have described in your evidence when you were talking to the welfare officer. A That’s correct, I didn’t tell them. Q Can you say why. A Sorry? Q I didn’t mean to interrupt you. Can you tell his Honour why you did not mention that. 224 T781.23–27. 225 T783.36. 226 T771. 227 T797.27–T798.9. -- 51 of 170 -- [2024] SADC 75 Kimber J 50 A Because that was my horror to live with. There was just so much shame associated with it so, yeah, I just didn’t tell them. Just even today it’s a very difficult thing to talk about because there’s so much shame. At the time I just didn’t. I just had to get out and escape. That’s all I focused on. Q What was the difference between talking to them about violence and talking to them about sexual abuse. A Talking to them about violence was very difficult, very upsetting. Talking to them about sexual abuse is I felt dirty, wrong. There’s just a whole wrongness about it, but I just felt so - it’s a dirty thing to talk about. 187 I accept that at the age that she was at the time, DA regarded it as a different thing, on one hand, to disclose being taunted and teased by step-sisters and the temper and violence of her father, and on the other hand, to disclose sexual abuse by her father. Far from this evidence suggesting unreliability, it struck me as a genuine explanation of why she had not complained of something which had occurred. 188 In so far as the accused might be understood as having submitted that DA might be doubted as she was approached by the police and told that sexual offences were being investigated,228 I reject that as in any way suggestive of an absence of reliability. There is no evidence that DA was told what she might say. I reject that the evidence of DA about Count 13 might be unreliable or lacking in credit because of the approach by police. Further discussion 189 DA was an exceptionally impressive and careful witness. Her behaviour in not wanting to have contact with RH as she wanted to maintain the integrity of her memory impressed me as the conduct of someone committed to only speaking of what she genuinely believed had taken place. I find beyond a reasonable doubt that she was honest. 190 The matters emphasised by the accused have not caused me to have a reasonable doubt about the reliability of her evidence of the sexual touching she experienced. 191 I am satisfied beyond a reasonable doubt that she was a reliable witness about having been touched by the accused in the way she described. I reject as a reasonable possibility that she has imagined what the accused said to her on that occasion. What DA said about that impressed me as things which had occurred. It is one thing to have been subject to non-sexual abuse in the house in which she lived with the accused and other children, it is another thing to imagine that an occasion of sexual abuse occurred and to imagine the detail which DA gave. 192 DA became emotional when the incident was first raised with her in examination-in-chief. I reject that emotion might have been feigned. I recognise 228 T773–T774. -- 52 of 170 -- [2024] SADC 75 Kimber J 51 that if a person has come to believe an event occurred, then any emotion exhibited when giving evidence about that event might be the product of what was imagined and not the product of reliving a real event. Nevertheless, I reject that her emotion when giving evidence about Count 13 was anything other than the consequence of her reliving a real event. 193 When DA said that the incident had been burned into her mind, I have no doubt that she told me the truth. I am satisfied beyond a reasonable doubt that what was burned into her mind was something which had occurred. I am satisfied beyond a reasonable doubt that the accused asked her whether she liked what he was doing and made a disparaging comment about her mother. When DA said that she felt scared and dirty during the incident, I have no doubt that she was describing the way that she did feel at the time that she was touched in a sexual way. 194 I find Count 13 established beyond a reasonable doubt. Indeed, I find beyond a reasonable doubt that on the occasion that she described, the accused fondled the breasts of DA on both of the occasions that she described and as part of a single incident. 195 I have found Count 13 proven beyond a reasonable doubt without using the evidence of any other complainant about having been the subject of sexual abuse in any way which might assist the honesty and reliability of DA about the occasion the subject of Count 13. The use of the evidence of DA of Count 13 with other complainants 196 It will be necessary to address the use, if any, to which I have put the evidence of Count 13 in evaluating the evidence of any other complainant about having been sexually abused, but I will first consider some other counts without using the evidence of DA about Count 13. I commence with JS and Counts 7 and 8. JS–Counts 7 and 8 197 JS is the complainant in Counts 7 and 8. The conduct alleged in Count 7 is set out in the particulars. Count 8 is an alternative to Count 7. 198 The conduct the subject of Count 8 was particularised by the prosecution in its opening as an occasion witnessed by Mr Doug Hallett. The prosecution said ‘the prosecution alleges that Doug Hallett discovered the accused performing a sexual act on [JS] while [JS] was lying unconscious. The accused, on the prosecution case, had his head between [JS’s] legs, he was very close to her vagina, and he was touching her vagina with his finger or tongue, or both’.229 As these are the only counts in which someone other than a complainant gave direct evidence of an alleged act the subject of a count (i.e. – an unlawful sexual act within the particulars within Count 7 and a touching of the vagina the subject of Count 8), I 229 T13.37–T14.4. -- 53 of 170 -- [2024] SADC 75 Kimber J 52 will first consider these counts without considering the evidence of any unlawful sexual acts with any other complainant. The evidence of JS 199 JS was born on 2 March 1971. Among what she said in evidence was that while she was a child the accused would come into her bedroom at night after he had been drinking. She gave evidence of an occasion around her ninth birthday. Among what she said about this occasion was: A It was the day after my birthday, after I was in trouble for asking for my birthday present and he had come into my room to reward me, as I remember being told, you know, make it up to me for my birthday or something along that affect [sic] where he had come in to me and started fondling around my breasts and around my vagina and things like that and, yeah.230 … A He came up and he started going up under some of my clothes and pulling my clothes around and things like that and, as I said, he started touching my breasts and things and, yeah, and then fondling around my vagina and things like that.231 200 JS gave evidence the touching of her breasts and vagina on this occasion was both under and over her clothing.232 201 JS said the accused also licked her vagina on this occasion. When asked: ‘Did that happen once or more than once that you can remember’, JS said ‘It happened on several occasions. And I couldn’t remember what house I was at or anything like that, there was [sic] too many houses’.233 202 JS also said sometimes she would leave the room before being touched in any unlawful way, but sometimes the accused would touch her breasts before she would leave. She said she ‘could not recall’ ever being touched on the inside of her vagina. 203 JS also told me she recalled the incident which, on the prosecution case, was witnessed by Mr Doug Hallett. She told me this was before she had turned 15 years of age. She told me she had been drinking and went to sleep in a bedroom within the house. She was still wearing the clothes she had been wearing during the day. She says she woke up to ‘[the accused] and Doug yelling at him’.234 She said the accused was kneeling by the bed and was touching her through her clothes. She said, ‘Mainly on my breasts and waist’.235 She said Mr Doug Hallett grabbed the accused and there was a physical altercation between the two men. 230 T562.30–36. 231 T563.37–T564.3. 232 T564.29. 233 T567.1–5. 234 T572.2–3. 235 T572.8. -- 54 of 170 -- [2024] SADC 75 Kimber J 53 204 As for cunnilingus being performed, JS gave evidence of only one occasion apart from that set out earlier. She said the accused ‘knelt’ over the top of her, her clothing was pulled down. She referred to this as the ‘other occasion’ the accused had licked her vagina. She said before going to bed, she had been drinking. She said this was the ‘second time that Doug had walked in, on a different occasion’.236 The evidence of Mr Doug Hallett 205 Mr Doug Hallett gave evidence of having seen the accused penetrating the vagina of JS with a finger(s). He did not give evidence of there being any more than one occasion of seeing a sexual assault, nor did he say that he had yelled at the accused or fought with him on that occasion.237 206 Before turning to some other aspects of the evidence of Mr Doug Hallett, I mention some other aspects of the evidence of JS and some other evidence which supports there being discussion in the family about something he claimed to have seen involving the accused and JS. Contact with police and discussion in the family 207 I have set out earlier the evidence of SDH about Mr Doug Hallett claiming to have seen something involving JS and will not repeat that evidence. 208 JS gave evidence of having contact with the police before she moved out of the family home and as a result of an incident involving the accused. JS said:238 A There was an occasion that had happened and the police were called, and they came out the night prior, and they were talking to [the accused], and another policeman was talking to my mother and myself, and they left us there and I was just drilled the whole night that [IW] had done this to me and I was imagining it, and if I were to say anything that I was gonna be separated from all of my siblings and everything else like that. They - the next morning two cars had come out, mum and myself were taken in one car, [the accused] was taken into another car, and we were taken to the Snowtown Police Station. Q Just before that, who drilled you about - A [The accused] and mum. Saying that I wouldn’t see my sisters or anyone again, that we were all gonna be separated, and I was saying that it was [IW], that I was thinking it was [IW], I was wrong. HIS HONOUR Q Was this before you moved out when you were 15, or was this - A It was before I moved out. 236 T575.30–38. 237 T710–T728. 238 T577.12–T578.8. -- 55 of 170 -- [2024] SADC 75 Kimber J 54 Q And can you help me with approximately how old you were when the police came out on this occasion, and the next morning you were taken to the Snowtown Police Station. A I believe I was around about 13. XN Q Do you recall whether that was responsive to anything that had happened, any particular incident that had happened in your household, the police investigation. A I - I’m not sure how that all came about. It was one time, I don’t even know who rang the police. Q And after the occasion that I think you said the next day you went to the station. A Yes. Q Was there any police follow-up after that. A No. 209 There is some support for JS having contact with the police at around this time. JP gave the following evidence:239 Q Do you say that you’ve been to the police to report something that happened to [JS]. A Yes, I have been. Q When was that. A 1987. Q 1987. A Yes. Q And you went into the police station in person. A I’m not quite sure if I went in or I rang the police on that occasion, that would have been the Snowtown Police Station. I’d had someone - Mr [Doug] Hallett approached me in the morning and had told me something, that he’d seen [the accused] in [JS’s] bedroom and I told him that I was going to tell the police, that I was going out there because I had had enough and I was going to go confront mum and tell her what was going on. I went to - I had two other siblings, I had [JH] and Brian Masters living in the town at the time and my sister [CB] was married to Wayne. So I went and seen all my siblings and their partners and I said ‘I’m going to go to the police station and ask them to be out there to get it reported’. So I went and seen the others and we all went out to the farm and confronted - I got the blokes to take [the accused] up the backyard and tell him that we were telling mum what was going on. So we took mum to the bedroom and told her what was happening and the police rocked up probably about 10 minutes later, Bronte Lamshed and Alex Mission. And I was heavily pregnant with my first child at the time. It had sent me into labour, so I left 239 T415.33–T416.29. -- 56 of 170 -- [2024] SADC 75 Kimber J 55 about that time. But I was led to believe that there was [sic] CIB officers come over from Kadina Police Station because it was a sexually involved with a child and, yeah. So that was as far as I knew what was - went on about that occasion because I went to hospital and had my baby. 210 That there was some form of meeting at the home of the accused about something said to have happened to JS is further supported by the evidence of LH. LH said that she moved out of the family home when she was about 17 years of age.240 That would have been in about 1981. LH said that she would return to the house for Christmas and other holidays. LH said:241 Q Did you learn of an occasion when Doug was said to have seen something happening between [the accused] and [JS]. A [JS], yes. Q When did you learn of that. A I can’t - I was at - I am just trying to think of the house. I remember we were out there and I don’t know, it must have either been for Christmas or some stage because we didn’t just go randomly out, my husband and I just didn’t go randomly out there. It was generally for an occasion. So, I don’t know if it was Christmas time that we were out there. Everyone had been drinking and apparently - I didn’t see anything I just had heard that Doug had walked in on - … Q At some stage leaving that event aside, did you have a meeting with a number of your sisters to discuss the treatment of each of you at [the accused’s] hands. A Yes. Q When was the meeting. A I don’t know when the meeting was. It was - I thought that was my daughter - just discussed that what had happened with what Doug had walked into and what we were going to do about it. Q Where was the meeting. A It was at their house. Q Whose house. A Mum and [the accused’s] house. Q I am asking did you learn, don’t tell us what anybody told you, but did you learn anything about the detail of what [the accused] was supposedly doing to [JS]. A I did hear about it all, yes. 240 T211.11–16. 241 T212.29–T213.3; T213.15–31. -- 57 of 170 -- [2024] SADC 75 Kimber J 56 211 There is some potential confusion in the evidence because I am not satisfied that any meeting at the home of the accused was about ‘the treatment of each of [the complainants]’ as opposed to an alleged incident involving JS. Putting that aside, the evidence of LH is consistent with her learning of something occurring at the accused’s home involving JS and with there being a meeting at the accused’s home at the time. 212 There is further support for a conversation in the 1980’s in the evidence of CB. CB said that she left home when she was about 17 years of age.242 This would place CB leaving home in about 1986. CB said that at about the time she left home, there was discussion about something Mr Doug Hallett claimed to have seen involving JS. CB said:243 Q Was there an incident or anything that happened that day before you left. A It was around the time that Doug had called everybody because he wanted to discuss the fact that he walked in and found [the accused] hurting my little sister, and the men were gonna talk to [the accused] about it, and us girls were going to speak to mum. And it was not that night I don’t think, but around that time that I was, I left. Q Did you speak to your mother about that incident where Doug said - A … she told me that [JS] was confused because she was drinking too much and she didn’t, she was confusing what [the accused] did, that wasn’t [the accused] that it was [IW], and he was always referred to as ‘dickhead’, and it - I couldn’t find the voice to say that he was doing it to me too, because I was petrified that if this happened that I wouldn’t see them again. 213 CB also gave the following evidence about the approach of her mother and, at least, her belief that there was some contact with the police. CB said:244 Q Were you ever aware that there were any charges against [the accused]. A Yes, yes. Q When did you become aware of that. A [DG] I believe it was, and [DG’s partner] took [JS] to Kadina, and I know again my mother sat there telling me that it was a lie, and it wasn’t [the accused],it was [IW] that had hurt [JS] and abused [JS],and when I tried to mention to mum that I don’t think that [JS’s] lying, she looked at me and told me that ‘You will be all separated again’, ‘You will be taken away from one another’, my weakness, I couldn’t stand up and say anything, and I let my little sister down. 214 The evidence of CB not only supports that there was discussion within the family about what Mr Doug Hallett claimed to have seen, it is also consistent with there being a discussion about females in the family confronting their mother and with the evidence of JS to the effect that her mother told her that IW was 242 T433.35–36. 243 T469.2–18. 244 T473.14–26. -- 58 of 170 -- [2024] SADC 75 Kimber J 57 responsible. It is unclear if what she said about Kadina, which must be taken as a reference to the police, is something she was told. Nonetheless, it is consistent with there being discussion about the police and JS at about that time. 215 JH gave evidence that she left home when she was 19.245 This would place that move in very late 1984 or 1985. JH gave the following evidence about something Mr Doug Hallett said to her:246 Q I want to ask you about [JS]. Has [JS] ever told you that [the accused] did something sexual to her as a child. A No, [JS] didn’t but Doug did. Q [JS] didn’t but Doug did. are you talking about. A Mr Hallett, [SDH] - the father of her boys. Q What did Mr Hallett tell you about [JS]. A He comes into the door and he said - it was like he was excited. He said ‘I’ve caught him, I’ve finally caught him’. He said ‘I’ve caught him munching out on [JS]’. Q When did Doug tell you that. A When we were living in Snowtown. I wasn’t at home, I was living at - I don’t remember the street. Q When the family was living at Snowtown. Q They were living at a different farm. HIS HONOUR Q Was this after you’d moved out of home. A Yes. 216 The above evidence is also consistent with there being some discussion within the family about something Mr Doug Hallett claimed to have seen as, if the evidence of JH is accepted, it might be thought unlikely that Mr Doug Hallett only said something to JH. It must be noted that JH’s evidence is consistent with Mr Doug Hallett telling her about an act of cunnilingus, not touching of the type Mr Doug Hallett described in his evidence. That is a prior inconsistent statement by Mr Doug Hallett which is relevant to his credibility and reliability. 245 T259.33–37. 246 T280.26–T281.4. -- 59 of 170 -- [2024] SADC 75 Kimber J 58 217 DG had left the family home by the time of the alleged incident involving JS, but her evidence is that there was discussion between the ‘sisters’. DG did not identify which sisters.247 218 Nothing that Mr Doug Hallett is alleged to have said to another witness about what he claims to have seen involving the accused and JS can be used as evidence of the truth. However, if it is accepted that in the 1980’s there was discussion within the family about what Mr Doug Hallett saw involving the accused and JS, then that is inconsistent with Mr Doug Hallett having invented, or imagined, what he says he saw since about the mid-1980’s. 219 If the above occurred before JS was 15 years of age, it must have been before about March 1986. It is an agreed fact that JS was enrolled at Snowtown Area School on 10 November 1981.248 That timing is consistent with CB’s evidence. 220 There is evidence which is potentially contrary to police being involved with JS before she left the family home. As set out above, JP mentioned a police officer by the name of Bronte Lamshed. It is an agreed fact that Mr Lamshed was a police officer in Snowtown between 1980 and 1984.249 It is also agreed that on several occasions and as part of his duties as a police officer, Mr Lamshed attended the accused’s residence at the Snowtown caravan park. None of Mr Lamshed’s attendances at that residence was related to any criminal investigation.250 Nevertheless, I do not doubt that any witness is truthful and reliable because of what has been agreed about Mr Lamshed. On the evidence of at least JP, CB and JH, any conversation in the family which might have been prompted by what Mr Doug Hallett claimed to have seen was after Mr Lamshed had left Snowtown. Further, and separately, the agreed fact about attendances by Mr Lamshed relates to attendances at ‘the residence at the Snowtown caravan park’.251 JP referred to going out to the ‘the farm’.252 If it was ‘the farm’, JP appears to be mistaken that Mr Lamshed attended. 221 Detective Carson gave evidence that the sexual assault section of SA Police had no record of any investigation involving the accused and JS.253 That does not cause me to doubt that any witness is truthful and reliable about contact with the police after what Mr Doug Hallett claimed to have seen. On the evidence, it may be that JS did not make an allegation to the police about the conduct of the accused and there is no evidence that JS had contact with the sexual assault section of SA Police. There is evidence that JS was influenced to say that it had been IW. Mr Doug Hallett said that the family, including JP, did not want to go to the police and that SW did not want to report it to the police because she did not want to lose 247 T117.32–T118.23. 248 Exhibit P4, Agreed Facts II, Agreed Fact 13(v). 249 Ibid Agreed Fact 4. 250 Ibid. 251 Ibid. 252 T416. 253 T24; T815–T816. -- 60 of 170 -- [2024] SADC 75 Kimber J 59 the accused.254 In my view, JS, JP and CB have not all invented or imagined that there was contact with the police at this time. I am satisfied that there was some contact and that the absence of a record is likely explained by JS not making, or not wanting to maintain, any allegation about the accused. That is likely because of a conversation with SW before the police became involved and possibly because of encouragement to say IW was responsible. An allegation about IW is unlikely to have caused an investigation by police in the local area nor by the sexual assault section. IW was deceased. 222 The agreed facts about Mr Lamshed do not undermine that there was contact with police. I am satisfied that contact was after he left Snowtown. Further, as I have said, the agreed fact is that he attended the caravan park which appears to be a different property to that at which members of the family had cause to speak to SW and the accused. 223 In a moment I will return to what Mr Doug Hallett said that he saw the accused do to JS. The evidence of JS about her memory 224 JS gave evidence that she had been involved in a car accident in 1990 and agreed that since that year she has had ‘a limited memory of [her] life before that car accident’.255 JS made reference to her memories pre-1990 being ‘more vague now’.256 JS agreed that in 2019 she had told police that her memory was ‘really poor’ from the car accident.257 At the same time, she claimed that her memories have become clearer as the years have gone on as she had given up alcohol.258 She said that her memory had been getting ‘stronger and stronger’ since giving up alcohol in 2017.259 225 JS had contact with police in 1998 but said that she had chosen not to proceed because, at least in part, her memory was ‘pretty crap’.260 I do not doubt that JS believes that her memory has improved over time, but on the evidence, and as a matter of common sense, I am unable to accept that the memory of JS has improved. This necessitates care in evaluating the evidence of JS. I will return to this. 226 I turn to some other aspects of the evidence of Mr Doug Hallett. 254 T717–T718. 255 T580.18–21. 256 T580.24. 257 T581.17–19. 258 T581.1–4. 259 T584.35–38. 260 T585.14. -- 61 of 170 -- [2024] SADC 75 Kimber J 60 The evidence of Mr Doug Hallett (continued) 227 At the time of giving evidence, Mr Doug Hallett was 75 years of age.261 He had a relationship with JS’s eldest sister, SDH. That relationship commenced when SDH was about 18 or 19 years of age. This places the commencement of that relationship in about the late 1970’s as SDH’s date of birth is 16 September 1960. 228 SDH and Mr Doug Hallett were in a relationship for about 12 or 13 years.262 Once the relationship commenced, and after SDH had moved out of home, the two of them would return to the family home where the accused lived. They would take their children once they were born. They would drink and, at least on occasions, stay overnight.263 229 Mr Doug Hallett gave evidence about a night when he, SDH and their children were at the family home at Snowtown. Mr Doug Hallett was sleeping in the loungeroom which he said was immediately adjacent to a large room within which more than one child had gone to bed. His boys were young. He said his boys were sleeping in the same room as the girls. Mr Doug Hallett gave evidence that during the night, he went to go to the toilet. In the course of doing so, he went to the bedroom next to the loungeroom. Mr Doug Hallett turned on the light to check on his children. Having done that, and at about the time that he was turning the light off, he saw the accused on the floor alongside one of the beds. He turned the light back on. When asked what the accused was doing, Mr Doug Hallett said ‘He had his fingers up (JS’s) vagina’.264 He said JS was ‘probably 14 or 15 at the oldest’.265 230 On returning to the loungeroom, Mr Doug Hallett said he woke SDH and told her what was happening and that he was going to the police the next day. However, Mr Doug Hallett told me that the next day, the accused’s family did not want to go to the police and he could not recall the police attending.266 I have set out that I am satisfied there was contact with the police. In my view, Mr Doug Hallett was either not present when that happened as he did not live at the home of the accused or he has forgotten, perhaps because any contact with police did not result in an allegation being made by JS about the accused. I am unable to say which it is. The evidence of SDH 231 I have summarised the evidence of SDH about what she says Mr Doug Hallett said about the accused being in the room of JS. SDH denies that Mr Doug Hallett referred to seeing JS being touched. SDH said that she could not recall JS or Mr Doug Hallett ever saying something about the behaviour of the 261 T710.16. 262 T711.1–2. 263 T713.37–T714.17. 264 T714.30. 265 T716.14. 266 T717.21–22. -- 62 of 170 -- [2024] SADC 75 Kimber J 61 accused. SDH also said that she spoke to JS but JS made no allegation about the accused. I will return to these matters. 232 As also earlier summarised, SDH also said that she was not aware of any reports to police about the accused and JS when she lived with her siblings and did not give evidence of any occasion that the police attended a house where the accused lived with a complainant. That said, she did not exclude the possibility. SDH said:267 Q Did they attend the house on any occasion, on business, police business, to speak to anyone in the house. A I don’t remember, I don’t remember them turning up. I can’t recall if they came out, I don’t, I don’t remember if they did. They might have done. 233 Obviously enough, the evidence of Mr Doug Hallett about waking SDH and for the reason that he gave is something one would expect SDH to remember if the evidence of Mr Doug Hallett is truthful and reliable. The evidence of SDH that she did not recall Mr Doug Hallett saying anything about the behaviour of the accused is difficult to reconcile with the evidence of Mr Doug Hallett in a way that means both are truthful and reliable. The evidence of SDH is also difficult to reconcile with the evidence of JS, LH, JP and CB about discussion within the family at that time. It is also not easy to reconcile with the evidence of SDH that she had cause to speak to JS in circumstances that gave JS an opportunity to make an allegation about the accused. It is more likely that SDH would do that because whatever she was told gave rise to a potential concern in her mind about the conduct of the accused towards JS. 234 I am satisfied that SDH was not truthful and not reliable about what she said Mr Doug Hallett said to her. I will say more about why I have reached that view later. A summary of some of the submissions of the accused about Counts 7 and 8 235 Beyond the differences in the evidence which already arise given the evidence summarised above, it is necessary to consider that JS has made prior inconsistent statements. 236 JS spoke to the police in 1998. JS did not allege that she had been the victim of sexual assault nor of seeing that happen to any other person.268 As for her evidence of acts which might have been consistent with sexual assaults of others, JS said in her evidence that the accused ‘would interfere with us’ when he came into the bedroom269 and that she saw the accused crouching over one of the other beds. She referred to CB or MW and said she could not recall much about JP.270 267 T874.32–36. 268 T583.3–9. 269 T562.27. 270 T574.14–15. -- 63 of 170 -- [2024] SADC 75 Kimber J 62 JS said that she did not see exactly what the accused was doing but said ‘I did see hands on my sisters’.271 237 JS said that she did not mention abuse of her in 1998 as she had already spoken up but had not been listened to. JS said:272 Q And you agreed with her that you hadn’t mentioned the sexual abuse that you suffered at [the accused’s] hands in that statement. A Yes. Q Is there a reason why you didn’t mention that in that statement. A Because I’ve spoken out before. Honestly, and no-one listens. It’s just so hard to keep going on a merry-go-round. Q When had you spoken out before 1998. A I’ve spoken to police and things like that when I was a child. Even tried to ring Lifeline and got accused of prankster calls and things like that. People don’t listen. Q You told his Honour, when you were answering some of my questions earlier today, that there was an occasion when you went to the Snowtown Police Station. A Yes. Q Are you referring to that, or another occasion when you had - A There was a few occasions. Things just seemed to disappear and get swept under the carpet. Q How old were you when you rang Lifeline. A I was young, again I do remember doing that at the Davidson house. I’m guessing, I was probably only about 12. 11, 12, 13. Q What was the topic, or the topics that you’d tried to speak - A Abuse at home. Q What was the response that you got. A They didn’t take lightly to prank calls. Q How did the call end. A Sorry? Q How did the call end. A They hung up. 271 T574.19–20. 272 T600.9–T601.5. -- 64 of 170 -- [2024] SADC 75 Kimber J 63 238 The failure to mention in 1998 the sexual abuse of herself is obviously important in evaluating the credibility and reliability of JS. I have earlier referred to the absence of records of Lifeline in the context of significant forensic disadvantage to the accused. 239 JS did not mention that Mr Doug Hallett might have witnessed seeing something happen to her until a statement given in 2020. For reasons to be given, I accept the evidence of Mr Doug Hallett and so the failure of JS to mention this is not a matter of particular significance in evaluating the evidence of JS. 240 In an inconsistency which is significant, JS gave evidence that Mr Doug Hallett had entered her room twice when she woke up.273 JS said the other occasion was at the ‘Darryl Davidson house’ and involved the accused licking her vagina.274 Mr Doug Hallett only gave evidence of one occasion. If there had been two, I expect that Mr Doug Hallett might have recalled that given the certainty he expressed about the one occasion about which he did give evidence. That JS gave evidence of two occasions and Mr Doug Hallett only one is an illustration of how a person might be unreliable about an event which occurred a long time ago. This is not to overlook that the credibility of both witnesses is in dispute. 241 JS agreed that Mr Doug Hallett entering her room on two occasions was something that she had said for the first time in her evidence. JS said:275 Q Do you understand I’m suggesting that that’s something new you’ve said today. A Yes, I do understand that. Q And the other new thing today is you’re saying it happened twice. A Correct, yes. Q How do you explain that difference today. A I do apologise, but my memory does get a bit heightened, and I do believe under these circumstances it has gone a bit stronger as well. Q A bit stronger while in court. A Without, throughout this whole process. And my extensive counselling looks at everything else like that. I speak to my counsellor and therapist every day. 242 Given the evidence immediately above, I am not able to find that there were two occasions that Mr Doug Hallett saw the accused touching JS. 243 The accused also directed attention to what JS had said about the accused’s use of a firearm at different times. While some of the evidence of JS about the 273 T575.4–6; T574.30–31. 274 T574.30–T576.23. 275 T595.15–28. -- 65 of 170 -- [2024] SADC 75 Kimber J 64 accused using a firearm did not involve JS recalling every detail of what had occurred,276 JS did not express any doubt that the accused had used a firearm in a threatening way when the children were lined up.277 In cross-examination, JS said:278 Q That second statement, so May 2017, that was the first time you mentioned anything about a firearm incident, wasn’t it. A Correct. Q You told police at that time ‘I have a vague memory of a firearm incident from my childhood. I cannot describe my memory of this incident, where it occurred or when it occurred’. A Correct. 244 In my view, the significance of any inconsistency about the use of a firearm is very limited in evaluating the evidence of JS about sexual abuse of her. In any event, in evidence, JS had said she could not recall every detail. This is not to overlook that some additional detail was given in evidence. 245 As for the evidence of JS that her memory of the gun incident had improved,279 I cannot accept that. Nevertheless, I reject that might have been an invention by JS. I consider that JS believes her memory had improved and I do not consider that her belief about that sheds any light on her credibility and reliability about having been subjected to sexual abuse. 246 JS agreed that she had said in 2019 that ‘I think I was [first] sexually abused by [the accused] before my ninth birthday but just have no memory of it occurring’.280 In my view, that statement does not impact adversely upon the credibility and reliability of JS. It is appropriate for a witness to say in a statement that they believe something occurred if they make clear that they have no memory of it. That a witness makes that concession might reflect well on their honesty. 247 An aspect of the evidence of JS about meeting her sisters in 1997 to talk about the accused was the following:281 Q That 1997 point in time, did you get together with your sisters to talk about going to court. A The only time I can recall getting together with my sisters is in the shearing shed. HIS HONOUR 276 T559.5–T561.10. 277 Ibid. 278 T587.15–23. 279 T587.27–29. 280 T592.31–34. 281 T591.27–T598.11. -- 66 of 170 -- [2024] SADC 75 Kimber J 65 Q At [DG’s] house. A Correct. XXN Q Did you talk in the shearing shed that time about going to court and that we wanted to put [the accused] in gaol for what he did to us. A We wanted to go to court. Q Did you want to put him in gaol. A We wanted to go to court. Q I suggest you said to police in February 2019 ‘We all met up and talked about going to court and that we wanted to put [the accused] in gaol for what he did to us’. A I agree. Q Is that how you felt. A I’m confused what you are trying to put across. Q Back in 1997, did you feel that you wanted [the accused] to go to gaol. A Yes. 248 In my view, any difference between a desire to see the accused go to court or to gaol is of no moment in assessing the credibility and reliability of the evidence of the alleged sexual acts towards JS. In my view, that JS wanted the accused to go to gaol is not inconsistent with her being truthful and reliable about what she says the accused did of a sexual nature. Further discussion 249 JS gave evidence in a down to earth way. There was nothing in the way in which she gave evidence that caused me to doubt that she genuinely believes in the accuracy of her evidence about the accused. As with all complainants, it is necessary to carefully consider the risks of assumption, reconstruction, contamination and invention. 250 There is evidence JS is aware of other complainants having made allegations of having been sexually assaulted by the accused.282 While I reject JS might have colluded, bearing in mind: that JS was a child; the passage of time; and that JS has some awareness of allegations of sexual acts by the accused towards others, the risk of innocent reconstruction must not be lightly dismissed. 251 On at least some occasions of unlawful sexual acts, JS had been drinking before going to bed. She had also been asleep immediately before unlawful sexual 282 See for example T578–T580; T585–T587; T592. -- 67 of 170 -- [2024] SADC 75 Kimber J 66 conduct. Both matters can give rise to a risk of unreliability. As I have already said, I cannot accept the evidence of JS that she believes her memory has improved. I proceed on the basis that what can occur is that a witness might be convinced that a memory is genuine when it is not. 252 As set out above, JS did not mention being sexually assaulted and that being witnessed by Mr Doug Hallett until she gave a statement in November 2020. This is despite having given at least two statements to the police before that time. JS agreed she had not mentioned being sexually abused by the accused when she gave a statement in 1998. That said, I found her response to the failure to mention abuse of her in the statement in 1998 convincing. That is, that she had ‘spoken out before’.283 I accept the evidence of JS that both her mother and the accused told her that she would not see her sisters again.284 I reject that JS might have invented or imagined her evidence about that. Given the evidence of JH, LH, JP and CB, I have no doubt that an allegation of sexual conduct of the accused towards JS was raised when JS was a child. It is not surprising that JS felt in 1998 that she had not been listened to. I accept her evidence that efforts were made to have her not implicate the accused. 253 In the case of JS, there were specific aspects of her evidence which caused me to conclude she was not looking to embellish her account. I found the absence of embellishment reassuring in evaluating both her honesty and reliability. For example, when asked about the frequency of the accused being physically violent, she said: A I can’t say positively for sure coz that wouldn’t be right but it did seem to be fairly regularly.285 254 When giving evidence of the accused being at the beds of her sisters, she did not claim that she could see exactly what was taking place. She also did not take the opportunity to speak of seeing conduct towards any more than two of her sisters.286 The approach of JS in these respects was consistent with her only wishing to give evidence of what she believed to be accurate. 255 There were specific aspects of her account of the sexual abuse which struck me as things unlikely to have been invented or imagined. In particular, the way she said that she felt and why she did not speak to anyone about what was happening at the time. She said: 287 Q. At any stage did you make a noise or say anything. A. I think I just froze. 283 T600.15. 284 T577.24–25. 285 T556.3–4. 286 T574. 287 T565.21–38. -- 68 of 170 -- [2024] SADC 75 Kimber J 67 Q. How did the incident end. A. I don’t remember. I think I just tried to just shut myself down as best I could. Q. What state were you in emotionally after it had ended. A. Very upset. I do believe I just - I know I just cried. Just curled up and cried. Q. Did you speak to anyone about what had happened. A. No. Q. Why not. A. It’s embarrassing. Q. Did you have any thought about what would happen if you did speak to someone. A. I’d just get in trouble. Q. With whom would you get in trouble. A. Mum and [the accused]. I wouldn’t dare say anything to my sisters. 256 Those observations made, there are reasons to be cautious beyond the passage of time and risks identified above. 257 As I have said, I am unable to accept that her memory has improved over time. I cannot discount that the memory of JS is not always accurate for the detail of events as a child, perhaps because of the accident in 1990, her consumption of alcohol, her age at the time of the alleged events, the passage of time or some other reason. That said, while these things are all relevant to the reliability of memory, it is not obvious to me that they might cause JS to be unreliable about being sexually assaulted in ways within the particulars of Count 7 on at least two occasions. Satisfaction beyond a reasonable doubt of neither Count 7 or Count 8 does not require me to find everything JS said in evidence about sexual abuse to be reliable. 258 The evidence of JS has significant differences to that of Mr Doug Hallett. There are differences in: the number of times Mr Doug Hallett saw something; the sexual act that he saw; whether there was a physical altercation with the accused; and what occurred with respect to the police. 259 Mr Doug Hallett impressed me during his evidence. His evidence had a distinct ring of truth. It is unlikely that he has imagined what he says that he saw. I reject that he might have imagined it. I reject that Mr Doug Hallett might have lied in his evidence. I am satisfied that he was shocked by what he saw. That something occurred involving JS which was seen by him is consistent with that possibility being discussed in the family at the time. I am satisfied that what happened was a significant event and it has stuck in his mind, albeit that his memory may not be perfect in every respect. That Mr Doug Hallett saw something -- 69 of 170 -- [2024] SADC 75 Kimber J 68 which concerned him involving the accused and JS is not only supported by JS. The evidence of JH, LH, JP and CB is consistent with something being raised about conduct towards JS. That is, the fact that Mr Doug Hallett spoke to someone is consistent with him having seen something which concerned him. I recognise that there are some differences in the evidence about what occurred, but what is common is that Mr Doug Hallett raised something that was of sufficient concern to be discussed in the family. 260 I cannot accept the evidence of JS that Mr Doug Hallett saw something on two occasions. JS raised that for the first time in evidence. Had that happened, I am satisfied beyond a reasonable doubt that Mr Doug Hallett would have recalled that. 261 In my view, the evidence of SDH and Mr Doug Hallett about what occurred cannot be reconciled with both witnesses being truthful and reliable. I reject the evidence of SDH that Mr Doug Hallett did not say anything more than he had seen the accused in the room of JS. That something more substantial was alleged at that time is consistent with the evidence of JS, CB, LH, JP and JH. I reject that SDH may have forgotten what Mr Doug Hallett told her. SDH was an adult at the time. I am satisfied Mr Doug Hallett told her that her step-father had been seen sexually assaulting her younger sister in some way. That allegation is not one likely forgotten. That SDH was told something about a sexual assault is consistent with the fact that she then spoke to JS. I find that SDH lied in her evidence about not recalling that Mr Doug Hallett said that he had seen the accused assaulting JS in some way. It may be that SDH was dishonest about what happened in the 1980’s as she wishes to continue to enjoy a close relationship with the accused, but I need not identify the motive. 262 That SDH has lied about what Mr Doug Hallett told her in the 1980’s provides reason to be cautious about other aspects of her evidence which are inconsistent with the evidence of other members of the family. 263 It may be that SDH spoke to JS, but I am unsure if the evidence of SDH to the effect that JS made no allegation about the accused was honest and reliable. While there is reason to doubt SDH, the evidence of other witnesses is consistent with JS being encouraged not to make an allegation about the accused. It is possible that SDH spoke to JS after she had been encouraged not to make an allegation. If JS did make an inconsistent statement to SDH, it does not impact adversely on her credibility and reliability as I accept the evidence of Mr Doug Hallett about him seeing the accused sexually assaulting JS, and I accept the evidence that JS was encouraged not to tell the truth. 264 I accept Mr Doug Hallett’s evidence of there being some family discussion the following day. The fact of there being some discussion is consistent with the evidence of other witnesses, albeit that there are some significant differences in the evidence about what then occurred. I have set out earlier how differences in evidence about the involvement of police are explained. The differences in the -- 70 of 170 -- [2024] SADC 75 Kimber J 69 evidence, not just those with respect to the involvement of police, do not cause me to doubt the evidence of Mr Doug Hallett about what he saw. 265 There are significant differences in the evidence of JS and Mr Doug Hallett about the single occasion mentioned by Mr Doug Hallett on which he observed the accused abusing JS. Nevertheless, what is common to the evidence of both is that the accused was caught while touching JS in a sexual way. 266 As I have said, contrary to the evidence of JS, Mr Doug Hallett told me of seeing the accused on just one occasion in JS’s room and engaged in sexual conduct. I will not overlook JS being unreliable about it occurring on two occasions. That is not the only important difference with the account of JS compared to that of Mr Doug Hallett. Mr Doug Hallett also did not describe any yelling, or physical altercation with the accused. JS’s evidence was to the contrary. I am unable to reject that aspect of Mr Doug Hallett’s evidence. 267 Mr Doug Hallett’s evidence was of observations which were unexpected; late at night; very brief; and in what may have been poor lighting. Nevertheless, I reject that he might be mistaken about seeing the accused touching JS for those reasons. Firstly, that he did interrupt inappropriate conduct is supported by the evidence of JS. Secondly, while I recognise that a person can become convinced over time that their memory is reliable and convinced that they did not make a mistake about what they saw, what he described in his evidence left me with the distinct impression that Mr Doug Hallett had seen enough to make a reliable observation of at least a sexual touching which was obviously inappropriate. 268 Mr Doug Hallett did not give evidence of seeing an act of cunnilingus. As set out above, JH gave evidence consistent with Mr Doug Hallett telling her that act was seen by him. That out of court statement is not evidence of the truth of what was said. It is an inconsistent statement relevant to credibility and reliability. Given that out of court statement; the passage of time; and that JS gave evidence of Mr Doug Hallett interrupting an act of cunnilingus, I have carefully considered whether I can make any finding that Mr Doug Hallett saw any sexual act. I am unable to be certain whether Mr Doug Hallett saw an act of cunnilingus or a touching of the vagina with the hand as he said in evidence. Nevertheless, what is common to both the evidence of JS and Mr Doug Hallett is that Mr Doug Hallett interrupted what was a sexual touching. Mr Doug Hallett’s evidence was of a touching of the vagina. JS recalled touching ‘mainly on my breasts and waist’. What Mr Doug Hallett described was not consistent with a touching on the upper part of the body. There is a difference between the ‘waist’ and the vagina, but I accept beyond a reasonable doubt the evidence of Mr Doug Hallett that there was touching of the vagina. That JS does not recall the precise act which was occurring is likely due her memory being that the accused touched her in a sexual way on more than one occasion. Given that, it is not surprising that she cannot accurately recall precisely what was occurring on this occasion. -- 71 of 170 -- [2024] SADC 75 Kimber J 70 269 I have no doubt that Mr Doug Hallett was both credible and reliable about seeing the accused touching the vagina of JS in some way that night and in her bedroom. I have no doubt that was a sexual act which was indecent. I am satisfied beyond a reasonable doubt that he saw that only once. I am satisfied beyond a reasonable doubt that had it occurred more than once, he would have recalled it given the way that he reacted. 270 The prosecution has proven Count 8 beyond a reasonable doubt. In reaching that verdict, I have not used in any way the evidence of any other complainant about the sexual abuse of them to assist the credibility or reliability of JS. I have only had regard to that part of the evidence of JS about sexual abuse of her by the accused which she said occurred before Count 8 and only to place her evidence of Count 8 in its proper context. More specifically, evidence from JS of sexual acts before Count 8 might shed light on why JS submitted to Count 8 and why the accused might have believed he commit that act without complaint. There was no dispute that evidence was admissible pursuant to s 34P(2)(a) of the Evidence Act 1929 (SA). In evaluating Count 8, I have not used the evidence of JS about other sexual abuse of her by the accused to suggest that the accused is a bad person or more likely to have committed Count 8.288 271 Mr Doug Hallett gave evidence of a single unlawful sexual act involving JS. Proof beyond a reasonable doubt of Count 8 does not establish Count 7. To establish Count 7, I must be satisfied beyond a reasonable doubt of more than one unlawful sexual act within the particulars. This requires me to accept the evidence of JS about that beyond a reasonable doubt, at least to the extent that there was at least one other occasion of an unlawful sexual act within the particulars other than the occasion the subject of Count 8. 272 I will return to Count 7 later. DG–Count 1 273 It is convenient at this point to deal with the evidence of DG about the alleged unlawful sexual conduct by the accused with her. Background 274 DG was born on 2 August 1962. She is the second eldest of the children of SW. Her father is IW.289 DG told me she had been sexually abused by her late father. This was before the accused commenced any relationship with SW. DG’s evidence was that over about six months before the death of IW, he would come into her bedroom, place his hands under the covers and tell her to be quiet.290 DG said IW would be erect, would touch her, lie on top of her and masturbate on her.291 288 Evidence Act 1929 (SA) s 34P(1). 289 T83.26. 290 T152–T153. 291 T155–T156. -- 72 of 170 -- [2024] SADC 75 Kimber J 71 275 DG said she was ‘pretty sure’ she had not been touched in a sexual way by Mr G.292 There is no dispute Mr G was a person who knew SW and was a visitor to at least one house at which SW and DG lived before any relationship between SW and the accused commenced. Uncharged sexual conduct 276 DG gave evidence she was sexually assaulted by the accused on more than one occasion. 277 The uncharged sexual conduct DG alleged included that the accused would come into the bedroom while she was in bed. DG said this behaviour commenced when the family were living in Victoria. DG said:293 A He, he would put his hands under the sheets and just feeling around. I would push him away, but he - it didn’t escalate until we got to Kybunga, and that’s where it sort of escalated there. 278 DG said the accused touched near her vagina, but she would wriggle around and push his hand away.294 When asked what the accused would say, DG said:295 A Like it was things like, you know, like to ‘shhh’, be quiet, don’t say anything, and it’s like well you’re too scared, you’re just too scared, you don’t say anything. 279 DG said the family had moved from Victoria to South Australia by the time she was about 13 years of age. She said the sexual conduct towards her ‘sort of settled down a bit’,296 until the alleged occasion the subject of Count 1. DG said the incident the subject of that count occurred at Christmas and while the family were living in Kybunga in South Australia. Count 1 280 DG said she was waiting for the younger children to go to bed on Christmas Eve so that the things for Christmas could be put out. She said she was 14 years of age and she and the accused were in the loungeroom. SW and the accused had been drinking. She described the accused as ‘drunk’.297 281 DG said the accused made a comment about a Christmas card she had made for her mother. He then said, ‘Let a man kiss you’. He walked her back against the wall. DG said:298 292 T155.20–23. 293 T108.29–32. 294 T109.27–29. 295 T109.20–22. 296 T111.17. 297 T113. 298 T115.5–18. -- 73 of 170 -- [2024] SADC 75 Kimber J 72 A When he pushed me against the wall he was trying to kiss me. It’s like, then his hand goes down to my vagina and I’m trying to push him away as well as his hand and that’s when mum came in. Q You said his hand went towards your vagina, did it make contact with your body. A With my knickers, like pushed in towards my vagina, yes. Q Sorry. A My knickers went into my vagina. So I had my knickers on. Q How was he pushing them in towards your vagina. A With his fingers. Q What were you wearing apart from the knickers. A I was wearing a pyjamas, yes. 282 It is this alleged touching of her vagina over her underwear which is the conduct the subject of Count 1. 283 DG said that this incident was interrupted by her mother coming into the room and asking what was going on. The accused told SW he was just trying to give her a kiss for a Christmas card she had made.299 284 DG told me she did not tell her mother what had occurred. Her evidence was she was crying and said she ‘was scared because [IW] had molested her and she did not like it’.300 DG said the accused never touched her in a sexual way again.301 DG left home at about 15 or 15 and a half years of age.302 That would have been in late 1977 or 1978. Use of DG’s evidence of uncharged sexual conduct 285 It is convenient to consider at this point whether DG’s evidence of uncharged sexual conduct by the accused, all of which is alleged to have occurred before the occasion the subject of Count 1, has any permissible use in evaluating her evidence of the conduct the subject of Count 1. 286 If accepted, the uncharged sexual conduct towards DG may shed light on why the accused felt able to commit the conduct the subject of Count 1; why the accused might have believed DG would submit to the conduct the subject of Count 1 without resistance or complaint; why DG might have submitted to the conduct the subject of Count 1 and did not complain; and may explain why DG did not disclose the conduct the subject of Count 1 to her mother despite DG saying that her mother had interrupted what was happening. I am satisfied these uses of 299 T112.2. 300 T117.6–7. 301 T120.11–13. 302 T118.30. -- 74 of 170 -- [2024] SADC 75 Kimber J 73 the evidence of uncharged sexual conduct towards DG substantially outweigh any prejudicial effect it may have upon the accused303 and can be kept sufficiently separate and distinct from the impermissible use that the accused is a bad person and is more likely to have committed Count 1 because of the uncharged sexual acts.304 A summary of the submissions of the accused 287 DG gave a statement to police in 1998. In that statement DG did not allege having been touched in sexual way by the accused. She said that she was ashamed.305 DG said that she was doing her best in 1998 to recall what had happened.306 288 Both before and after the giving of the statement in 1998 and before the making of an allegation consistent with Count 1, there is no dispute it is possible that she learned of allegations made by one or more sibling. While DG said that no specifics were discussed and no details were given,307 I am unable to exclude that DG was aware of at least some of what her siblings alleged before she first made any allegation of a sexual nature against the accused. 289 Contrary to the submission of the accused, I do not doubt DG because she said she had not attended a group meeting with Detective Carson.308 That evidence of DG was about a meeting at a police station, not elsewhere. If DG ever met with Detective Carson at a police station with other complainants, it is not unlikely that she would forget due to the passage of time. 290 The accused submitted that DG might be doubted as she gave evidence of recalling some memories as a result of psychological treatment. DG said:309 Q I think you said a moment ago that you have some memories that have come back to you. A Yes. Q How did you say you have recalled some memories. A I have had some psychology appointments and, yeah, just being able to recall a few things through some help, medical help, so with psychology. Sometimes you just try to block it out and then when you block out incidences [sic] because they are traumatic then you don’t want to acknowledge them but when you start to acknowledge that it’s the process of moving forward, then it seems [sic] to recall specifics. 303 Evidence Act 1929 (SA) s 34P(2)(a). See footnote [362] below. 304 Evidence Act 1929 (SA) s 34P(1). 305 T149–T151. 306 T160. 307 T163.29; T164.33. 308 T165.35. 309 T160.22–33. -- 75 of 170 -- [2024] SADC 75 Kimber J 74 291 The accused also directed attention to differences in the evidence of DG and other witnesses about what may be described as matters of background. 292 It was submitted DG might be doubted as at one point she said that she had not mentioned the detail of sexual abuse of her at the meeting in 1998310 but later said that she had given detail.311 I do not believe that DG was inconsistent about that. The evidence of DG was that the topic was discussed but no details given. 293 The accused submitted that DG had been inconsistent about matters other than sexual abuse. Attention was directed to evidence given by DG that the firearm had been damaged after being used to threaten while DG had said in 1998 that she could not recall what had been done with the firearm.312 It is natural that a person might not relate the same incident in the same way every time, particularly when the incident occurred many years ago. Further, the possibility of the evidence of the accused being discussed since 1998 gives rise to the possibility of the memory of DG being refreshed. I reject that is an inconsistency of significance in evaluating the evidence of DG about her having been sexually abused. Whatever the explanation for the difference in evidence about the use of a firearm, that is very different to DG inventing or imagining that she was the subject of sexual abuse, including on an occasion interrupted by the presence of her mother. 294 The accused contrasted the evidence of DG about criminal injuries compensation with that of other witnesses. DG gave the following evidence in cross-examination:313 Q Something I’m wondering, do you have a plan or have you thought about applying for victim of crime compensation, do you know what that is. A We got told early on about it but I haven’t known - I haven’t followed anything up in regards to that. 295 JH gave evidence about going to a lawyer with DG and JP.314 JP gave evidence to the same effect, but arguably expressed some uncertainty about whether DG was involved.315 296 I reject that this evidence might suggest that DG is unreliable or not credible about what she says happened to her at the hands of the accused. The evidence of JP and JH is not necessarily inconsistent with that of DG. DG said that she had not ‘followed anything up’. She did not say she had not gone to a lawyer at some time in the past. That there had been a conversation(s) about the topic and a meeting with a police officer and/or a lawyer, I do not consider reveals DG’s evidence about compensation might be unreliable or untruthful. In any event, the real issue is not whether compensation has been explored, or ‘followed up’, nor 310 T128. 311 T163–T168. 312 T159–T160. 313 T161.29–33. 314 T319–T320. 315 T399–T400. -- 76 of 170 -- [2024] SADC 75 Kimber J 75 the credibility or reliability of DG on that topic. The issue is credibility and reliability about the sexual abuse. Further discussion 297 DG is a mature woman who gave evidence in a calm and thoughtful way. There was nothing in the way she gave her evidence which caused me to doubt her. The way that DG gave evidence left me in no doubt that she believed in the accuracy of what she told me. 298 There were specific aspects of DG’s evidence which I am satisfied were truthful and reliable. An aspect of her evidence was how the sexual activity began. She described it as the accused being ‘touchy-feely’ and that it was ‘nothing hugely, you know to start with’.316 This was not a description which struck me as one which might have been invented, imagined or otherwise unreliable. I reject those possibilities. It was an aspect of DG’s account about the behaviour of the accused that had a distinct ring of truth. 299 An aspect of her account of the conduct the subject of Count 1 was the touching ‘felt like a lifetime but was reasonably short’.317 That detail also struck me as a truthful and reliable account of how DG recalled an incident which had taken place. 300 The response of the accused when SW came into the room also struck me as a truthful and reliable memory. According to DG, the accused said: ‘I don’t know what’s wrong with her… I was just trying to give her a kiss for the lovely card that she had given you, I don’t know what’s wrong with her’,318 In my view, that evidence is consistent with what the accused may have said if he believed that SW might have seen something of possible concern. I reject DG invented or imagined that detail. 301 I also accept the evidence of DG that she blamed her emotional state on the conduct of IW while in the presence of her mother and the accused immediately after the act the subject of Count 1.319 I reject that DG invented or imagined that detail. It was an aspect of DG’s account about the behaviour of the accused that had a distinct ring of truth. 302 DG impressed me as someone careful not to blame the accused for conduct unless she was certain the conduct had occurred and was not innocent. DG did not endeavour to implicate the accused as being responsible for inappropriate conduct unless she was sure that it had occurred. DG was intent on being accurate in her evidence. I have in mind her evidence of conduct which made her feel 316 T108.17–18. 317 T111.36. 318 T112.1–3. 319 T117.4–7. -- 77 of 170 -- [2024] SADC 75 Kimber J 76 uncomfortable, but which she did not claim to be confident about being intentional, or indecent. An aspect of her evidence was the following:320 Q Was there any other touching, whether before or after that incident, that made you feel uncomfortable that you haven’t described. A Yes. There was [sic] incidents where we - it was usually when other people were around, there was a bit of, you know, jesting, playing, mucking about, and then you know there would be a grab where he would touch our breast or grab and go too low and, you know, touch below the waist and around the vagina area, but it was above the clothes and it was always when - there was [sic] usually other people around - but it just, it did make me feel uncomfortable because of what had happened previously for me, and whether it was intentional or not I wasn’t to know, but it did make me feel uncomfortable. Q You said ‘he’ who were you talking about. A Sorry, [the accused]. Q Was that before or after the incident on Christmas Eve or both. A That was after. 303 Having given evidence about a number of sexual acts which preceded the alleged occasion at Christmas, I was impressed that DG did not characterise conduct as intentional or indecent unless she was certain. I pause to observe that given DG’s uncertainty about whether the above conduct was intentional and/or indecent, I have not treated the evidence as discreditable conduct. 304 I found DG’s explanations for why she did not complain about the accused coming into her room and touching her to be compelling. I reject that it might have been an explanation invented, reconstructed or imagined. She said:321 A I was scared. Q Scared of what. A Of the repercussions. I was scared because I didn’t want to get sent away. I was just scared because once again previously I had been assaulted, so I just - I tend to freeze up and just - just scared. Just you don’t say anything. It is just looking back now it’s like why didn’t I say something but you don’t. Q What do you mean by scared of the repercussions. A I didn’t want to be sent away anywhere. I didn’t want to get a hiding. I didn’t want to be accused of being, you know, lying. I didn’t, you know, want to be, you know, no-one to believe me. Q What do you mean by ‘sent away’. 320 T120.14–32. 321 T130.32–T132.6. -- 78 of 170 -- [2024] SADC 75 Kimber J 77 A Over time, you know, you get told things that, you know, you will get sent away. I know he sent Susan and [DA] away. It was just reinforcement that it is control. It is, you know, it’s what they do, they control you. That’s what he did, controlled me. So, you just, it is a survival mode I think. That’s, you know, what I’m putting it down to. I don’t know why I didn’t. It was just too scary. Q You said you were told things about being sent away. Who told you those things. A [The accused] said he would send us away. Q What reasoning then did he give saying he would send you away. A Because we were liars and liars get sent away. Q Did he say that once or more than once. A Lots of times. HIS HONOUR Q What was the context in which he said that. A The contents? Q He was calling you liars. Was he saying that you would lie about something in particular or can’t you say. A Yeah, anything. It’s like, you know, there was [sic] lots of incidences. Not always when he’s drunk. Most times when he was sober he was a nice person and, you know, he taught me lots of things but it was like a Jeckle [sic] and Hyde type of thing, you just didn’t know what was going to set him off. It could have been the fact that you didn’t pick up that piece of paper or you didn’t clean the floor good enough. You know, you didn’t hang the washing out right. It could be a matter of all sorts of stuff. If mum said ‘Oh can you go do the dishes?’, and you didn’t do the dishes right or you left the dishes on the cupboard and not put them away, lots of those things could set him off. So, yeah, so that sort of stuff and it was like walking on egg shells. As a child you sort of don’t know what’s right. You just know that what’s going on is wrong. 305 I have the same view about DG’s evidence about why she was part of these proceedings. The evidence of DG about why she had chosen to participate in the proceedings impressed me as the evidence of a person who was not motivated to make a false allegation and who believed that giving evidence was simply the right thing to do. She said:322 A … So, you know, I’m going through this because I was a part of it. I would have quite easily have gone through my life leaving it be but it’s something that my siblings have to do and it is something that I was a part of which is why I’m here because it has happened to me. So by doing this I will have closure regardless of any outcome because I have been heard and that’s all I’m after. 322 T141.4–11; T141.25–28. -- 79 of 170 -- [2024] SADC 75 Kimber J 78 … A Yes, I would not have brought it up by myself. I would not. I would have just left it be but I’m here because I am part of the family, I am part of what happened whether it be minute or not and what happened was wrong. 306 It must not be overlooked there are reasons to be cautious before accepting DG’s evidence of Count 1. It was a very long time ago. The risk of reconstruction is real, even more so when DG was aware other members of the family had made similar allegations. 307 When she gave a statement to the police in 1998, DG did not allege she had been sexually assaulted or touched on the vagina.323 That inconsistency is significant and cannot be lightly dismissed. This is even more the case when DG knew that the other siblings had made allegations of sexual acts by the accused. The giving of that statement was much closer to the events in question. Nevertheless, I do not believe the inconsistency means that I might not accept her credibility or reliability about being sexually assaulted in the way she described in her evidence on the occasion the subject of Count 1.324 DG’s explanation that she was ‘ashamed’ is not unlikely given the nature of what she says the accused did. I accept that explanation. It is not uncommon that a person who has suffered sexual abuse as a child will not reveal it notwithstanding the opportunity to do so as an adult. 308 DG was sexually abused by IW. The risk that DG has imagined, or invented, what she says the accused did because of the conduct of IW must be excluded beyond a reasonable doubt. While DG describes aspects of the conduct of IW as different to that of the accused, common with the uncharged conduct of the accused is him entering her room at night and interfering with her while she was in bed. The risk of her deliberately or inadvertently attributing behaviour of IW to the accused must not be lightly dismissed. 309 I reject that DG was untruthful in any aspect of her evidence or has imagined what the accused did because of the conduct of IW. It is one thing to be the victim of sexual abuse by a person other than the accused. It is another thing to imagine that you were sexually abused by the accused because that had been done by someone else before. DG was a careful witness who gave evidence of more than one occasion of abuse by the accused at locations at which IW cannot have been present and when she was older than when in the care of IW. I reject that DG might have deliberately or innocently attributed the conduct of IW to the accused. 310 The conduct of IW towards DG also necessitates consideration of whether she might have misinterpreted the conduct the subject of Count 1 as she might have had a fear of being assaulted and sensitivity to being touched by an older man. I cannot find Count 1 proven unless the conduct occurred, it was deliberate and had 323 T149.21–25. 324 T151. -- 80 of 170 -- [2024] SADC 75 Kimber J 79 a sexual connotation. I must exclude the possibility DG might have misinterpreted what took place because of the conduct of IW or for that matter because of the uncharged sexual acts towards her by the accused. Having considered these matters, I reject them. At the time of the uncharged conduct DG was a much older child. At the time of Count 1, she was older again. The conduct the subject of Count 1 was different to that engaged in by IW given where it occurred. The evidence of Count 1 was of a distinct occasion, interrupted by SW. 311 For these reasons, I reject that DG has misinterpreted, or imagined, the conduct the subject of Count 1. Her evidence was of very deliberate touching of her vagina in particular circumstances. I accept her evidence about that as being both honest and reliable beyond a reasonable doubt. 312 I am satisfied beyond a reasonable doubt the accused touched the vagina of DG on the occasion which is the subject of Count 1; that DG was about 14 or 15 years of age; and that the act occurred in South Australia. I find the accused guilty of Count 1. I also accept beyond a reasonable doubt the evidence of DG that she was sexually abused on other occasions before Count 1. In finding these things proven beyond a reasonable doubt, I have not used in any way the evidence of any other complainant about being sexually abused by the accused to assist the credibility or reliability of DG. 313 I will discuss the evidence of other witnesses, before returning to whether I have used DG’s evidence of unlawful sexual conduct with her in evaluating any evidence of any remaining complainant. MW–Count 9 314 MW was born on 14 November 1973. Throughout her childhood, she regarded the accused as her father. Count 9 315 MW gave evidence that she was touched on the vagina by the accused on many occasions. She said she could not recall how many times. She estimated a couple of times a week.325 She said sometimes her sister JS would be in the room, sometimes not.326 An aspect of the evidence of JS was:327 Q What did you see of him in the room on occasions when he wasn’t touching you or wasn’t at your bed. A That same crouching over one of, over the top of one of the other beds, whether it be at [CB] or [MW] mostly, I cannot remember as much about [JP]. Q You said I think that he would be touching them. Did you ever actually see him making physical contact with your siblings in their beds. 325 T620.34–38. 326 T620.7. 327 T574.11–26. -- 81 of 170 -- [2024] SADC 75 Kimber J 80 A I didn’t see exactly what he was doing, but I did see hands on my sisters. Q Did you see what their state of clothing was for example. A We always normally just slept in clothes mainly. Q Sorry, on those occasions when he was touching their bodies. A They mostly wore clothes. 316 MW said her first memory was at the family home on Balaklava Road. She had been sleeping and the accused touched her vagina under her pyjamas. MW told me she did not say anything to the accused because she feared him hurting her.328 MW said that in 1998 she had said that she could hardly remember any of her childhood after that and that had been the truth when she said that. However, MW was adamant that the accused came into her room multiple times and touched her on the vagina.329 317 An occasion about which MW gave evidence was at one of the properties at which the family lived in the Mid North. She was not certain which property. MW said the accused was kneeling next to her bed touching her vagina. She said that touching came to an end when SW walked in and pulled him from the room.330 MW later said that she was not sure whether her vagina was being touched on this occasion.331 318 MW told me after this occasion, the accused engaged in the ‘same’ behaviour again.332 That is, he touched her vagina. She said it came to an end when she left home.333 MW was 16 years of age at that time.334 319 MW told me there was a single occasion of cunnilingus. She said it was at the Balaklava Road home. She was sleeping in what she described as a sunroom.335 She could not remember if other children slept there.336 MW told me immediately before this, she had been asleep.337 She said the accused ‘just did it and then left’.338 MW said that it made her feel disgusting and confused.339 She said she ‘just didn’t know why’.340 328 T618–T619. 329 T641.27–T642.12. 330 T624–T625. 331 T645.10–16. 332 T625.33–38. 333 T626.9. 334 T627.1–3. 335 T621.33–34. 336 T621.38. 337 T622.4–6. 338 T622.9. 339 T623.8. 340 T623.10. -- 82 of 170 -- [2024] SADC 75 Kimber J 81 Some aspects of the evidence of RH 320 The evidence of MW about being sexually abused by the accused finds some potential support in the evidence of RH. 321 RH gave evidence that he witnessed the accused at the bed of MW on more than one occasion. He said this occurred on at least one occasion that he was in the bed with MW. An aspect of RH’s evidence was:341 Q What did you see. A Him touching her. I could feel him touching her. Q Did you see where he touched her. A In the vagina area, around that area of the body (INDICATES). Q Did you hear any noises between anyone. A Could hear him breathing. Could always hear him breathing. Q Did you do anything when you were in the bed with [MW] and you saw this happen. A No. Q Why didn’t you do anything. A Because I was, like, nine years old. Q Do you remember how it ended, as in what happened after you saw this happen with [MW]. A Same way as it did every other time. The prick, he used to get up and just walk out. 322 RH said he recalled such a thing happening four times. He said he ‘would have been under the bed, in the bed’.342 323 I will discuss the evidence of RH in more detail later. For present purposes, I observe that MW did not give evidence about being assaulted when RH was in the bedroom, or bed. For that reason, I will approach whether Count 9 is proven beyond a reasonable doubt without using the evidence of RH to support the evidence of MW. A summary of the submissions of the accused 324 The accused directed attention to MW having given evidence that she suffered from ‘PTS [sic] these days’.343 I reject that MW might be doubted because of that evidence. There is no evidence, other than what might be inferred from what MW said about PTSD, that PTSD has an adverse impact upon memory. 341 T685.23–T686.1. 342 T686.8–29. 343 T641.34–35. -- 83 of 170 -- [2024] SADC 75 Kimber J 82 There is no evidence that PTSD might cause a person to either imagine, or lie, about events. 325 I have carefully considered what MW said about PTSD and what she said in 1998 about her memory which she said was true when she said it.344 326 Even assuming that PTSD might have an adverse impact upon memory, it is important that the obligation upon the prosecution is to prove beyond a reasonable doubt at least two occasions within the particulars. The obligation is not to prove beyond a reasonable doubt a specific occasion(s). The issue with respect to MW is not whether she might have misremembered, imagined, or lied about some of the occasions of sexual abuse by the accused about which she gave evidence. The issue is whether the evidence establishes beyond a reasonable doubt that she is credible and reliable about her vagina being touched at least twice by the accused when she was a child in the way she described. The evidence that she gave about PTSD and what was said in 1998 must be considered in the context of what she said about the accused touching her vagina multiple times. Her evidence that had occurred was emphatic. Ultimately, what MW said about PTSD has not caused me to doubt the credibility or reliability about whether she was sexually assaulted more than once in the way she described in evidence. It must be accepted that the occasion of cunnilingus was a single occasion, but there is no evidence that PTSD might cause a person to misremember, imagine or invent a single occasion such as that, let alone create, or lie, about having a memory of the surrounding detail. On the whole of the evidence of MW, I also reject that what MW said about PTSD might give rise to a doubt about the credibility or reliability of the evidence of MW about the single occasion of cunnilingus. 327 The accused directed attention to MW having agreed in evidence that she had said in 1998 she had been so impacted by the first occasion that sexual abuse occurred that she ‘can hardly remember any of [her] childhood after that’ and having said that statement was true.345 I reject that evidence might cause me to doubt the credibility or reliability of MW about sexual abuse by the accused. In my view, MW was not agreeing that any failure to recall her childhood related to having been sexually abused by the accused. In response to the suggestion that she might not have recalled anything after the first occasion, MW said: ‘I recall him coming into my room many times’,346 and that it ‘absolutely’ happened.347 As I have said, MW’s evidence that she had a genuine memory was emphatic. Further, MW later said that when speaking of difficulties about memories of her childhood she was referring to ‘[j]ust my ages and where we were living at the time’.348 I accept that evidence. It is hardly surprising that many years later she might have difficulty with her age at certain times and other dates. That is very different to MW not being able to accurately recall that she was the subject of sexual abuse 344 T641.27–T642.12. 345 T641.31–34. 346 T642.3. 347 T642.7–12. 348 T643. -- 84 of 170 -- [2024] SADC 75 Kimber J 83 more than once. As I have said, the real issues are whether MW has accurately recalled sexual abuse which satisfies the elements of the offence and is also credible about that. 328 The accused also directed attention to the evidence of MW that sometimes memories came into her head of things from her childhood. I reject that MW was describing memories which might not have been of real events. The evidence of MW was to the contrary:349 Q Have you had flashbacks about your childhood. A Yes. Q When you say or when I say flashback and you agree you have had them, what do you mean by a flashback. A A memory of something that had happened that I - Q Is that like thinking of something you didn’t realise you remembered. A No, it just come into my head, a memory. Q Is that how you recall things from your childhood by flashbacks. A Not always, no. 329 I am satisfied that MW was describing that things from her childhood would come into her head. I do not regard that as an indication of unreliable memory. Further, in any event, MW did not say that she had experienced ‘flashbacks’ of memories of sexual abuse. The evidence went no further than the passage extracted. 330 As set out earlier, MW said in evidence that on the occasion that her mother interrupted, her vagina was being touched. It was only when confronted with a prior inconsistent statement that she said that she was not sure her vagina had been touched at the point her mother entered the room. The evidence in cross-examination with respect to the prior inconsistent statement was as follows:350 Q You have given some evidence about a time that your mum, [SW], came into the room when [the accused] was next to your bed. A Yep. Q And you say that, I think you say he was about to or had just touched your vagina or what was happening when your mum walked in. A He was kneeled beside my bed. 349 T643.28–38. 350 T644.15–T645.16. -- 85 of 170 -- [2024] SADC 75 Kimber J 84 HIS HONOUR Q ‘He was kneeled beside my bed’. A Yep. XXN Q Was that all that was happening at the point when your mum walked in. A He was touching me. HIS HONOUR Q ‘He was touching me’. A Yes. XXN Q I think you mean he was touching your vagina, is that what your evidence is. A Yes. Q I suggest that when you spoke to police about it you said ‘He was either just about to or had just touched’, do you agree you said that before to police. HIS HONOUR Q [MW], Ms Abbey is just asking you whether you agree you said that to the police, that is that he was touching you or was about to touch you to the police. A Yes. Q Do you agree that you said that to the police. A Yes. XXN Q Are you saying now that your memory is different and that he was actually touching your vagina when your mum walked in. A He was at my bed. Q Are you now not sure or you are sure what he was doing with his hand. A I’m not sure. 331 Given that MW gave evidence of repeated touching of her vagina in very similar circumstances, this is not an inconsistency which causes me to doubt her credibility or reliability about having been sexually abused by the accused on more than one occasion. The prior statement was about a sexual incident. In the overall assessment of the key issue of the credibility and reliability of MW being touched on more than one occasion on the vagina, that she has described one occasion in -- 86 of 170 -- [2024] SADC 75 Kimber J 85 slightly different terms out of court when compared to her evidence is, in my view, not a matter of great significance. At best, it simply means that I might not find beyond a reasonable doubt that her vagina was touched on the specific occasion that her mother entered the bedroom. 332 Given that MW gave evidence of SW having intervened on one occasion, it is necessary to consider whether it is unlikely that the accused would offend when there was a risk of detection and whether it is unlikely SW might act in the way alleged by MW. I do not consider it unlikely that the accused would offend against MW when there was a risk of detection. Taking into account only the evidence of MW about being sexually abused, her evidence satisfies me that she did not invent or imagine repeated abuse. On the evidence of MW, I am satisfied the accused was prepared to take that risk. It is also not unlikely that SW might know, or suspect, abuse of MW but apparently do nothing beyond intervening on the subject occasion but otherwise leave MW at future risk of like behaviour. That SW might act in that way is consistent with the evidence of JS that after the incident involving Mr Doug Hallett, she was told that it was not the accused who was responsible and told, in effect, that the making of an allegation against the accused would separate the family. 333 I return to the submissions of the accused. 334 While giving evidence about the accused being violent to her in a non-sexual way, MW said the accused reacted to a comment she had made about a penny-farthing bicycle.351 MW agreed that in 1998, she had told the police her youngest brother had made the relevant comment.352 This incident as not related to sexual abuse and the inconsistency does not cause me to doubt the credibility or reliability of MW about that aspect of her evidence. 335 The accused submitted that care was needed with the evidence of MW because she had engaged in conversations and a messaging group with other complainants. I recognise that it cannot be excluded that those conversations might have gone beyond discussion of dates and background detail. Consistent with what I have set out earlier, the evidence of MW of sexual abuse of her must be evaluated on the basis that there is a real possibility that she knows of at least some of what has been alleged by other complainants, including some detail. As with the complainants (other than DA), that is an important matter in evaluating the credibility and reliability of MW. Nevertheless, I consider that it is one thing for MW to know of what has been alleged by others but another thing for her to decide to invent an allegation of sexual abuse herself. I also consider that it is also another thing to be so influenced by that knowledge to then imagine that she was repeatedly sexually abused over many years. 351 T613.2–6. 352 T646.9–13. -- 87 of 170 -- [2024] SADC 75 Kimber J 86 336 In so far as MW gave evidence of participating in a messaging group, MW said:353 Q Just on that topic of discussing things with your siblings, are you part of a messaging group with your siblings at the moment. A Yes. Q Has that been going on throughout the court case. A Yes. Q You looked a bit uncertain there. A Because I don’t really contribute much to that. Q You don’t contribute much. Do you contribute at all. A Yeah, I ask how everyone is. Q When did that group start, that group chat. A I’m not sure. Q Is it in a particular app. A I’m not sure. Q Do you have an iPhone or what sort of phone do you use. A IPhone. Q So is it just in a messaging app or is it WhatsApp. A It is just a message. Q Just a message. A I don’t know too much about phones. Q Do you know who was part of the group, who is using it. A No, not everyone. Q Not everyone. A No. Q So if not everyone can you mention any names that you have been messaging to in that group. A [DG], [CB,], [JS], that’s all I can remember. 353 T638.3–T639.25. -- 88 of 170 -- [2024] SADC 75 Kimber J 87 Q I missed that last bit. A That’s all I really know that’s in there. I don’t contribute much to that. Q Do you get the alerts come up on your phone and have a look at the message. A No, not all the time. Q Not all the time. A No. Q You have read some though. A Yes. HIS HONOUR: I think the answer was yes. XXN Q The messages that you have looked at, are they on the topic of the court case. A No. Q What are they about. A They’re mainly encouraging means or whatever you call them. Q Means. A Just encouraging, keep going, you know, support. Q All of your siblings that are involved in this trial are supportive of each other, aren’t they. A Yes. Q And encouraging each other to come to court. A Encouraging each other to be strong, not so much to come to court, no. Q So you said you hadn’t contributed much. Have you contributed at all. A Yes. Q What sorts of things have you said. A That I love them. I’m here for them. That’s about all. Q Are there some messages you say you haven’t read as part of that group. A Yeah, many. 337 As I accept the above evidence, that evidence does not give rise to the possibility of contamination. The above evidence is not that details of allegations -- 89 of 170 -- [2024] SADC 75 Kimber J 88 have been exchanged. This is not to say that I can discount the possibility of contamination based on the above evidence alone. As I have earlier observed, I am unable to exclude the possibility that MW knows at least some of the details of at least some other complaints. While there is no evidence that MW was involved in any discussion about what Mr Doug Hallett and JS said occurred in the 1980’s, for reasons already given, there were more than one relevant discussion commencing in 1997 or 1998 and many opportunities for discussions since that time, at least. 338 The accused also submitted that there might be a doubt about the credibility and/or reliability of MW because of evidence MW gave about having said that she did not know exactly when the occasion of cunnilingus took place. MW gave the following evidence:354 Q Did you sit down with your siblings at some point and try and nut things out about what had happened in your childhood. A No, not really. Q Dates for example of when things had happened. A I have probably asked them to help me with remembering how old I was at certain places that we lived at. Q In fact there was one occasion that you talked about where you say [the accused] licked your vagina. You have sat down with your sisters to try and work out when that was, haven’t you. A No. Q I suggest that you spoke to police in 1998, do you remember that. A Yes. Q You told police about an occasion when you say that [the accused] had licked your vagina, didn’t you. A Yes. Q You said ‘I don’t know exactly when it was’ and then you said ‘I have tried coming up with dates or times of the year since it all happened but I just can’t but my sisters have since sat down with me and tried to help me with dates or times of the year but I just can’t remember. A lot of things that happened before I was 16 is pretty well a blur’. A Some things are I expect, yes. Q There are a few things wrapped up in that. First of all did you say that, what I just said, to police. 354 T631.28–T632.24; T633.10–28. -- 90 of 170 -- [2024] SADC 75 Kimber J 89 A That I tried to come up - Q You sat down with your sisters and tried to work out when things happened and in particular this time when [the accused] licked your vagina. A I believe I have tried to come up with dates of where we were living and how old I was when we were living at those places. … Q ‘My sisters have since sat down with me and tried to help me with dates or times of the year but I just can’t remember. A lot of things that happened before I was 16 is pretty well a blur’, did you say that. A Yes. Q Was that true when you said it. A When I said that, yes. Q I suggest that when you said that you were talking about this occasion when you say [the accused] licked your vagina. A I’m not sure of that. Q Do you want to check your statement. You shook your head. A No. Q You don’t want to check your statement. A No. Q Are you accepting from me that in your statement you are talking about this occasion where you say [the accused] licked your vagina. A I’m not sure. 339 The accused submitted that the above evidence should cause me to have a doubt about the reliability of MW about the occasion of cunnilingus, and doubts more broadly, as she had referred to things being a blur before she was 16 and having sought assistance from her sisters. 340 I reject that MW sought assistance from any sister in order to confirm that sexual abuse had occurred or that any such conversation has caused her to give evidence of having been sexually abused which is not reliable or not credible. I do not interpret what MW said in the statement as her seeking confirmation from anyone else of an act of cunnilingus or any other sexual act. MW did not say that either in the statement to police nor in evidence. I am satisfied that what MW was seeking was assistance with where she lived at different times and her age at those times. That she might seek such assistance is unsurprising and I am satisfied that it does not reflect adversely on her credibility and/or reliability about having been sexually abused. It is not surprising that MW would have difficulty with where -- 91 of 170 -- [2024] SADC 75 Kimber J 90 she was living at different times. The evidence is consistent with the family having lived at many different places, sometimes for relatively short periods. For example, school records establish that MW was enrolled in three separate schools between 28 May 1979 and 10 November 1981 alone.355 The evidence of MW was that her first memory was of living at Hoyleton when she was about five years of age and she referred to living in as many as five different properties after that and before she left home at 16 years of age.356 341 The accused also submitted that MW having said that things were a ‘blur’ before she was 16 should cast a doubt on her credibility357 and reliability when she said in evidence that she was ‘probably around 13’ when the act of cunnilingus took place.358 In my view, MW did not say at any point that her memory of the act of cunnilingus was a ‘blur’. The passage in the statement given before trial related to not being able to recall dates and times of year. In the circumstances, for the reasons given, that is not surprising. Further discussion 342 MW was a very nervous and anxious witness. I did not form the impression that might have been because she was deliberately misleading me, or because she doubted the accuracy of her evidence about having been repeatedly sexually abused by the accused. I am satisfied her presentation reflected the significance of giving evidence and as she found the subject matter difficult to relate in an unfamiliar environment. MW was emotional throughout most of her evidence, including at times when relating the alleged sexual assaults. I formed the impression that emotion was genuine. I reject that emotion was feigned while giving evidence which MW knew to be false. I have earlier referred to MW being emphatic when pressed in cross-examination about whether she had a genuine memory of her vagina being touched by the accused after coming into her room.359 I have no doubt that emphatic evidence was because MW had no doubt about her belief that her evidence about that was the truth. 343 I have no doubt MW was an honest witness. I have no doubt that the real issue is her reliability. 344 There were specific aspects of MW’s evidence of sexual conduct by the accused which impressed me as evidence of events not invented or imagined. 345 When MW gave evidence of the incident in the sunroom, I formed the distinct impression she was relating a memory of an event which had occurred. The way she related the incident interrupted by her mother left me with the same impression. I have already observed that the conduct of SW in doing nothing more than MW related is consistent with other evidence. That MW had earlier said in a statement 355 Exhibit P4, Agreed Facts II, Agreed Fact 14(i)–(iii). 356 T609–T610. 357 T633.10–14. 358 T621.29. 359 T642.4–12. -- 92 of 170 -- [2024] SADC 75 Kimber J 91 that she could not recall whether the accused had touched her on that specific occasion has not caused me to doubt her reliability or honesty with respect to her vagina being touched more than once nor with respect to the act of cunnilingus. It has only caused me to doubt that there was a sexual touching on that occasion. 346 When MW told me how she felt while sexual acts were taking place, I also formed the view she was not relating something invented or imagined. I reject, for example, that her evidence of being ‘scared’ and that the act of cunnilingus made her feel disgusting and confused was anything other than a true memory of how she felt on more than one occasion about events which had occurred. 347 I have mentioned the evidence of RH above. I have not used it to support the evidence of MW. That MW did not give evidence of RH being present on any occasion does not cause me to doubt the credibility or reliability of MW about being sexually abused on more than one occasion. If RH was present, and his evidence was credible and reliable, reliance on that evidence would only support the evidence of MW, but I have not used RH’s evidence in that way. If the evidence of RH is not credible and reliable, there is no inconsistency with the evidence of MW. 348 I have not used the evidence of JS to the effect that she saw the accused crouching over the top of CB or MW. 360 While I accept that evidence, I have accepted the evidence of MW beyond a reasonable doubt about the accused touching her vagina on more than one occasion and performing cunnilingus on her without using that evidence to support the evidence of MW. Were I to use it, it would only further confirm a conclusion already reached for other reasons. 349 I am satisfied beyond a reasonable doubt the accused touched MW’s vagina on more than one occasion and committed an act of cunnilingus upon her. I am satisfied beyond a reasonable doubt those acts occurred in South Australia when she was under the age of 17 years and that each was an unlawful sexual act. I find the accused guilty of Count 9. In reaching that verdict, I have not used in any way the evidence of any other complainant about being sexually abused by the accused to assist the credibility or reliability of MW. Propensity and improbability 350 I have found Counts 1, 8, 9 and 13361 established beyond a reasonable doubt. I have also found the uncharged sexual acts involving DG established beyond a reasonable doubt. It is convenient to refer to this as the evidence the subject of Counts 1, 8, 9 and 13, but included within that is the uncharged sexual acts to which I have just referred. Having reached that state of satisfaction about the acts just mentioned, I will consider whether I should use that evidence in evaluating the remaining counts and, if so, how. 360 T574.13–15. 361 I include in Count 13 the whole of the evidence of DA about the incident the subject of that count. -- 93 of 170 -- [2024] SADC 75 Kimber J 92 351 By the time that the trial concluded, s 34P of the Evidence Act 1929 (SA) provided:362 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). 362 The trial commenced on 7 March 2022 but did not conclude until 2 February 2023. The requirement that the permissible use ‘substantially’ outweighs any prejudicial effect was removed from sub-s (2)(a) by the Statutes Amendment Act (Child Sexual Abuse) Act 2021 (SA) which came into operation on 1 June 2022 and therefore before the trial concluded. There was no other amendment. There was no transitional provision. While s 34P might direct attention to when evidence is admitted, there was no objection to any evidence being admitted. The issue in the trial was about the use(s) of discreditable conduct evidence. In my view, as the trial was not completed until after the amendment came into force, the Act as amended applies. The amendment is procedural not substantive: Rodway v The Queen (1990) 169 CLR 515, 518–521; R v Seigneur (2009) 103 SASR 207, [27]–[29]; [74]; [98]–[103]. However, in an approach that does not disadvantage the accused, for the avoidance of doubt, and error, I have applied the Act as it was before s 34P was amended. For that reason, in the body of the judgment, I refer to evidence ‘substantially’ outweighing any prejudicial effect and references to s 34P(2)(a) in the judgment should also be understood in that way. Obviously enough, if s 34P(2)(a) before the amendment is satisfied, that sub-section will be satisfised after the amendment. -- 94 of 170 -- [2024] SADC 75 Kimber J 93 Propensity—section 34P(2)(a) and (b), and (3) 352 At this point I will consider whether the evidence the subject of Counts 1, 8, 9 and 13 shows the accused to have ‘a particular propensity to engage in the conduct described’ by any, or all, the other complainants.363 The propensity advanced by the prosecution is ‘a sexual interest in children and a tendency to act on that interest opportunistically, within the home environment and notwithstanding a familial connection or a high risk of detection’. 353 In Hughes v The Queen364 Kiefel CJ, Bell, Keane and Edelman JJ held: The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as “underlying unity”, “pattern of conduct” or “modus operandi”. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged. 354 In R v C, CA, the Chief Justice explained what was meant by using evidence between complainants on a propensity basis. The Chief Justice said:365 I should first explain further what I mean by a propensity basis for cross-admissibility. It is that the evidence disclosed a proclivity on the part of the appellant to abuse the access he had to his son’s friends for the purposes of gratifying his paedophilic desires. The reasoning in support of a finding of guilt based on the demonstration of a particular propensity differs markedly from similarity of account reasoning. I have explained the latter… above. The former involves three essential steps in the circumstances of this case. The first step is to determine whether the evidence proves beyond reasonable doubt that the appellant committed sexual offences or other discreditable conduct against any one of the three complainants. If the jury are so satisfied with respect to at least one of the complainants, the second step is to determine whether the offending, in the context of the wider conduct, shows an innate behavioural proclivity to commit offences of the kind committed against the other complainants. If the jury are so satisfied, the third step is to take that particular propensity into account, together with the evidence directly bearing on the other counts, in determining whether or not the totality of the evidence has proved the offending alleged against either one, or both, of the remaining complainants. Even though I have described the steps as sequential, it is permissible to consider the evidence given by two or more complainants together to arrive at both the intermediate and final conclusions. As Wells J explained in R v Sutton (Sutton), circumstantial evidence is admissible and probative even though its full strength is only realised when it is reinforced by the combined force of the other items of circumstantial evidence. (footnote omitted) 363 R v C, CA [2013] SASCFC 137 [68]. 364 (2017) 263 CLR 338, 356–357 [41] (Hughes). 365 R v C, CA [2013] SASCFC 137 [68]–[69]. -- 95 of 170 -- [2024] SADC 75 Kimber J 94 355 The first step identified by the Chief Justice is satisfied. I have separately accepted the evidence the subject of Counts 1, 8, 9 and 13 beyond a reasonable doubt. The issue is whether, viewed together, the evidence of those acts shows an innate behavioural proclivity to commit offences of the kind alleged in the remaining counts. I am satisfied that it does, other than, for the moment, with respect to Counts 10–12 inclusive. 356 In my view, the relevant propensity is to engage in sexually predatory conduct with girls as and when the opportunity presented itself in order to obtain gratification, notwithstanding the risk of detection and that the accused was, at least, the step-father366 and sole male carer of the child.367 I am satisfied the evidence which establishes this propensity substantially outweighs any prejudicial effect it may have on the accused.368 I am also satisfied the evidence establishing this propensity has strong probative value having regard to the particular issue or issues arising in the trial.369 In this case, with respect to JS and Count 7, and for each remaining relevant complainant, the issues are the honesty and reliability of the evidence of the sexual conduct alleged in those counts. Evidence of a sexual act with a child is discreditable conduct. It is impermissible to use discreditable conduct, other than conduct constituting the count being considered, to suggest the accused is a bad person and more likely to have committed the count being considered because he engaged in discreditable conduct not the subject of the count being considered (the impermissible use).370 I am satisfied that the evidence which establishes the propensity is, and can be kept sufficiently separate and distinct from the impermissible use.371 I remind myself that a person with the propensity I have described may not act on that propensity at every opportunity, including not with every child in their care. 357 As will be obvious, the propensity that I have stated above relates to girls. I intend to consider the counts involving RH last and, at that time, return to whether the accused has a propensity which has strong probative value having regard to the issues in those counts. The issues in those counts being the honesty and reliability of RH about the conduct the subject of those counts. Improbability reasoning – section 34P(2)(a) and (3) 358 At this point it is convenient to say something about improbability reasoning. 359 The touching of DA was limited to the touching of her breasts on a single occasion; the evidence the subject of Count 1 is a single occasion of touching of the vagina but DG also gave evidence of the uncharged sexual conduct I have earlier outlined; the evidence of JS of Count 8 is a single occasion of touching of the vagina; and the evidence of MW is at least three occasions of touching of the 366 In the case of the accused, he was the father and sole male carer of DA. 367 Hughes 360 [56]. 368 Evidence Act 1929 (SA) s 34P(2)(a). 369 Ibid s 34P(2)(b). 370 Ibid s 34P(1). 371 Ibid s 34P(3). -- 96 of 170 -- [2024] SADC 75 Kimber J 95 vagina (including the act of cunnilingus). The conduct towards DA did not occur in a bed used by the complainant. The alleged conduct towards JH did not occur in her bed and one alleged count occurred away from her home. The evidence of sexual acts occurring not at night and/or in beds can be contrasted to the evidence of CB, LH, JP and RH. That also can be contrasted to the evidence of JS and MW. DA was unable to recall whether anyone else was in the house at the time of Count 13. Whether there was a risk of detection is not the subject of direct evidence, but I have no doubt there was some risk on almost every occasion alleged given that there is no evidence that SW worked away from the home or was otherwise commonly away from home. I do not overlook that SW was in hospital when Count 3 involving JH is alleged to have occurred. Even if she was away from the house on some occasions, in addition to Count 3, the number of children was such that there were always some risk of detection as all but Count 4 occurred in the family home. An important matter is that the complainants were either the child or step-child of the accused, living with him and with the accused in the position of the male guardian of each complainant. 360 At a time when s 34P(2)(a) demanded the evidence substantially outweigh its prejudicial effect372, Kourakis CJ held in R v C, CA that one must ask whether the evidence has:373 … such a degree of similarity that the hypothesis that [the complainants] independently fabricated, imagined or otherwise were mistaken about the offences, for reasons peculiar to each of them, is so improbable that the probative value of the evidence substantially outweighs its prejudicial effect. The prejudice lies primarily in the antipathy to the accused which the multiple allegations will engender. That prejudice may distract a jury from any defects and frailties in the evidence directly bearing on the offences charged and predispose them to convict irrespective of the strength of that evidence. It is important therefore that the similarity of the accounts very strongly exclude the possibility of independent concoction so as to minimise the risk of a miscarriage of justice on that score. The prejudice engendered by multiple counts relating to different complainants poses less risk on the issue of collusion. A defence of collusion undermines the very similarity on which the prosecution relies. The question of collusion can be evaluated relatively free of the prejudice engendered by the allegations. 361 In R v Marshall,374 it was alleged the accused had sexually assaulted two complainants who have different mothers. At the times alleged by the respective complainants, the accused was in a relationship with the mother of the relevant complainant. The Court of Appeal described the approach to probative value in the following way:375 372 Section 34P(2)(a) before the amendment being the test that I have applied despite the amendments which came into force on 1 June 2022. See footnote [362] above. 373 R v C, CA [2013] SASCFC 137 [61]. 374 R v Marshall [2023] SASCA 105 is a case dealing with s 34P(2)(a) after the amendment referred to in footnote [362]. 375 Ibid [160]–[161]. -- 97 of 170 -- [2024] SADC 75 Kimber J 96 The probative value of the evidence in this case lies in the improbability of the complainants giving accounts of what occurred to them with the requisite degree of similarity unless they are describing what happened to them. That is whether: … the level of similarity between the accounts of the … complainants has such a degree of similarity to give rise to only two possible hypotheses; collusion and concoction, or, that the accounts are true because it is so improbable that independent of one another they could have, as a matter of coincidence, been independently fabricated, imagined or otherwise mistaken. When looking to the requisite points of similarity between the accounts of these complainants, the inquiry is therefore concerned with the extent to which the similarities (or otherwise) bear on the improbability of collusion, concoction or coincidence by the complainants. That is to say, the court must consider as a matter of common human experience the inherent unlikelihood that two children, with different mothers, would both happen to fabricate or imagine that they had been sexually abused by the same man. That each complainant was describing the corruption of an otherwise ordinary relationship by the same person was relevant to the determination of the relevance, admissibility, and probative value of their accounts. Indeed, the requisite analysis must recognise that allegations of sexual abuse against children are well outside ordinary human experience. (footnotes omitted) 362 In my view, on the proviso that collusion or innocent contamination are excluded as the cause, the similarity of what is alleged by every complainant makes it improbable that, independent of one another, they could, as a matter of coincidence, have independently fabricated, imagined or be otherwise mistaken. Subject to the proviso just mentioned, the use of the evidence of each complainant in that way would have a probative value which substantially outweighs the impermissible use earlier identified376 and is, and can be kept, sufficiently separate and distinct from the impermissible use earlier identified so as to remove any appreciable risk of the evidence being used for the impermissible use.377 363 However, the evidence does not exclude that each complainant, other than DA, is aware of at least some of what is alleged of a sexual nature against the accused by another complainant(s). Further, I am already satisfied beyond a reasonable doubt that the accused has the propensity I have identified. As a result, I intend to first consider the remaining counts without considering whether reliance on improbability reasoning is appropriate. As will be seen, I have only considered improbability reasoning in the case of some complainants and, for reasons to be given, have not ultimately engaged in that type of reasoning. JS–Count 7 364 I return to JS and Count 7. 365 All elements of Count 8 have been proven beyond a reasonable doubt. I am unable to determine with certainty when Count 8 took place compared to the balance of the conduct alleged in Count 7. Given the discussion within the family, 376 Evidence Act 1929 (SA) s 34P(2)(a). 377 Ibid s 34P(3). -- 98 of 170 -- [2024] SADC 75 Kimber J 97 the act the subject of Count 8 might have been the final occasion with JS. I will not use the evidence of Count 8 to shed light on why the accused might have believed he could commit any other unlawful sexual act within the particulars of Count 7; to explain why JS might have submitted to any such unlawful sexual act or failed to complain; nor for any other purpose other than that one occasion within the particulars of Count 7 has been proven beyond a reasonable doubt. I will also not use the evidence of Count 8 for the impermissible use identified in s 34P(1) of the Evidence Act 1929 (SA). It is unnecessary to consider whether Count 8, viewed in isolation from other acts involving other complainants, establishes the accused had a particular propensity or disposition with respect to JS specifically. Based upon the evidence the subject of Counts 1, 8, 9 and 13, I have already found the propensity earlier identified. 366 I have earlier set out the key aspects of the evidence of JS; the inconsistencies between her out of court statements and her evidence; and the inconsistencies between her evidence and other evidence; and other matters relevant to her credibility and reliability. I will not repeat all those matters. 367 Given that I am satisfied beyond a reasonable doubt that the accused touched the vagina of JS on the occasion the subject of Count 8, the issue in Count 7 is whether I am satisfied beyond a reasonable doubt that the accused committed at least one other sexual act within the particulars of Count 7. In considering that issue, it is appropriate to consider the propensity of the accused which I have identified and that I have found JS to be credible and reliable about being touched on the vagina on an occasion witnessed by Mr Doug Hallett. This is not to overlook that the evidence of JS and Mr Doug Hallett differed as to how many times that occurred and with respect to other matters. Nevertheless, it is not without significance that JS is credible and reliable in a key aspect of her evidence (i.e. – that she was touched on her vagina on an occasion witnessed by Mr Doug Hallett). 368 The evidence of JS was that she was touched on her breasts and vagina ‘on several occasions’ at ‘too many houses’.378 JS said that such conduct occurred as early as when she was nine years old.379 369 For reasons already given, there were aspects of the evidence of JS which impressed me as the account of a person who was not looking to embellish, and which were evidence of matters which were not invented or imagined. At the same time, contrary to the evidence of JS, her memory cannot have improved over time; the differences in the evidence of JS and others, including Mr Doug Hallett, are stark reminders of the infirmity of memory after such a long time; and before JS made any allegation to police of sexual abuse, she was aware that others had done 378 T567.3–5. 379 T563.2–3. -- 99 of 170 -- [2024] SADC 75 Kimber J 98 so and, at least for that reason, the risks of innocent contamination and deliberate invention must be given careful consideration. 370 I must also consider that when spoken to in 1998, JS did not allege that she had been the victim of sexual abuse. For reasons already given, I accept the explanation of JS for that. Further, having found that the act the subject of Count 8 occurred, that is a further reason not to see the statement in 1998 as being suggestive of a possibility that JS is not credible and reliable in her evidence about the sexual acts of the accused with her. 371 On the whole of the evidence of JS and bearing in mind the propensity of the accused as a piece of circumstantial evidence, I am satisfied beyond a reasonable doubt that the accused touched her vagina and breasts, did both of those things on more than one occasion and that those acts were unlawful sexual acts. I found the evidence of JS about those acts being committed by the accused more than once compelling. I reject any reasonable possibility that JS has imagined, or deliberately invented, that such conduct occurred on more than one occasion. The accused and JS were living in South Australia continuously by the time that JS was about four or five years of age (i.e. – in Hallett by May 1975). I am satisfied beyond reasonable doubt that the acts that I have found beyond a reasonable doubt in Count 7 occurred in South Australia. 372 I find the accused guilty of Count 7 and will not return a verdict on Count 8. CB–Count 6 373 CB was born on 3 January 1969. Her parents are IW and SW. Count 6 374 CB said the accused came into her bedroom when she was a child. She was unable to be precise as to when that first happened. She said ‘… I believe I was about five. I don’t know, it could have been a couple of years younger, a couple of years older’.380 CB said:381 A Just felt like it always happened. It did not take long for what it felt like it was going to be. It was a nightmare. 375 She said it would happen three to four nights a week382 and continued until she left the house.383 376 When asked what the accused would do, she said:384 A He would look in by hovering in the doorway and I would just lie there and peak and praying, praying, praying, praying ‘Go away, go away, go away’. He would sit 380 T436.2–4. 381 T436.7–9. 382 T436.11. 383 T439.38. 384 T440.3–22. -- 100 of 170 -- [2024] SADC 75 Kimber J 99 predominantly midway down the bed and pull the blankets back. I quite often would wear something to bed. He would remove what I had on and place one or two fingers inside my vagina and he would move them around. It felt like an eternity that it was happening but it would only be, you know, moments. Sometimes he would stop and put his hands up my top and play with my breasts and then he would sit one time I recall when he just sat there and pulled the covers up and sat with his hand on his head (INDICATES) and walked out and predominantly it was the same process each time. There was an occasion when he licked my vagina but it was normally with his fingers and his hands were like sand, like rough, they were so rough. But, it was pretty much the same thing each time with the sexual abuse would happen - you know, it was always the same thing in the middle of the bed and just the same thing, roughness of his hands. 377 CB told me that while she sometimes shared a bed with a sibling, ‘the sexual invasions only ever happened when I was in a bed on my own’.385 378 She said she would wear pants to avoid being touched. She said:386 A Quite often I would try to wear clothes. If I wore a nightie I would try to have pants on. Just pants, top. I would wear if I had like I said I would try pants on underneath because may be if he come in it would be too hard but it wasn’t. 379 As to cunnilingus, when asked about how many times that occurred, she said:387 A I don’t recall. Just happened one time and that was at the Darryl Davidson house and that’s the only one time I can recall that particular incident happening that he was predominantly using his fingers. 380 As for how she felt when this took place, she said:388 A I tried to leave. Over time, I don’t know you have to leave your soul to protect itself. So I would just leave my carcass to deal with what it was dealing with and protect - try and protect that little girl as best as I could by - it would be like I would leave my body behind to deal with what was being done and then I just cried in myself in my bed so nobody could hear because I didn’t want any of my siblings to know what he had just done to me because I felt dirty and disgusted, ashamed. So I would just try and be quiet. Initial complaint 381 CB is the only complainant with respect to whom there is evidence said to be an ‘initial complaint’.389 382 CB said that the first person she told was Ms Kerri Franz (nee Hunter). CB placed this conversation taking place when she was 18 or 19 years of age.390 This would place the complaint in the late 1980’s. However, CB was uncertain whether 385 T441.35–36. 386 T442.30–34. 387 T444.23–26. 388 T445.6–17. 389 Evidence Act 1929 (SA) s 34M. 390 T472.1. -- 101 of 170 -- [2024] SADC 75 Kimber J 100 it was sexual, or non-sexual, abuse she mentioned to Ms Franz. An aspect of what CB said was:391 A I don’t know, you would have to ask Kerri, I haven’t spoken with her since really, since - well, again, nothing was discussed, I’d, I mean I’d spoken to her, but it’s been many, many, many years since I’ve seen Kerri, and it wasn’t until this process that, you know, I thought, I’m so sorry I - you know, so I can sit here and say to you honestly I don’t know how much I disclosed to her. I certainly didn’t want it to be acknowledged that he had invaded my life that way. Easier to tell people that, beaten up is easy, it’s easy, so I may have only just disclosed the physical beatings, I don’t know how much I told her. 383 On the prosecution case, the uncertainty about whether sexual abuse was mentioned is resolved by the evidence of Ms Franz. Ms Franz told me there was more than one conversation. She told me that during the first:392 A Yep, so we were on our own. I remember we were at Wayne’s mother’s house. She said that her stepfather used to come into her bedroom at night and touch her. Q Do you remember her exact words. A That’s pretty much what I remember. Q Did she say ‘stepfather’ or did she call him by his name. A ‘[the Christian name of the accused]’ I think she called him. Q How did that topic of conversation arise. A I can’t remember, sorry. 384 Ms Franz placed this conversation in about 1986.393 At that time, CB would have been 17 years of age. On the evidence of Ms Franz, CB told her about touching by a male, at night, in CB’s bedroom. In my view, if the evidence of Ms Franz is accepted, what was said was a complaint of sexual touching. 385 I formed the distinct impression when Ms Franz gave evidence that she was an honest witness. Although CB could not recall whether she complained of sexual abuse or some other abuse, I accept the evidence of Ms Franz about what was said in this first conversation. I am satisfied that this was a conversation which stood out in the mind of Ms Franz. The obvious reason for Ms Franz to have known that CB alleges that her step-father came into her room at night and touched her is because that is what she was told. In contrast, on the evidence of CB, she was subjected to abuse other than sexual abuse at the hands of the accused. Given that, it is not surprising that CB cannot recall the detail of what she said to Ms Franz given all of what she said occurred in the house. I am also satisfied that what was said to Ms Franz was a complaint of sexual abuse by the accused which occurred 391 T472.27–38. 392 T549.9–18. 393 T550.5–6. -- 102 of 170 -- [2024] SADC 75 Kimber J 101 more than once. Ms Franz was told of touching, at night and in the bedroom. I accept the evidence of Ms Franz that CB either said that it was ‘[the name of the accused]’ or her ‘step-father’, both of which are consistent with the person being the accused. I am satisfied the complaint was about the accused. I also accept the evidence of Ms Franz that CB said this person ‘used’ to come into the bedroom which I am satisfied was a reference by CB to that happening more than once. 386 I am satisfied this initial complaint to Ms Franz shows a degree of consistency of conduct by CB. That is, consistency in making a complaint and consistency between what was said to Ms Franz and the evidence of CB about the sexual abuse committed by the accused.394 What CB said to Ms Franz is not evidence of the truth of what CB said. The complaint also shows how the allegation made by CB first came to light. I direct myself that there may be varied reasons why CB made the complaint when she did and to Ms Franz.395 387 This initial complaint is relevant in another way. The evidence of both CB and Ms Franz is that the initial complaint was made no later than in the late 1980’s. I accept their evidence that it was made at about that time. That is significant as even if the complaint was made as late as when CB was 19 years of age, that is a considerable time before any investigation conducted by Detective Carson and/or any meetings with the complainants about the conduct of the accused at about the time that investigation commenced. While what was said must not be treated as evidence of the truth of what was said, the fact that CB said to Ms Franz what she did when she did is evidence that is inconsistent with CB having invented or imagined what happened to her because of what she heard at, or after, any meeting or during, or because of, the investigation commenced by Detective Carson and/or any subsequent investigation. 388 That said, as set out earlier, CB was aware of what Mr Doug Hallett had alleged at the time of the observation he made involving JS and I cannot exclude that the conversations about that in which CB participated, or about which she became aware, took place before the initial complaint to Ms Franz. An issue is whether CB might have invented or imagined what the accused had done because of the discussions that followed Mr Doug Hallett reporting what he had seen involving JS. For reasons to be given, I reject those possibilities. A summary of the submissions of the accused 389 CB made two inconsistent statements. 390 In a statement given in 1998, CB referred to an occasion the accused was violent over an item of cheese. She said that she was in bed.396 The accused 394 R v Rippey [2022] SASCA 141 [132]; R v J, JA (2009) 105 SASR 563 [95]. 395 Evidence Act 1929 (SA) s 34M. 396 T499. -- 103 of 170 -- [2024] SADC 75 Kimber J 102 submits that is inconsistent with CB’s evidence-in-chief. The accused submits that in her evidence, CB said she was not in bed during that incident. 391 Even if there is an inconsistency, I am not satisfied it is of significance to whether CB is credible and reliable about being sexually abused. I am satisfied any possible inconsistency is about a matter peripheral to whether CB was sexually abused by the accused. In her evidence-in-chief, she did not say she was certain about being present during an incident involving cheese. The incident she related with certainty involving her being out of bed related to damage to a cot.397 Later in her evidence, she did refer to an incident involving cheese, but with a degree of uncertainty. She said:398 Q I will leave that now. I want to come back to something that you mentioned earlier in your evidence, which was standing with your arms up in the air. Did you say that was inside or outside. A No, it was outside next to an old verandah and there was [sic] just, you know, big poles that hold the new verandah, old verandahs. Q The posts. A Yes and individuals, so I stood next to that post. Q How many of your siblings were involved in that. A I can’t even think clearly in my mind. It was, I know I was there. I believe [JH] and [JP] were at a different post but I just know I stood there and don’t put my arms down. Don’t put my arms down - is that with the cheese - is that something to do with cheese. That might have been the plastic. I am sorry there were so many occasions that was just rolled into one nightmare of the life. 392 Even if CB had been inconsistent about any occasion of non-sexual violence, that would not cause me to have a doubt about her evidence of being sexually assaulted. I accept her evidence to the effect it was difficult to recall specific acts of violence with precision because there were so many. I accept her evidence ‘there were so many occasions that was just rolled into one nightmare of the life’.399 As I have earlier detailed, there is a substantial body of evidence that violence by the accused was not uncommon. 393 The accused submitted that CB had been inconsistent about what she knew of the allegations of others. The accused directed attention to the following aspect of the cross-examination: 400 Q I suggest that there was a meeting at [DG’s] house in 1997 about [the accused]. A I don’t recall that at this stage, I’m sorry. 397 T434. 398 T456.33–T457.12. 399 T457.10–12. 400 T540.3–27. -- 104 of 170 -- [2024] SADC 75 Kimber J 103 Q Leave aside the year or when, was there ever an occasion where you and your siblings met up at [DG’s] house about [the accused]. A The only one I recall was when Geoff Carson, the detective, came and I believe her name was Michelle, I don’t know her last name, there was [sic] two detectives that came and I met at [DG’s] then. Q I’m suggesting there was an occasion where police weren’t there but your siblings were. A I don’t recall that, I’m sorry. Q I suggest that in 1998 you told police at the time of giving that first statement that there was an afternoon when all of the sisters except for [SDH] went to [DG’s] home and [RH] and [SJH] also turned up. Do you remember telling police that. A I don’t recall that at this stage, sorry. Q You don’t recall telling police that. A Yes. Q I suggest you said ‘We talked about the abuse we had all received from [the accused] and talked about what we wanted to do about it’. A I don’t recall that, sorry. 394 I reject that CB misled me in the above evidence. CB was clear that she could not recall telling police in 1998 of a meeting involving all sisters, RH and SJH. That is not surprising. Given there was a police investigation, it is possible there was more than one meeting at around that time. The meeting(s) occurred many years ago. I accept that CB could not recall what was suggested to her. This does not mean that I do not need to carefully consider whether CB has invented, or imagined, her evidence of sexual abuse by the accused. That must be considered. However, relevant is that CB had made the initial complaint in the terms I have found before any investigation by Detective Carson in 1997 or 1998 and before any meeting at the home of DG at about that time. 395 The accused also directed attention to the evidence of CB about having spoken to SW about the allegation made by Mr Doug Hallett and submitted it was an opportunity for contamination. CB said:401 Q I was asking you about leaving home with Wayne. Was it a decision that the two of you spent any time talking about. A No. Q How did it come about that you left. 401 T468.29–T469.18. -- 105 of 170 -- [2024] SADC 75 Kimber J 104 A It was, he said ‘I’m not leaving you here, I’m taking you out of here’. [MW] and [JS] had my things packed in a box for me. Q Where were you when you and Wayne had that conversation. A At the house where he lived, I lived not him. Where I lived, where we lived. Wayne didn’t live there. Q Was there an incident or anything that happened that day before you left. A It was around the time that Doug had called everybody because he wanted to discuss the fact that he walked in and found [the accused] hurting my little sister, and the men were gonna talk to [the accused] about it, and us girls were going to speak to mum. And it was not that night I don’t think, but around that time that I was, I left. Q Did you speak to your mother about that incident where Doug said - A I [sic] she told me that [JS] was confused because she was drinking too much and she didn’t, she was confusing what [the accused] did, that wasn’t [the accused] that it was [IW], and he was always referred to as ‘dickhead’, and it - I couldn’t find the voice to say that he was doing it to me too, because I was petrified that if this happened that I wouldn’t see them again. 396 As I have said, it must be accepted that the initial complaint was not made until after CB left the house. On the evidence, the complaint was made after the incident involving Mr Doug Hallett was discussed. However, I reject that CB has invented or imagined what occurred to her because of learning something about what was alleged to have happened to JS. It is one thing for CB to learn that another sister might have been subjected to sexual abuse, it is another thing to invent or imagine repeated sexual abuse of herself as a result. 397 I reject that CB has invented what she says the accused did of a sexual nature with respect to her. I found the evidence of CB about sexual abuse by the accused compelling. I also found compelling that aspect of CB’s evidence extracted above about what SW said to her and her inability to voice what had happened to her. That struck me as a genuine recollection which CB did not invent. I accept that evidence was honest and reliable. The inability to voice to SW what had happened to her is consistent with CB having been sexually abused by the accused before the incident involving JS and Mr Doug Hallett came to light. 398 I observe that although there is no record of contact with police at around the time of the observations referred to by Mr Doug Hallett, the evidence of CB supports that there were some effort to advance the complaint beyond the family at around that time. CB said:402 Q Were you ever aware that there were any charges against [the accused]. A Yes, yes. 402 T473.14–26. -- 106 of 170 -- [2024] SADC 75 Kimber J 105 Q When did you become aware of that. A [DG] I believe it was, and [DG’s husband], took [JS] to Kadina, and I know again my mother sat there telling me that it was a lie, and it wasn’t [the accused], it was [IW] that had hurt [JS] and abused [JS], and when I tried to mention to mum that I don’t think that [JS is] lying, she looked at me and told me that ‘You will be all separated again’, ‘You will be taken away from one another’, my weakness, I couldn’t stand up and say anything, and I let my little sister down. 399 The accused was critical of CB as she gave evidence that she did not know any detail of what had been alleged by others. It is necessary to set out what CB said at some length:403 Q [CB], at today’s date, sitting here now, do you know any detail from anyone of sexual abuse that they have suffered at [the accused’s] hands. A Aside from like nothing, no details, but my siblings - Q What about your siblings. A They never knew, when I prayed that he didn’t come into my room, I didn’t think that it was to send him into one of my other siblings, and - Q Have you learnt something from one or more of your siblings. A Nothing detailed, I don’t know any details of what they suffered, but I’ve learnt that I’m not the only one. Q And when did you, you mean you’re not the only one to suffer what. A Sexual abuse. I knew, we knew beatings, that was just shared but - Q Putting aside your own conclusions, and just dealing with what you were told by other people, when were you first told that one or more of your siblings had been sexually abused by [the accused]. A With, when the proceedings and, I don’t know where we were, I’m trying to think. There was [sic] some detectives. I went to [DG’s] place at Murray Bridge, and - I just thought the other girls were beaten and not, not invaded. That was at [DG’s] place I think, I’m just really struggling with trying to understand, I’m sorry. Q That’s okay. I’m going to test your memory again, when did this thing happen at [DG’s] place in Murray Bridge. A On Old Swanport Road I think. Q Sorry when. A About seven years ago I think. HIS HONOUR 403 T474.12–T475.38; T478.11–T481.30. -- 107 of 170 -- [2024] SADC 75 Kimber J 106 Q How many years ago. A About seven years ago I think. Q About seven years ago, thank you. A Yeah. XN Q Does 2015 sound right. A I was 45, I’m now 53. Q So eight years ago. A Yeah, eight. Q Which of your sisters did you learn suffered sexual abuse at [the accused’s] hands. A Which what? Q Which of your siblings did you learn had suffered sexual abuse at [the accused’s] hands. A Well most of them - Q I’m not asking you to guess, I’m asking you to tell us. Who told you that they were sexually abused, or who you were told was sexually abused. A Never discussed that with one another. Q No, but I think you told his Honour that you understood that you weren’t alone in suffering sexual abuse. A Yes. Q That’s what I’m asking about. A Okay. Q So you weren’t alone, who else was with you in that group. A [DG]. Q Sorry. A [LH], [JH], [MW] wasn’t there I don’t think. Q No, but who was with you in the group of people to suffer sexual abuse. A I’m confused, what – … -- 108 of 170 -- [2024] SADC 75 Kimber J 107 Q Have you at any stage learnt that [DG] was a victim of sexual abuse at [the accused’s] hands. A She’s not said to me that [the accused] had done anything to her. We don’t speak about it with one another. I believe that she was the victim at some stage but that’s like me. Q Do you base that on something you have heard or seen or a combination of what you have heard and seen. A It is what I believe. Q Sorry. A That is what I believe. Q What do you base it on though. Is it something that you have heard or seen. A I can’t see that one - why would one be left out? Q You have made an assumption about that. A Yes. Q Has [DG] or anybody else told you that [DG] suffered sexual abuse at [the accused’s] hands. A No. Q [LH], has she ever told you that she was ever sexually abused by [the accused]. A No. Q Has anyone else told you that she was. A No. Q Again putting aside any detail. A No, not that I can recall. I don’t recall any conversations. Q Have you had any conversations with [DG] or [LH] on the subject of sexual abuse at [the accused’s] hand. A No, I don’t - have I told them what he did to me do you mean? Q No, I am not talking about detail. I am talking about a conversation where the subject was sexual abuse. A When there was - we were at [DG’s] when we first met I said that [the accused] had done things to me but we have not gone - none of the details were ever discussed. Q You have said that to [DG]. A When we were at [DG’s] that day, there was [sic] [DG], [JH], [LH], [JP], [MW] I think. I can’t recall if [MW] was there or not. -- 109 of 170 -- [2024] SADC 75 Kimber J 108 Q Forgive me, when do you say this took place. A That was when we caught up, it was about seven years, I was 45. Q This is the same occasion that you described was seven or so years ago. A Yes, when I was 45. Q Did you say that you were sexually abused or what words did you use. A I said that he had abused me sexually. Q To whom did you say that. A Just when, her name was [Alex Mission] someone, another detective that was there and Geoff Carson was there. Q At [DG’s] house. A Yes. Q Who of your siblings were present when you said that. A That was [DG] and [JH], [JP], [JS] was there. I don’t think [MW] was there. Q Were they within earshot of you. Could they have heard you say that. A I don’t know. Q I am just trying to work out. A Yes, but I don’t know if they were listening or not. There was [Alex Mission], I’m pretty sure that was the other detective’s name that was there. I know Geoff Carson was there with another lady. Geoff, I am pretty sure her name was [Alex Mission], not my sister [MW] that was there and after that had gone we didn’t - we have not discussed with one another what has gone on. Q I will get back to your sisters individually. I asked you about [DG] and [LH]. Has [JH] ever told you that she was sexually abused or said anything like that. A Not that I can recall at this time, no. Q I am talking about at any point up till today’s date. A No, we don’t discuss the sexual abuse, about the physical abuse we have talked about. There was a lot of that that was together. Q Have you told [JH] or was [JH] present when you were telling other people that you were sexually abused. A Yeah, when I reached out to [JH], I don’t know how many years it was and told her that [the accused] had violated me in more ways than one and [JH] had told me that I should have a voice, to stand up and just say something about what had been done. Q This is before or after the meeting seven years ago. -- 110 of 170 -- [2024] SADC 75 Kimber J 109 A No, that was back - I think she was living in Sudan [sic], it was a long time ago and after that we didn’t discuss any more. Was that when I first - it was years ago when I went and spoke to the detectives Geoff Carson, I suppose to him. Q Are you saying that that conversation was with [JH] was before or after you spoke to Geoff Carson. A No, before. Because [JH] said to me that I should go and do something about it. There was another issue that she was dealing with at the time with her partner at that time I think. Q Was it around the time of [JH] dealing with something with her partner. A Yes. Q Have you had any conversations with [JP] about sexual abuse at [the accused’s] hands. A Not that I recall. It is something that I have wanted to talk to them about. Q What about [JS], have you spoken to her about her sexual abuse or your sexual abuse. A No, not that I can recall. It is again the beatings, yes, but I don’t - Q You told his Honour before lunch that Doug Hallett mentioned something about [JS]. A Yes. Q Did you understand from that that she had been a victim of sexual abuse. A That’s what I believed but we never talked about the details. Q Moving on to [MW], have you had a conversation with [MW] about the topic of sexual abuse and [RH]. A No. Q [RH], as young [RH]. A When I was living in Tennyson Terrace in Murray Bridge [RH] came around one day and he was pretty messed up. Q Please don’t tell us anything he said but did you have a conversation. A Yes, [RH] mentioned, talked to me and I just looked at him and said to him ‘Now I know why my brother is so fucked up’. Q I am not going to ask you about that. Did you understand from that that he had been a victim of sexual abuse. A That’s what I believed. Q When did that conversation take place. A At around the same time when I was 45. It was just prior to finishing work and that’s when I was 45. -- 111 of 170 -- [2024] SADC 75 Kimber J 110 Q Was it before or after the meeting at [DG’s] with Geoff Carson. A No, that was after. 400 The accused also directed attention to there being an opportunity to learn of allegations made by LH while attending counselling. CB said:404 Q You and [LH] you said attended some counselling, is that right. A Yes. Q I don’t want you to tell the court anything about what happened at those counselling sessions for you. A Yes. Q But did you and [LH] discuss why you were going for counselling. A No. Q How did you know she was going. A [LH] took me. Q She drove you there did she. A I don’t have - yes, I don’t think we took a bus. Q So you went together. A Yes. I do have some paperwork there if you’d like to see that? Q All I’m asking is whether there was [sic] any conversation between you and [LH] about either why you were going, or why she was going to the counsellor. A We have an unspoken understanding, I don’t need to poison my sisters. HIS HONOUR Q Why did you think [LH] was going to counselling. A To get help for the bashings that we received. Q Just bashings, nothing else. A I never spoke to my siblings about the sexual abuse, I couldn’t. Q Did you say anything to [LH] about why you were happy to go to counselling, she was taking you, did you say anything to her as to why you were happy to go, or why you felt you needed to go. 404 T532.30–T533.26. -- 112 of 170 -- [2024] SADC 75 Kimber J 111 A Because I had so many different confusing - I felt like so many different people, in one body. So being - and we all knew when, about being physically abused, and knowing how to handle and cope with that, but - 401 In my view, throughout the above evidence, CB was doing her best to recall accurately what had been discussed. I accept that her evidence might not be entirely reliable as to precisely what was discussed and when. I view that as unremarkable given the passage of time. I have no doubt that she did her best to recall what had been said by whom. In my view, any imperfections in her memory do not have significance in evaluating whether she was truthful about being sexually abused. I reject that she deliberately invented any aspect of her evidence. Throughout her evidence, CB struck me as giving evidence only of what she believed to be true. This is not to say that discussions with other complainants are not significant in evaluating whether CB has imagined sexual abuse of her. That remains important. 402 The accused submitted that a concern about the evidence of CB arose because of evidence she gave about ‘personality problems’. CB gave evidence:405 Q Would you describe it as having a lot of personality problems. A Yes. Q And you felt as if there were lots of different people that were you, is that right. A I was trying - because I didn’t want to cause any more - I didn’t want to upset, disappoint, or hurt any of my siblings, and this was actually a diagnosis that Dr Cotton came to. He recognised nine personalities, and I thought I am crazy, I am crazy, and he said no, what separates you - I, I become each person that I wanted, that I thought my sibling wanted me to be. So [DG] wouldn’t have been responsible for me, so I tried to be the person that each of my siblings thought I needed to be. So rather than, I wasn’t Mary, or Sally, or you know, anyone else, I was always me, but I would be who I wanted to - the person them to see me to become. I know that sounds confusing, but it was confusing. So, but I know I am me, I’ve addressed a lot. 403 The above evidence requires careful consideration, but has not caused me to doubt the honesty of CB. To the contrary, that CB gave such evidence reflects that she wanted to be honest. The potential issue the above evidence raises is one of reliability. Has the prosecution excluded the possibility that CB has imagined what has occurred in part, or in whole, influenced by a personality issue like that described in her evidence? 404 The accused submitted that I might doubt CB because she raised, without being asked, whether she took her children to the home of the accused. The submission was that the evidence of CB was not responsive and indicated that she had discussed the evidence of another complainant(s) and was prepared to adapt 405 T533.36–T534.17. -- 113 of 170 -- [2024] SADC 75 Kimber J 112 her evidence as a result. By the time CB gave evidence, JH, LH, JP and Mr John P had given evidence about whether their children visited the accused.406 405 It is helpful to set out CB’s evidence in some detail:407 Q What about when you were drinking with your siblings, did you talk about any sexual conduct. A No. Q Would you ever drink to excess back when you were drinking, meaning did you get really drunk sometimes. A I could drink a lot before. For a small person I could drink a lot before I would get intoxicated and if I felt myself getting intoxicated I would feel myself becoming emotional and I would put myself - I would go to bed. So, there’s occasions again I can’t obviously a bit intoxicated I would go to bed. Wake up in the morning, like every other time in life nothing is ever discussed. It is left there. Q When you would have these nights when you would drink and chat about various things with your siblings, which siblings were there. A It varies, just varies on occasions. When I moved to Adelaide I didn’t go back that often and when I did because I had had - I didn’t - I rarely took - I think I recall taking my children out to the farm three or four times. Quite often got flack ‘Where are the kids?’, ‘They are with my Wayne’. I didn’t bring them out because I wasn’t going to subject my children to the lifestyle that I was raised in. So I didn’t take them there that often. Q I didn’t ask you about whether your children went there. Why did you tell his Honour that. A What, sorry? Q You just told his Honour that you didn’t take your children out to [the accused] and [SW’s]. A Yes. Q Because you didn’t want them subjected to [the accused] and [SW], is that right. A Yes. Q Why did you tell his Honour that about your children. A I thought you were asking me about how regularly I would catch up and drink and discuss things. So, I lived in Adelaide so it was rare that I would go there and do that. I am sorry if that confused. 406 T286.15–16, T316.7–T317.2 (JH); T246.33–T247.33 (LH); T420.9–T421.28 (JP); T355.18–T356.7 (Mr John P). 407 T503.36–T507.1. -- 114 of 170 -- [2024] SADC 75 Kimber J 113 HIS HONOUR: Don’t apologise. Ms Abbey is just asking you why you raised the children in particular, that is all. A That’s why I begun this thing because of that. XXN Q Some of your sisters have been in at court, haven’t they. A Yes, in here. Q Have you seen any of them today, for example. A Briefly in lunch I walked down with my support worker and got some lunch and then I had a smoke. [DG] stood over there with me and then I came back up here. Q What about last week, were you up here in court while you were giving evidence last week. A Yes, I waited up here in the room in there. Q Did someone mention to you that you might be asked about whether your children went to [the accused] and [SW’s]. A No. Q How many of you were in here on Friday, for example. A I don’t know. Q Did you come in on Friday. A I think I was everything felt a bit overwhelming on Friday. Sorry, what date was Friday? HIS HONOUR Q Friday was last Friday, were you here last week waiting to give evidence. A I came more so to be here for support for something other than this. Q Were you here last week at court one day or more than one day last week. A More than one day. On Friday, that’s what I think Friday I had to go to Flinders. XXN Q Let’s leave Friday out of it. A Yes. Q Friday was a big day for other reasons. What about the days earlier in last week. So Monday, Tuesday, Wednesday, Thursday were you in here seeing your sisters on any of those days. -- 115 of 170 -- [2024] SADC 75 Kimber J 114 A I don’t think I came Monday but I know I was here on Tuesday and Wednesday and Thursday. I have come in. Q Did you chat to your sisters about how their evidence was going or what they were asked. A God no, I didn’t ask them what. They asked ‘How are you?’, and I give them a hug but I certainly didn’t ask them what, you know, what they had to say or what did they get asked but, yes, I hugged and asked them, you know, ‘How are you going? Are you okay?’, doing a great job I thought. Q I suggest that your kids did go and stay with [the accused] and [SW] when you weren’t there, when [the accused] and [SW] were living in Snowtown. What do you say about that. A I don’t believe that for a moment. Q Sorry. A I don’t believe that one moment. Q You say you don’t believe it. Do you have a memory of whether that happened or not. A No, no. I never ever, ever recall a memory of leaving my children with him. Q I suggest that that would happen not exactly but roundabout every four weeks, about that often. A No. Q It would be so that they could babysit while you had other things to do. A No. Q Did you ever go to the Lochiel Pub. A Yes. Q Might the kids have gone to [the accused] and [SW’s] while you went there. A No, not in living memory in my head that’s left them with him. Q I am suggesting sometimes that would be for the whole weekend. A No. Q So you would send them up to the Snowtown house when [the accused] and [SW] were there. A I am sorry to be sitting here disagreeing with you shaking my head, I feel a bit rude but, no, I would not leave my children with him for a weekend. -- 116 of 170 -- [2024] SADC 75 Kimber J 115 406 The effect of the submission was that CB first raising her children was suggestive of adapting her evidence to be consistent with that of another witness(es). 407 I reject the evidence was unresponsive. CB was being asked about opportunities to discuss sexual abuse with others. I am satisfied that she raised only taking her children out to the home of the accused ‘three or four times’ as part of explaining the extent to which there were opportunities, when drinking with other complainants, to discuss sexual abuse. I reject that answer as unresponsive or in any way suggestive of a willingness to adapt her evidence because of something anyone else said. I accept, as CB said, that the answer she gave was part of her response to how regularly she drank with siblings and had the opportunity to discuss allegations of sexual abuse by the accused. Further discussion 408 I was impressed by the evidence of CB. I recognise that it was suggested that CB might have told deliberate lies. Nevertheless, I have no doubt she was an honest witness. As I have said, throughout the whole of the evidence of CB, I formed the clear impression that she believed what she said in evidence. In my view, the real issue is her reliability. 409 I am satisfied beyond a reasonable doubt CB was a reliable witness when she told me she had been touched in a sexual way on many occasions by the accused. This is despite the evidence with respect to her personality set out above and the other criticisms advanced and discussed above. The evidence given by CB about what she was told by Dr Cotton about her personality, even if what was said to CB outside of court were treated as evidence of the truth, does not cause me to doubt what she said about being sexually abused by the accused more than once. While I have treated that evidence as cause for caution in evaluating the evidence of CB, there was no further exploration in the evidence about who Dr Cotton was nor about what that person might have meant when he/she recognised nine personalities. Further, CB’s account of what Dr Cotton recognised does not go so far as to reveal that CB was told that she might imagine being sexually abused. It can be observed that other aspects of CB’s memories of her childhood (i.e. – that she lived in a violent home) are not, at least in a general sense, unreliable. As will be set out below, there were specific aspects of CB’s evidence which I am satisfied beyond a reasonable doubt were not invented or imagined. 410 In addition to the positive impression CB made when she gave her evidence and the ‘initial complaint’ which shows a degree of consistency of conduct, there were specific aspects of CB’s evidence which I am satisfied were not imagined, nor invented. 411 When CB said the accused coming into her room ‘felt like it always happened’ and ‘it was a nightmare’,408 I do not doubt she was relating a genuine 408 T436.7–9. -- 117 of 170 -- [2024] SADC 75 Kimber J 116 and accurate memory. I have the same view of her evidence of how she would ‘pray’ when she first saw him in the doorway,409 her evidence about the conduct being ‘always the same thing’, and recalling the ‘roughness of his hands’.410 It might be one thing to imagine being sexually abused because of awareness of similar allegations being made by others, nevertheless, I am satisfied that it is a very different thing to imagine details like that given by CB. I also reject that CB might have deliberately invented such details. Further, as I have said, the initial complaint is inconsistent with CB having imagined sexual acts by the accused because of conversations commencing in about 1997. On the evidence, that CB knew of the conduct of the accused of a sexual nature to others at the time of the initial complaint is limited to the discussion about JS. 412 I found the evidence of CB about how she would respond by wearing pants on top of her nightie,411 how she would shut her eyes and, as I understood her evidence, pretend that she was elsewhere in order to protect herself,412 compelling. I reject that any of those aspects of her evidence might have been invented or imagined, notwithstanding the evidence of CB about her personality and the risk of contamination as a result of conversations with others. 413 During cross-examination, CB gave the following evidence which I have no doubt was the truth. I reject that CB invented or imagined any aspect of this evidence:413 Q I suggest it’s not true that you are remembering detail of sexual assault by [the accused] on you. What do you say. A I’m sorry my darling you weren’t there, I lived and survived this, it is true what he has done to me. Q I suggest that you have decided to say whatever it takes to get [the accused] punished. What do you say. A No, I’ve decided to tell you the truth. Q And I suggest that where there are any gaps in your memory or uncertainties, you have filled them in with things your siblings have said. A No, no, and I’m not looking for - this for me was about my truth being heard. Lock him up, don’t lock him up, don’t care. Because I’m walking away knowing that I’ve handed the ownership of this back, I just needed some peace so I can repair that face what that little girl never got. I just - my truth is being heard from here, I will walk out that today and leave it all where it belongs. 414 I reject that CB lied in order to say whatever she considered necessary for the motive suggested in cross-examination. I reject that she deliberately incorporated 409 T440. 410 T440.21–22. 411 T442.30–34. 412 T445.8–17. 413 T543.17–T517.34. -- 118 of 170 -- [2024] SADC 75 Kimber J 117 into her evidence, things that have been said by others. I am satisfied beyond a reasonable doubt that she wanted to tell the truth and did so. 415 I recognise the risk of innocent contamination, and the caution needed because of the evidence about personality. However, bearing in mind the particular aspects of CB’s evidence I have referred to above as having impressed me as not invented or imagined; that the initial complaint shows a degree of consistency of conduct with what CB alleged in her evidence about the conduct of the accused towards her; and the whole of the evidence of CB, I reject any reasonable possibility that CB has invented or imagined that she was sexually abused by the accused on more than one occasion in the way she described in her evidence. 416 I am satisfied beyond a reasonable doubt that before CB turned 17, the accused touched, and penetrated, CB’s vagina with a finger and touched her breasts. I am satisfied beyond a reasonable doubt that each act was committed on more than one occasion and that those acts occurred in South Australia. I am also satisfied beyond a reasonable doubt the accused performed cunnilingus on CB at, or near, Snowtown. I am satisfied beyond a reasonable doubt that each act was unlawful sexual act. I have reached those states of satisfaction without using the evidence of any other complainant about having been sexually abused by the accused. I have not used the propensity of the accused as a piece of circumstantial evidence and have not engaged in improbability reasoning. 417 I find the accused guilty of Count 6. LH–Count 2 418 LH is the daughter of SW and IW. She was born on 25 February 1964. Count 2 419 LH gave evidence the accused would come into her bedroom at night and sexually assault her. She said it happened ‘numerous times over the years’.414 She placed that as occurring at least at the houses at Hoyleton, Hallett and Kaniva.415 Any evidence of sexual acts outside of South Australia (i.e. – Kaniva) is not part of what is alleged in Count 2. The only permissible use of evidence of any such conduct outside of South Australia is to put into context the evidence of LH about what she alleges occurred in South Australia.416 More specifically, evidence of sexual acts in Kaniva which preceded such conduct in South Australia (e.g. – in Hoyleton and Hallett) might explain why LH submitted to, and did not complain about, acts which were later in time and might explain why the accused might have believed LH would submit to acts which were later in time. Evidence of LH about 414 T194.16. 415 T202.3–5. 416 Evidence Act 1929 (SA) s 34P(2)(a). See footnote [362]. -- 119 of 170 -- [2024] SADC 75 Kimber J 118 any sexual act which was not in South Australia cannot be used to suggest that the accused is a bad person who is more likely to have committed Count 2.417 420 LH said sexual acts happened multiple times but there was no discernible pattern. She said, ‘It happened randomly’.418 LH said she knew it was the accused. She saw him and heard his voice.419 421 LH was unable to say how old she was when it first happened.420 She said:421 A I don’t know where to start, there was [sic] just so many different occasions, I can’t pinpoint, I can’t pinpoint, just one particular time. 422 Among what LH said was:422 A He would come into the bedroom and come over to the bed, my bed, and I remember pulling the covers up and saying ‘Don’t’ and he was pulling the covers back down and telling me that ‘It’s all right, I know you’ll like it’ like ‘It’s okay’. I remember trying to pull the covers up. He pulled my nighty up and my underwear down and I kept saying ‘No please don’t’ I was told that I would be separated from my sisters. He put his finger inside of me. … A He would stand at the doorway quite often and I just remember hoping that it wasn’t going to be me, knowing it would be someone and stood there, would have the door open a bit, the light was never on and I remember he had his trousers pulled down, masturbating. He didn’t come over to me at that particular time but I, I seen him over the top of another one of my sisters. 423 LH described the accused placing his fingers in her vagina as being ‘horrible’.423 She said the accused would tell her to ‘shut up’, told her that she ‘liked it’ and told her on one occasion that she would be separated from her siblings.424 She said when the accused left the room she would just pull herself together and cry.425 424 LH said there were occasions of sexual assault when she was alone in her bed. On other occasions, she was sharing a bed with a sister.426 On a couple of occasions she cried and the accused walked away.427 She thought she ‘probably yelled a bit louder’.428 417 Evidence Act 1929 (SA) s 34P(1). 418 T200.32. 419 T204.18. 420 T194.7. 421 T202.17–19. 422 T193.16–24; T193.32–38. 423 T199.38. 424 T198.9–15. 425 T200.13–14. 426 T203.2–3. 427 T202.23–25. 428 T203.2–3. -- 120 of 170 -- [2024] SADC 75 Kimber J 119 Some other aspects of the evidence of LH 425 LH said she saw the accused at the beds of other girls in the family.429 A Well, that particular time I just described he would come to me. I seen him over [SDH] once, over, I know another time - I don’t exactly know which one of the girls it was but on numerous occasions I would see him over the top of one of us. It was - there was just no particular one that he would choose, I don’t know it was just whoever. Q What do you mean ‘He was over one of us or over [SDH]’, what do you mean. A Well, what I seen he was at the bed, he was kneeling down and I didn’t actually see what he was doing. I heard my sisters saying ‘No’, crying and I didn’t see exactly what he was doing but I knew what was happening to me that that it was happening to them. I didn’t actually see what he was doing but he was bent down, knelt down. 426 This gives rise to a potential conflict between the evidence of LH above and the evidence of SDH. It is necessary to identify if there is a conflict. 427 SDH gave evidence she had not been the subject of sexual abuse.430 A starting point is that a step-father leaning over a child in her bed is not only consistent with a sexual assault being committed. LH did not claim to have seen what was taking place. A sister saying ‘No’ might be strongly suggestive of that sister experiencing, or anticipating, something she did not want to happen. But given LH referred to seeing something involving SDH ‘once’ and seeing the accused approach ‘the girls’ on ‘numerous occasions’, I do not interpret the evidence of LH as being that ‘No’ was necessarily said by SDH. Even if it was said, I am not satisfied that it was said in response to a sexual assault, or in response to one being anticipated. A child in the position of SDH might say ‘No’ for reasons other than experiencing, or anticipating, a sexual assault. In any event, the real issue is not whether there might be a conflict in these parts of the evidence. The issue is whether LH was sexually assaulted as she described in her evidence. For these reasons, even if there is a conflict between the evidence of LH and SDH, which I doubt given the evidence, I am satisfied it is not relevant to the credibility and reliability of LH about whether she was sexually abused in the way that she alleged in her evidence. 428 LH did not claim to be able to see whether the accused was touching any other child. She said she would hear the accused speaking. She said, ‘I don’t know exactly what he was saying but just telling them to be quiet and shush’.431 429 When asked why she did not tell anyone about the sexual assaults while still living with the accused and SW, she said: ‘I didn’t want to speak about it. I don’t 429 T195.2–17. 430 T847.2–3 431 T196.19–22. -- 121 of 170 -- [2024] SADC 75 Kimber J 120 know, ashamed I guess, I don’t know. I just didn’t want to speak about it’.432 She also said: ‘I don’t even like speaking about it now’.433 430 LH said the accused was not the only person who sexually abused her as a child. She said about IW:434 A There was [sic] a couple of times that my real father had come into the bedroom and he had tied [sic] to get close to me, tried to touch me, I cried and he left me alone. Q When you say he tried to get close to you, he touched you. A Tried. Q He touched you sexually. A He tried to kiss me and tried to, tried to touch me through my clothing. Q He did in fact touch you, didn’t he, on the vagina. A He didn’t penetrate, put his fingers in my vagina, no. Q He touched you on the outside. A He did. Q And he would put his hand underneath the sheets or would he pull the sheet back. A He had his hand under the sheet but not through my underwear. Q So on top of your underwear and pyjamas. A Yes. Q He came into the bedroom to do that. A Yes, I was in bed. Q Sometimes you’d be sleeping. A I would generally wake up when someone came into the bedroom. 431 LH has previously said that she has a memory of sexual assaults by Mr G.435 Inconsistent statements 432 LH has made prior inconsistent statements. 433 LH gave evidence that she saw the accused masturbating.436 In a statement given in 2020, LH said she could not recall a time when the accused had 432 T204.31–34. 433 T205.1–2. 434 T222.7–30. 435 T230.8–11. 436 T193–194. -- 122 of 170 -- [2024] SADC 75 Kimber J 121 masturbated and then sexually assaulted her in her bed.437 Initially, LH did not say in evidence she had seen the accused masturbate and that she was then assaulted. She said:438 A He would stand at the doorway quite often and I just remember hoping that it wasn’t going to be me, knowing it would be someone and stood there, would have the door open a bit, the light was never on and I remember he had his trousers pulled down, masturbating. He didn’t come over to me at that particular time but I, I seen him over the top of another one of my sisters (emphasis added) 434 However, she said later in her evidence that the accused had come over to her after she had seen him masturbating. LH said:439 A I’d just seen his pants down and touching himself. Q I’m sorry to ask. A Masturbating. Q Masturbating his penis. You said after that happened he would enter the room. A Yes. Q For how long would he be at the doorway. A A little while, not - I don’t know, probably a minute or so, I don’t know exactly. I just know like - I don’t know. Q When he entered the room where did you say he went. A Well, that particular time I just described he would come to me. I seen him over [SDH] once, over, I know another time - I don’t exactly know which one of the girls it was but on numerous occasions I would see him over the top of one of us. It was - there was just no particular one that he would choose, I don’t know it was just whoever. (emphasis added) 435 As set out earlier, LH gave evidence of having been sexually assaulted by the accused on many occasions. She said that it occurred ‘at every house we were at’.440 LH agreed that in a statement given in 1998, she did not provide detail to the police of sexual touching of her by the accused.441 An aspect of what LH said at that time was the accused had come into her bedroom and attempted to do that, but she had said ‘leave me alone’.442 LH said she could not bring herself to talk 437 T239.9–19. 438 T193.32–38. 439 T194.29–T195.8. 440 T201.23. 441 T231.23–26. 442 T229.19–23. -- 123 of 170 -- [2024] SADC 75 Kimber J 122 about any sexual touching of herself and that her coping mechanism had been alcohol and other drugs.443 LH gave the following evidence about why she had not provided detail of sexual touching when she spoke to the police in 1998:444 Q Did you make a conscious choice not to tell the police everything or looking back are you assuming that that’s the explanation. A No, not looking back. I just couldn’t speak about it. I know back then my frame of mind that I was in and I know I couldn’t speak, could not speak about it. I didn’t want to. 436 In my view, LH was saying in the above answer that what she said to the police in 1998 was a deliberate decision. 437 Each of the above inconsistent statements is important. Each is relevant to the credibility and reliability of the evidence of LH that she was sexually assaulted by the accused. I will set out in more detail later what LH said in 1998. As will be seen, in 1998 LH did not say that she had not been sexually abused by the accused and the significance of the failure to provide detail at that time must be evaluated in that context. 438 LH said in evidence she could not recall being sexually assaulted by Mr G,445 whom, on the evidence, may have had opportunity to do that at least during the period between the death of IW and the commencement of the accused’s relationship with SW. In a statement given in 1998, LH said ‘even [Mr G] used to come into our rooms and touch us’.446 The inconsistency is important as it relates to statements by LH about sexual abuse of her as a child. Further, while that statement was about another person, that LH was able to talk about Mr G in 1998 can be contrasted with LH saying that at the same time she could not talk about what the accused had done. While, in my view, it must not be overlooked that the accused had played a much more significant role in LH’s life than Mr G had done and the different relationship may have informed what LH was prepared to reveal in 1998, LH did not give evidence to that effect. 439 As set out above, the evidence is that LH was sexually abused byIW in her bedroom and that she has previously alleged sexual assault by Mr G. This, and her knowledge of other complainants allegedly being sexually assaulted by the accused, gives rise to the need to exclude innocent contamination. The possibility of concoction must also be considered. 440 There is a difference in the evidence of SDH and LH about whether LH would leave her children with the accused.447 I accept the emphatic denials of LH about leaving her children with the accused.448 When that evidence was given, it 443 T231.26–27. 444 T232.25–31. 445 T223. 446 Ibid. 447 T871.29–32. 448 T247.21–33. -- 124 of 170 -- [2024] SADC 75 Kimber J 123 struck me as the truth. I have no doubt she was honest and reliable about that. However, the non-sexual violence by the accused provided sufficient reason for her, and the father of her children, not to leave her children with the accused. As a result, I have not found the conduct of LH in not leaving children with the accused of assistance in considering whether she was sexually abused by the accused. Further discussion 441 I was impressed with LH when she gave her evidence. Her evidence was given in a straightforward fashion. There was nothing in the way she gave her evidence which caused me to doubt her. 442 There were aspects of LH’s evidence which suggest her evidence of sexual conduct by the accused may be something she had experienced. She became emotional when she began relating the sexual behaviour. That emotion struck me as genuine and not feigned in an attempt to add to an account LH knew to be false. In my view, LH did not seek to embellish her evidence of what she saw the accused do at the beds of others. Her evidence ‘I didn’t see exactly what he was doing, but I knew what was happening to me’449 was, in my view, consistent with her making a genuine effort to only give evidence she believed accurate and not consistent with her being prepared to invent anything. It is also inconsistent with LH wanting to lie about the conduct of the accused. I formed the same impression about her description of how many times it would happen,450 her inability to identify the first time,451 and why she did not speak to others at the time.452 443 When LH said that about the sexual abuse by the accused, ‘I don’t even like speaking about it now’,453 I was left with the impression that was a genuine explanation of how she feels about relating conduct which she has no doubt took place. I found that answer to be nothing but credible and an indicator that the real issue with LH was not her credibility, but her reliability. 444 Any prior inconsistent statements are significant in evaluating the credibility and reliability of LH. 445 It is necessary to pay close attention to the evidence about what was said in 1998. LH said:454 Q If we come back to that 1998 statement. A Yes. 449 T195.13–14. 450 T200.25–35. 451 T202.17–19. 452 T204.25–T205.2. 453 T205.1–2. 454 T228.37–T232.11. -- 125 of 170 -- [2024] SADC 75 Kimber J 124 Q I suggest that you describe one occasion, and you’re very welcome to have a look at your statement if you want to. A No, that’s alright. Q You describe one occasion, you call it an incident, while you were either living at Hallett or Hoyleton, and it was a time when [the accused] came into your room and tried to touch you up. A Yes. Q You were sharing with [JH], [DG] and [SDH]. A Yes. Q You were dozing in and out of sleep. A Yes. Q And you describe that you heard the bedroom door open and some light shone into the room from the lounge room and [the accused] stood in the door, and then you describe that he came over to your bed on that occasion, and he - A There was [sic] a number of occasions. Q I’m just focussing on what the statement says, and you’re describing one occasion where [the accused] was in the doorway, then came to your bed, and tried to touch you and you said ‘Leave me alone’. A Yes. Q And then the next thing he did was go out and come back into the bedroom, and went to be over the top of [SDH]. A Yes. Q And you’ve described that as if he’s leaning over the top of her. A Yes. Q And you’ve described that – A Leaning down. Q – that is, him standing in the doorway, then coming to your bed, going out and coming back in and leaning over [SDH] as one occasion, do you want to check your statement – A No. Q – or do you remember that that’s what you told police in 1998. A Yes. Q And then at p.6 you said ‘I can’t describe any other sexual abuse by [the accused] because I get very confused. The reason for this is because I was sexually abused -- 126 of 170 -- [2024] SADC 75 Kimber J 125 by my natural father before he died. I look back and I can just remember this dark figure coming into my room and touching my vagina under my knickers, I just can’t seem to separate one from the other. All the men in mum’s life seemed to be the same, even [Mr G], the man just before [the accused], used to come into our rooms and touch us. I know that [the accused] touched me on other occasions but I can’t describe them, I can’t separate them, it’s as though I’ve locked them away’. So, first of all, do you agree you said that bit that I’ve just read out. A I said that bit. Q And second, do you agree that in that statement you describe one occasion, where [the accused] came into your room, but you say you could not describe others. A You mean other men or – Q Other occasions. HIS HONOUR: Involving [the accused]? XXN Q Involving [the accused]. A I just want to say – HIS HONOUR: Just for the moment Ms Abbey is only asking you whether you said that in 1998 in the statement that in effect there was one occasion with [the accused]. Do you agree that that is what you said in 1998. I am not asking you whether that is true or fits with your memory. A Yes. Q You agree that’s the effect of what you said. A Okay, yes. XXN Q But today you said it happened in every house that you lived in. A Yes, that is right. Q Now, you agree you are saying something different today to what was in your 1998 statement. A Yes. Can I just explain? Q Yes. A As I said, back when I done my statement I didn’t even want to talk about anything. I didn’t want to even mention any sexual abuse because I couldn’t talk about it. I was taking drugs and alcohol, that was my copying mechanism [sic], and I didn’t even want - I didn’t want to discuss any of it, any of it. So, back then I just didn’t want to talk about any details but I know, I know as I got myself clean, I know exactly, I know I was more able to speak about it. Not that it is easy. I don’t even -- 127 of 170 -- [2024] SADC 75 Kimber J 126 like this. As I said, this is the first time that I have ever had to say it out loud to people but I was - back when I gave my statement it was like I couldn’t even - I didn’t even want to talk about any of the sexual abuse. I just couldn’t. Q But you did go to police and first of all talk to them, didn’t you. A Yes. Q Talk to a police officer. A Yes. Q Then you met with the police officer and signed that statement. A Yes. Q You didn’t lie to them at that point, did you. A I just didn’t tell the whole - everything, you know. I wouldn’t say I lied. I wouldn’t say I lied. I just didn’t say a whole lot. There was just a lot I couldn’t say. 446 Some observations can be made about the evidence above. Firstly, LH did not say in 1998 that she had not been sexually assaulted by the accused. She said that she knew that had occurred but said ‘I can’t describe them, I can’t separate them’. On one view, LH said that she could not distinguish what the accused had done on different occasions. That is not necessarily inconsistent with her evidence. The evidence of LH was that ‘there was [sic] just so many different occasions, I can’t pinpoint, just one particular time’.455 Secondly, in 1998 LH said that she had difficulty separating the conduct of Mr G and IW from that of the accused. She did not say that she could not. Indeed, what she said in 1998 was that she had been sexually assaulted by all three men, but was unable to describe the occasions on which that occurred. In the statement in 1998, the only occasion LH was able to distinguish was the occasion on which she said, ‘Leave me alone’.456 As I have said, that LH cannot really recall the details that particularly distinguish one occasion involving the accused from another is not necessarily inconsistent with her evidence. At the same time, LH did say in 1998 that it was as though she had locked away what had occurred. That must be compared to her evidence of sexual assaults which, while still general in some respects, contains some details. 447 As with all complainants, the quality of the memory of LH is important. In the case of LH, she gave evidence that her memory had become crystal clear.457 The effect of her evidence was that her memory had lacked that quality in the past but had improved since 1998. I am satisfied that LH genuinely believes that but I cannot accept it. 448 The risk of collusion and innocent contamination needs to be excluded because of LH having, or having had, memories of IW and Mr G engaging in 455 T202.17–19. 456 T229.22. 457 T233. -- 128 of 170 -- [2024] SADC 75 Kimber J 127 similar conduct. As just mentioned, in evidence, LH was able to give some detail, albeit not detail that distinguished one occasion from another. For example, LH gave evidence of pulling the covers up; the accused moving her nighty and underwear; telling her that she would be separated from her sisters; being penetrated; and places that she was living. While none of that evidence distinguishes one occasion from another it would appear to be detail not given in 1998 and would appear to be evidence which might separate the conduct of the accused from the two other men who abused LH as a child. Nevertheless, as I have just said, the memory of LH cannot have improved since 1998. 449 As with all complainants, the passage of time gives rise to a real risk of mistaken memory. With respect to LH, that risk is further heightened for two specific reasons. Firstly, as I have just said, LH has said that she was sexually abused as a child by IW and Mr G. Secondly, on the evidence of DG, IW would masturbate in her presence. That conduct was a key feature of the evidence of LH about the behaviour of the accused. Significantly in my view, that was not an aspect of the evidence of any other witness about the behaviour of the accused. It gives rise to a further need to carefully consider the possibility that LH has attributed that specific behaviour to the accused when it was not engaged in by him and the risk that LH has attributed conduct by another person(s) to the accused. Thirdly, LH has had the opportunity to learn from other complainants about what they say happened to them both before the statement in 1998 and since. 450 Notwithstanding LH said in 1998 that she had difficulty separating the conduct of IW and Mr G from the conduct of the accused, the opportunity for contamination since that time, the improbability of memory improving, and that it that LH recalled details of the conduct of the accused which she might not previously have recalled, as I have said, LH impressed me as an honest witness when she gave her evidence. I am satisfied beyond a reasonable doubt she genuinely believes in the accuracy of her evidence and that she did her best to recall events accurately. I have no doubt LH was a truthful witness. 451 In my view, the real issue is whether LH is reliable in her evidence that the accused touched her vagina while she was in bed on more than one occasion. There is an aspect of LH’s evidence that is supported by the evidence of another witness. LH said that when she protested, the accused told her she would be separated from her sisters.458 That such a thing would be said by the accused finds support in the evidence of JS about what the accused said to her.459 452 I recognise the risk of contamination because of conversations both before and after the statement in 1998. I recognise the risk that LH, with knowledge of what others have alleged and/or as a result of abuse by another or others and/or 458 T193.22–23. 459 T577–T578. -- 129 of 170 -- [2024] SADC 75 Kimber J 128 due to the passage of time, LH might have come to believe that something occurred which did not. 453 LH said that she saw the accused masturbating ‘more than once’.460 I am not able to find that happened beyond a reasonable doubt on any occasion. I reject that LH might have lied about that, but I cannot discount the possibility that LH is unreliable about that, for the following reasons. No other complainant gave evidence that she saw the accused act in that way in their presence. In many cases, that might not be particularly important as the behaviour of an offender may not be the same with every complaint. Nevertheless, in this case that detail given by LH has additional significance. LH gave evidence that she was abused by IW. The evidence of DG is that IW would enter the bedroom, with no underwear on, with an erection and would lay on her and masturbate.461 That evidence is not the same as masturbating at the doorway, but, given that LH recalls being sexually assaulted by IW, it raises whether there is a risk of LH mistakenly attributing the conduct of IW to the accused. That I am not satisfied that LH is reliable about the accused masturbating in her presence must be borne in mind in evaluating whether I can be satisfied of other sexual acts beyond a reasonable doubt. 454 As set out above, LH appears to have given evidence of details surrounding the sexual conduct by the accused that she could not recall in 1998. It is obviously not the case that the memory of LH has improved over time. This might be consistent with LH recalling details which are not reliable memories. Commencing as early as the 1980’s, LH learned from other complainants something of what they say the accused did. I cannot exclude that information included touching of the vagina and that it occurred in the bedroom at night. The risk of imperfections in the memory of LH must also be considered bearing in mind that in 1998 she alleged being sexually abused by Mr G, but did not recall such abuse in evidence. 455 To find Count 2 proven beyond a reasonable doubt, I do not have to accept the whole of LH’s evidence of sexual acts by the accused beyond a reasonable doubt. What is necessary is satisfaction beyond a reasonable doubt of at least two occasions within the particulars of Count 2. I only need to be satisfied beyond a reasonable doubt of the general nature or character of those acts.462 456 LH gave her evidence in a straightforward fashion. LH was a credible witness. The propensity of the accused is a piece of circumstantial evidence which is consistent with the evidence of LH about being touched in a sexual way by the accused. Nevertheless, given what LH said in 1998; that her evidence is consistent with her recalling detail since 1998 that she did not recall in 1998; that I cannot exclude that she recalls the accused masturbating when that did not occur; and the 460 T194.5. 461 T155–T156. 462 Criminal Law Consolidation Act 1935 (SA) s 50(4)(b). -- 130 of 170 -- [2024] SADC 75 Kimber J 129 risk of innocent contamination; I am unable to find beyond a reasonable doubt that her vagina was touched in the way she described in evidence. 457 In reaching that view, I have not overlooked that LH gave evidence of sexual acts occurring long after the accused had commenced a relationship with SW and at houses at which only the accused lived. I recognise that weighs in favour of sufficient aspects of the evidence of the evidence of LH being reliable beyond a reasonable doubt. However, for the reasons I have given, in the case of LH, I have been left with a reasonable doubt. 458 While the evidence of LH has an underlying unity with the evidence of other complainants, in the case of LH, I am unable to exclude that underlying unity is the result of innocent contamination. 459 I find the accused not guilty of Count 2. JH–Counts 3 and 4 460 JH was born on 30 November 1965. JH regards the accused as her step-father. She first met him when she was approximately seven years of age.463 Count 3 461 JH said the accused touched her in a sexual way more than once.464 She said the first time was when her mother was in hospital after giving birth to her half-brother, SH. SH was born on 30 August 1978 and, on the evidence, by this time the family had been living in South Australia for some time. JH would have been 12 years of age. This is the occasion the subject of Count 3. 462 JH said the morning after SH was born, the accused asked her to make him a cup of tea. She did so and took it to his room. She was told to sit on the bed. The accused ‘ushered’ her to sit close.465 When JH was on the bed, the accused placed his hand under her legs and into the line of her underwear and ‘inside my knicker line’, to touch her there.466 She said he touched her down near her vagina.467 JH also told me ‘he did not go inside’ her underwear.468 She said the accused played with her breasts.469 The accused said to her, ‘do you like me touching you there’, ‘do you like me touching you’. JH said she replied that she did not.470 She said the accused then had her leave the room. 463 In its opening, the prosecution particularised the conduct the subject of Count 3 as being ‘the entire physical contact of the breasts and vagina’ and 463 T256.34. 464 T265.29 465 T266.23. 466 T267.10. 467 T266.38. 468 T267.14. 469 T267.1. 470 T267.16–17. -- 131 of 170 -- [2024] SADC 75 Kimber J 130 submitted that it would be enough to establish Count 3 if contact with either the vagina or breast was proven.471 However, in its closing address the prosecution elected to only rely upon the touching of the vagina.472 I will return to this. Count 4 464 JH told me about another occasion which is the subject of Count 4. JH placed this occasion a few days, or a couple of weeks, after the incident in the bedroom the subject of Count 3.473 She said she was in the rear of a car being driven by the accused. She was in the back seat along with RH. RH would have been about two years of age. JH and RH were misbehaving in the back seat of the car. JH said that the accused reached around and squeezed her hard between the legs, touching her vagina.474 JH told me she felt ‘he was going to do other stuff like he did in the room’ when she had taken the cup of tea to him.475 Other conduct of a possibly indecent nature 465 Apart from the two occasions the subject of Counts 3 and 4, JH described other conduct which might have been indecent. An aspect of her evidence was:476 Q I will finish asking you about that incident as well. Aside from those two occasions that you have told his Honour about were there any other times that you recall [the accused] touching you in a way that made you feel uncomfortable. A There was [sic] so many kids that there would be drinking and people messing around. Everybody would seem okay until later on but there was touching, playfully I suppose you would say. Mother wasn’t usually awake when any of this would go on. It was just touching. HIS HONOUR Q Touching you where. A It would be just like a grab like in the car incident and it would just be different times when it would be. Q It might seem obvious to you but I need to ask you, where specifically would he touch you. A Just be grabbed between the legs and just that. It depends on, like, what the game I suppose you would call it was and that but it would just be - I would like to say innocent touches but and it wasn’t something that was like ongoing. It wasn’t like when we were all just mucking about but I was very fearful after that. XN 471 T10.21–22. 472 T1011.4–T1012.12. 473 T269.23. 474 T271.2–3. 475 T270.6–7. 476 T271.31–T272.25. -- 132 of 170 -- [2024] SADC 75 Kimber J 131 Q You spoke about the playful touching to his Honour. Did the playful touching happen before the occasion in the bedroom that you told his Honour about or after. HIS HONOUR: Or both. XN Q Or both. A It would just happen because there was - the drinking was all the time. It was all the time. So, it would be just random times. I couldn’t tell you honestly where or which, where, I just know that it happened. 466 It is necessary to consider whether the touching just outlined was discreditable conduct. Whether it was must be evaluated given the whole of the evidence but also bearing in mind that JH described the touching as occurring ‘playfully’ and ‘during a game’. I am satisfied that any touching of the vagina of JH which occurred during a game or play was indecent and discreditable conduct. I reject that what JH described might have been accidental. I will only use that evidence to place the evidence of the alleged conduct the subject of Counts 3 and 4 into their proper context. The probative value of that evidence substantially outweighs any prejudicial effect it may have on the accused.477 I will not use that evidence to reason that the accused is a bad person and more likely to have committed any count.478 Inconsistent statements 467 JH has made inconsistent statements. Not all are significant to a proper evaluation of whether her evidence of Counts 3 and 4 have been proven beyond a reasonable doubt. 468 JH gave evidence that she saw the accused naked and being removed from the bed of MW. In 1998, JH gave a statement about that incident but did not give evidence of the accused being naked. JH said that SW had to drag the accused from MW or from her bed.479 I reject that difference as a matter relevant to the credibility or reliability of JH. JH said that she did not think it was relevant. I accept that explanation. While the state of the accused’s dress was important, what was more important was where the accused was and the response of SW. 469 JH said in her evidence the accused would come into bedrooms wearing a towel. JH did not dispute that while she had said in a statement in 1998 that the accused would come into her bedroom, she did not mention a towel being worn.480 In my view, the failure to mention a towel in 1998 has no significance in evaluating the credibility and reliability of JH about Counts 3 and 4. The important aspect of 477 Evidence Act 1929 (SA) s 34P(2)(a) before the amendments which came into force on 1 June 2022. See footnote [362] above. 478 Ibid s 34P(1). 479 T303. 480 T308–T309. -- 133 of 170 -- [2024] SADC 75 Kimber J 132 the statement in 1998 was the accused coming into her room, not how the accused was dressed. Further, JH did not say in the statement in 1998 that the accused was not dressed in a towel. 470 In addition, an aspect of the evidence of JH when asked about the failure to mention the accused wearing a towel was:481 Q I’m suggesting that you didn’t tell police, in September 1998, that when he came into the bedroom he was wearing a towel. Do you agree you didn’t tell police that he was wearing a towel in ‘98. A I don’t know, but I didn’t the read statement. But I do, can tell you this, because of the situation that I was in, I was made aware of the what they call the, I think it’s the statutes of limitations, is that right, and so I knew that anything that happened to me didn’t matter. So it didn’t really matter what happened to me, so - I’m sorry, you might have left something out, or I didn’t get it right. 471 The reference to the ‘statutes of limitations’ was a reference to any allegation of a sexual nature made by JH in 1998 not being able to be prosecuted at that time because of the law then. The relevant prohibition has since been removed.482 472 I accept the evidence of JH to the effect that how careful she was about checking the statement in 1998 might have been influenced by anything that occurred to her of a sexual nature not being able to be prosecuted. That explanation is not unlikely and I accept it. 473 The accused submits that in a second statement given in 1998, JH said for the first time that the accused had come into her bedroom hundreds of times. I am not satisfied that an inconsistent statement was clearly established. The evidence was that JH could not recall what she had said in the relevant statement on that topic483 and later gave the following evidence:484 Q You didn’t mention that in this 1998 statement, about him coming into the bedroom on hundreds of occasions did you. A I don’t know, probably not. 474 In any event, assuming an inconsistent statement was made, I do not regard it as important. The evidence of JH was that the accused would come into rooms at night time and that it was common. In the circumstances, assuming that there was a prior statement about ‘hundreds of occasions’, I would not treat that as a precise estimate as opposed to it being a way to describe something being frequent or commonplace. I will set out the evidence of JH in some detail. JH said:485 481 T309.10–21. 482 See Criminal Law Consolidation (Abolition of Time Limit for Prosecution of Certain Sexual Offences) Amendment Act 2003 (SA). 483 T313. 484 T314.6–9. 485 T283.8–T285.11. -- 134 of 170 -- [2024] SADC 75 Kimber J 133 Q What did he do when he’d come into other rooms of a night. A He would come to the door and he would be rugged up and squeezed up and he would come and stand in the doorway. You could see, like, the silhouette outline of him and smell him and that and you just knew that something was going to happen. Q What do you mean by that, you knew that something was going to happen. A Because I’d seen him so many times, like, going around the house with nothing on or just the towel on around, like, the beds and sometimes he would just stand above you and he’d be looking. You’d be trying to - trying to make like I was asleep and I feel bad now because he would just walk on to the next bed. A Which of the houses - HER HONOUR [sic] Q You take your time, [JH]. A I don’t remember any of the houses that this sort of thing didn’t happen. Q You told us there were times when you saw him, a silhouette in the doorway. Can you just tell me what would happen, if anything, after you’d see the silhouette in the doorway. A I can’t remember if it was at the Hallett house, but he’d [sic] standing there and this time there was a towel on him, and I was making like I’m asleep, I’m like cuddled right under the covers and holding on tight (INDICATES), and he’d stand by the bed and then went to the other bed, and I’m trying to think which one of my sisters was in it, but he sat on the bed and there was still some light actually coming into the room, the bedroom light wasn’t on, but there was light from maybe the kitchen or whatever. But he sat on the bed and pulled the covers off of, off of her, I think it was, it was [JS] or [CB] - I think it was [CB] - I don’t want to get anything wrong, I’m sorry. Q Could you actually see what if anything he did once he was sitting on the bed or not. A I didn’t understand at the time, but he would pull the covers off and was just sitting there, I couldn’t see what was he was doing, and then he was like bent, like over at her, just (INDICATES). Q Was this just one time this happened or - A That I seen that. Q Just one time. A That I seen that. I’ve seen him walking around the houses and stalking around the beds and that numerous times. Q You said that when he came over to your bed you pulled the sheets up. A No, they were already up. Q They were already up, sorry. -- 135 of 170 -- [2024] SADC 75 Kimber J 134 A Already up, I had layers on and already (INDICATES), yeah. Q My mistake, my fault. A Yeah - Q You tell me what if anything you did when he came into the room, and before you saw him going to the other girls’ bed, what did you do. A Because he - that was the time that I’d slipped under the bed, I hid under the bed, because he didn’t come straight into the room. Q Why did you do that. A Because I was scared. Q Scared of what. A Of him coming to me and doing things to me. I’ve hid in the cupboards and I’ve hid in various places. And now I feel bad because I sent him to my sisters. 475 It is an agreed fact that JH did not say in a statement given in 1998 that the accused had come into her room and stood by her bed and that she had not used the word ‘silhouette’ in that statement.486 I do not consider the failure to use that particular word as significant. It is just a different way of describing the appearance of the accused at particular times. 476 However, the failure to mention the accused stood by her bed does have significance in evaluating the credibility and reliability of JH about Counts 3 and 4 as it was a failure to mention an aspect of the behaviour of the accused which might have particularly related to her. However, that failure does not cause me to doubt JH with respect to Count 3 or 4 as JH was not claiming in her statement in 1998, nor in her evidence, that the accused assaulted her when he stood by her bed. That the accused did not touch her is an obvious explanation for why that detail was not included in a statement in 1998. Further, the conduct the subject of both Counts 3 and 4 is alleged to have occurred in very different circumstances. 477 In evidence, JH said that she did not get her sisters together for the meeting which occurred in 1997 or 1998. It is an agreed fact that in a statement given in 1998 JH said ‘I got my sisters together’.487 The evidence that JH gave about events in 1997 or 1998 included:488 XXN Q You’ve told us that police came out and spoke to you about Scott Fowler’s matter and it was after that or at that point that you then spoke to police about the [the accused’s] matter, right. 486 Exhibit D6, Agreed Facts IV, Agreed Fact 3. 487 Ibid Agreed Fact 4. 488 T325.2–T327.38. -- 136 of 170 -- [2024] SADC 75 Kimber J 135 A Not at Sedan, it was in the Barossa. Q But you agree with me, that’s how it went; you were contacted by police and then you decided that you would speak to them about the [the accused’s] matter. A I was just wondering what was going on and what - if it mattered what happened to me. Q So is it the case that you got your sisters together. A No. Q Did you have a meeting with your siblings, I’m talking in about 1997 or the end of 1997. A We went out to my sister’s farm. Q Is that [DG’s]. A Yes. Q And is it the case that you got your sisters together. A I told my sister that we needed to talk. I was worried. I was worried about [CB]. Q So you got your sisters together. A I didn’t get them together. Q Did you tell police back in 1998 in your first statement ‘I got my sisters together’. A I don’t know if I told them that or not. Is it in the statement? Q I suggest it’s in your statement but you can have a look, if you like. A I was just worried about [CB] at the time, not just [CB] but my sisters. We were all spiralling out of control. I was concerned for them and with what [CB] had told me - with what [CB] had told me, I was really concerned about her. I didn’t know what to do. Q So is it the case, is it true that you got your sisters together and you decided, the lot of you, that it was time to come forward and report the matter. A Not all of them were there. I can’t even remember, like - I don’t think [LH] was there. I don’t remember exactly who was there but I was concerned because of what [CB] had told me. I was worried, extremely worried about her welfare. Q I’m not asking you why you did anything at the moment, I’m just asking what you did. So you got your sisters together, is that true. A I don’t know - no. We met at - we did go to [DG’s] but we do that. HIS HONOUR Q Whose idea was it to meet at [DG’s], if you know. -- 137 of 170 -- [2024] SADC 75 Kimber J 136 A I don’t know, it wasn’t an idea. I spoke to [DG] and told her that I was really worried - I was really involved with the other stuff and I didn’t know what to do and I knew that [CB] was - a number of them we [sic] spiralling out of control and I was worried about their wellbeing and I didn’t know how to handle things, so I rang [DG] and we got together up there to have a chat about things. We just wanted to make sure they were alright. Q Did you contact anyone to see if they wanted to come out to [DG’s] farm. A No, I don’t know if [DG] rang or if I did, yeah. - [CB], I think - I told [CB] I was extremely worried about her. Q Did you tell [CB] there would be a meeting at [DG’s] farm. A It wasn’t a meeting, it was a - just a - we wanted to talk about things. I was worried because of what [CB] had told me and she hasn’t been in yet so she will probably tell you. XXN Q Was it you who had the idea to get everyone together about this. A No, there was no idea. There was no idea. I know that you have suggested that this is a conspiracy but it’s not, we are telling you the truth. I am telling you the truth. Q Who has suggested it’s a conspiracy. A Well, it sounds like what you are saying. Q Has someone said that - A I’m not - I’m not - I haven’t had much schooling but I’m not stupid. Q I don’t suggest that, I don’t suggest you’re stupid but what I’m wanting to know is who said to you something about a conspiracy. A It sounded like you are suggesting it to me. Q What I’m asking at the moment is about a get-together or meeting of your siblings. A We usually always get-together and have meetings - not meetings, get-togethers or whatever you call them. [DG’s] farm was one that we’d go to. She’s got motorbikes and horses. Q Just before we move on; I understand you think I’m suggesting a conspiracy but has someone else talked to you about the idea of a conspiracy or that that’s what the defence might suggest. A Somebody did mention that with us all being together we don’t want to look like we’re conspiring. Q Who suggested that or who said that. A The police have told us not to talk about it to each other and we don’t. We don’t talk about it to each other. -- 138 of 170 -- [2024] SADC 75 Kimber J 137 Q When were you told that. You. A Somewhere along the lines with - like, during - throughout this. We’ve been told and even just when we left the room there we were told not to talk about it. It’s not what we’re talking about out there. It’s not what we’re talking about. Q Are you concerned that you might get into trouble if you were talking about it. A I’m not worried about that at all because I’m telling you the truth. I’m telling you the truth. I promise you I am. 478 JH gave evidence that she had told DG that ‘we needed to talk’ and said that she was concerned about more than one sister ‘spiralling out of control’. In my view, any difference between that evidence and the out of court statement that she ‘got her sisters together’ is not significant to the credibility and reliability of JH about the conduct alleged in Counts 3 and 4. The evidence of JH and her out of court statement are both consistent with JH playing a part in the meeting taking place. I reject that the statements are inconsistent in any way which is material to the honesty and reliability of JH about Counts 3 and 4. 479 JH also said that she did not know if she made phone calls before the meeting. I do not consider whether DG arranged the meeting or whether JH suggested it to DG who then arranged it has any significance in evaluating the credibility or reliability of JH about Count 3 or 4. I am satisfied that any differences in how any meeting was arranged are differences about matters which are peripheral and the natural consequence of memories differing after many years about matters which are not important. 480 The accused submitted that JH might be doubted because JH said to the cross-examiner ‘I know that you have suggested that this is a conspiracy’.489 The accused submitted that JH might be doubted because she was ‘combative’ at that point in her evidence. I reject that JH was ‘combative’. Throughout her evidence, JH struck me as the opposite of combative. She was nervous and anxious throughout. Far from being combative, she struck me as a timid woman who lacked confidence in a setting unfamiliar to her (i.e. – in the witness box). In my view, JH was simply showing a degree of frustration at being cross-examined about a meeting held, at least in part, because she had concerns about the welfare of a sister. JH is a timid woman, but not so much so that she was unable to appreciate that she might be criticised for a meeting with her siblings about the conduct of the accused and to be taken aback by the suggestion that she might lie. As JH said, the police had said that they should not talk.490 481 Also relevant in this context is that the accused submitted that JH might be unreliable because, without being asked, she volunteered that her children did not 489 T326.38. 490 T327.25–27. -- 139 of 170 -- [2024] SADC 75 Kimber J 138 sleep over at the home of the accused. In the context of being asked about a conversation with RH, JH gave evidence about where she was living and said:491 Q Can I ask you this, do you know whether [RH] was still living at home with [the accused] and [SW] at that time. A Yes, he was. Q Which place in Snowtown are you talking about. A I used to live in a little cottage house on the corner, I can’t remember the name street name of that place, it that was just me and my two girls. Q Sorry, I misled you, when - A It was just me and my two girls, [A] and [N]. Q Where were [the accused], [SW] and [RH] living though. A They were living out on the farm. My children never, never had a sleepover at nanna’s. Q But they were living at a farm in Snowtown were they. A Yes, they were living at the farm. 482 I accept that the reference to the children of JH never having a sleepover was not responsive. I accept that, before giving that evidence, JH believed she might be asked about children having contact with the accused. By this point, LH had been asked about that492 and some conversation with LH is the obvious explanation for why JH gave evidence about her children. 483 It is undesirable for witnesses to discuss their evidence. It gives rise to a possibility of contamination and provides an opportunity for collusion. Witnesses discussing evidence can undermine credibility and reliability. This is even more so when witnesses have been told by a police officer that they should not talk and, I would infer, have been told they cannot be in court before giving evidence. Nevertheless, despite what witnesses are told, it is not unnatural that such conversations might occur when witnesses know one another. As it is not unnatural, it will not always be adverse to reliability or credibility. In this particular instance, I reject that it gives rise to a possibility of unreliability or a possibility of an absence of credit. The real issue is the credibility and reliability of the evidence of sexual assault. I reject that JH gave evidence of being sexually assaulted because of something said to her about evidence given by another complainant. Throughout her evidence, JH impressed me as a witness only wishing to give accurate evidence of what she believed to be true. 491 T286.5–18. 492 T246.33–T247.33. -- 140 of 170 -- [2024] SADC 75 Kimber J 139 484 While I will not overlook the inconsistent statements that I have referred to as significant, in my view, the most significant matter is that there is no doubt that JH has been aware for more than two decades that other siblings have made sexual allegations about the accused. There is no doubt that JH is aware of at least some of what some complainants have alleged about the accused of a sexual nature. As with all complainants, it is not possible to identify with precision what has been discussed. There has been more than one opportunity and the opportunities commenced with at least some complainants, including JH, in the 1980’s. In my view, that discussions took place does not reflect poorly upon JH or any other complainant involved. It is natural that members of the same family will discuss what they say happened to them or what they believe happened to others. However, as with all complainants (other than DA), there is a real need to consider the risks of innocent contamination and concoction. 485 The accused submitted that JH might be doubted because she said that she had ‘remembered more things’ over the last few years.493 I do not consider that evidence might cause me to doubt JH. JH explained that this occurred as a result of speaking to the police and others. It is not unlikely that a person will recall things as a result of speaking to people. The mere need to reflect as a result of being asked about a topic may cause something to be remembered which had hitherto been confined to the past. It is also significant that JH did not say that what had been remembered in more recent times was the conduct the subject of Counts 3 and 4. Further discussion 486 JH was a very anxious and timid witness. She was emotional throughout almost the whole of her evidence. Having considered her evidence, and the way she gave it, and despite the inconsistent statements, I formed the clear impression that she was an honest witness. I reject that JH might have lied in her evidence, notwithstanding that the accused submitted that JH having done that could not be excluded. Throughout her evidence, JH impressed me as someone who was committed to only saying what she believed to be the truth. I accept that she has been concerned for at least some of her sisters, but that concern is not inconsistent with her being an honest witness. I reject that JH lied in order to support any other complainant. 487 I will commence with Count 4, because there are specific issues which arise with respect to that count. 488 Unlike Count 3 it is necessary to consider whether Count 4 might have been misconstrued, particularly as it came after the conduct the subject of Count 3 and possibly after the uncharged conduct I have earlier set out. There does not appear to be any dispute on the evidence that both JH and RH might have needed to have been controlled in the back seat. The car was moving. RH was ‘mucking around with the window or the door’ and JH did not know ‘whether he was going to open 493 T340.14. -- 141 of 170 -- [2024] SADC 75 Kimber J 140 up the doors’.494 JH told me that she had leant across to the door handle or the window495 and it was at that point the accused committed the act the subject of Count 4. The conduct of RH and JH might have caused any driver to want to control JH and RH. In addition, JH told me the front seat was a bench seat. This would have made it difficult, but not impossible, to deliberately touch JH on the vagina while she was in the rear and the accused was driving. I recognise that if the accused said ‘I know how to keep you in line’496 at about the time that he committed the act, that might suggest that any touching of the vagina was both deliberate and indecent, but that is not the only explanation for that being said. In any event, given the passage of time, I am unable to be satisfied those words were said. I am unable to exclude that JH has come to believe those words were said even though they may not have been. 489 In all the circumstances, I am not satisfied beyond a reasonable doubt that the accused deliberately touched the vagina of JH on the occasion of Count 4. I am unable to exclude as a reasonable possibility that JH, after many years, has misconstrued, or misremembered, an event that was not a deliberate touching of her vagina, perhaps because the accused did that on other occasions under the cover of a game. Using the propensity of the accused as a piece of circumstantial evidence has not resolved the reasonable doubt that I have. That doubt would also not be resolved even were I to assume that the evidence of another complainant(s) meant that the evidence should be used on the grounds of improbability reasoning. Even were I to reason in that way, I would still be left with a doubt that the conduct the subject of Count 4 included a deliberate touching of the vagina given the risk of a specific occasion occurring as described being inaccurately recalled after such a long time given other similar conduct. 490 The doubt that I have is also not resolved once Count 3 is considered. For reasons to be given, I am satisfied beyond a reasonable doubt that during the incident the subject of Count 3 the accused touched the breasts of LH and, at least, attempted to touch her vagina. Consideration of that evidence might explain why the accused made the comment JH says was made; might explain why JH did not complain of the act the subject of Count 4; and why the accused believed he could commit the act without complaint. Nevertheless, I have still been left with a reasonable doubt about whether there was a deliberate touching of the vagina for the reasons I have given. 491 I find the accused not guilty of Count 4. 492 Consistent with what I have set out above, my reasonable doubt about Count 4 is not because I believe JH might have deliberately misled me. I reject that possibility. I have no doubt she believes her evidence of what occurred in the car. 494 T297.22–24. 495 T298.6–8. 496 T298.12–13. -- 142 of 170 -- [2024] SADC 75 Kimber J 141 493 That JH might be mistaken about the incident in the car and for the reasons I have given, is relevant to my evaluation of Count 3. It is demonstrative of the risk of an unreliable memory with respect to an event after such a long period of time. 494 Having made that observation, the evidence the subject of Count 3 is materially different to the evidence the subject of Count 4. In relation to Count 3, JH told me she was encouraged to sit on the bed. An aspect of the evidence of JH was that the accused placed his finger into, or near, the line of her underwear, touched her breasts and asked her whether she liked what he was doing. Given her evidence, I reject any risk of JH having misconstrued an innocent event and reject any risk that JH has an imperfect memory because of the touching of her vagina during games. 495 While nervous and anxious, as I have said, JH struck me as an honest witness. I am satisfied beyond a reasonable doubt that JH did not invent her evidence of Count 3. I reject any possibility that the detail that she gave about that incident was an account that she knew to be false. In my view, the real issue in Count 3 is the reliability of JH. 496 I reject JH might have invented or imagined how she felt during the incident. She told me that she was ‘terrified’497 and that she did not want to get into trouble. Her response to why she did not want to get into trouble had a distinct ring of truth. She said, ‘If you could have seen what it was like being there, I just didn’t want to get into trouble, he would get the cord’.498 I accept that as a truthful and reliable account of how she felt. I reject any reasonable possibility that explanation has been invented or imagined. 497 As set out earlier, JH gave evidence of what the accused said during the incident. Notwithstanding the passage of time and the very real risk of recalling inaccurately what was said such a long time ago, I reject that JH might have imagined or invented at least the effect of what the accused said. I am satisfied beyond a reasonable doubt that detail was a reliable and truthful account of at least the effect of what the accused said. The evidence of JH left me with the overwhelming impression of a witness describing an event which had occurred. The way she described what the accused did and how she reacted leaves me satisfied beyond a reasonable doubt that what was being described by JH in her evidence was an event that happened. 498 I am satisfied beyond a reasonable doubt the accused touched JH on her breasts on this occasion. I am not satisfied beyond a reasonable doubt that he went so far as to touch her on the vagina (i.e. – on the labia majora). The evidence of JH was as follows:499 497 T267–T268. 498 T268.6–8. 499 T266.19–T267.20. -- 143 of 170 -- [2024] SADC 75 Kimber J 142 Q Right, now just tell me slowly, take your time. When you took him the cup of tea tell us everything that you can remember happening. A I put the tea down and he told me to sit on the bed, and the sheet was over him, and he like ushered me close to him, got me to sit close, and he was putting his hands under my legs and I was squeezing my legs together and he - Q Take your time. A felt like he was going to, he was putting his fingers into my knicker line, to touch me there, and I was just trying to squeeze my legs together and we were done then it was - then he was playing with my breasts. Q Take a breath. What happened if anything after that, after he touched you on your breasts. A He was just fondling me, and doing what he was doing under the sheet, and then he just kicked me out of the room. Q Where did he fondle you. A He started touching me down near my vagina and then he moved his hands up and was just over my breasts, just playing with them. Q Did he actually touch your vagina, or did he just touch near your vagina. A He didn’t get inside of me. Q Did he touch your vagina at all, don’t worry about whether it was inside or outside. A I don’t know where the, I don’t understand where you mean? Like what - run his fingers inside like the knickers, inside my knicker line and that, but I was so tense and then the other thing I know it was just weird. Q Did you just say that his fingers were inside your knickers. A He kept - yes, but not - he did not go inside them, he didn’t - and he kept on asking me, ‘Do you like me touching you there’, ‘Do you like me touching you’, he kept on asking me that and I didn’t. Q I think you said a minute ago that at some point you left the room. A When he was finished. (emphasis added) 499 Having considered the above evidence, and bearing in mind the onus of proof, there is some uncertainty in the evidence about whether the vagina was touched, either over, or under, the underwear. I am not satisfied that the evidence of JH was that the accused placed a finger inside her underwear. The evidence of JH that ‘[the accused] did not go inside them, he didn’t’ may have been a reference to an absence of touching ‘inside’ the outer lips of her vagina but I am unable to discount that it was JH expressing uncertainty about whether a finger had gone inside the line of her underwear. In my view, JH did not give evidence which -- 144 of 170 -- [2024] SADC 75 Kimber J 143 permits a finding beyond a reasonable doubt that her vagina was touched over her underwear. In the circumstances, I am not satisfied beyond a reasonable doubt that the vagina of JH was touched on the occasion of Count 3. 500 As set out above, in its opening, the prosecution particularised Count 3 as a single occasion that involved touching of the breast and vagina but submitted that proof of either would be sufficient. Despite the evidence being that all relevant touching took place as part of a single incident, a very different approach was taken in the prosecution closing when an election was made about the conduct the subject of Count 3 being the touching of the vagina. 501 I am satisfied beyond a reasonable doubt that what JH described in her evidence was a single incident during which her breasts were touched and the accused also touched JH near her vagina. There is no doubt that the touching of the breasts which I am satisfied beyond a reasonable doubt took place was indecent. To prove Count 3, I reject that, because of what was said in its opening address, the prosecution must prove both a touching of the breasts and the vagina. There is no prejudice to the accused in that approach. In its opening, the prosecution foreshadowed electing. On the evidence, this was a single incident. The trial was conducted on the basis that there was no touching of a sexual nature as alleged by JH. When JH was cross-examined, it was put that JH had not been touched in a sexual way on the occasion the subject of Count 3.500 In closing submissions, the accused did not submit that he might have conducted his case differently if the election had been made earlier. At the same time, the prosecution chose to elect in the way that it did. The prosecution should be held to the course it chose to adopt. 502 As earlier mentioned, different views have arguably been expressed about whether an uncharged indecent assault (i.e. – the touching on the breast) and another indecent assault which occurs as part of the same incident (i.e. – the alleged touching of the vagina) means that the uncharged indecent assault is discreditable conduct which engages s 34P of the Evidence Act 1929 (SA).501 In my view, s 34P is not engaged as it is a single incident and the judgment in which a different view was expressed can be distinguished. However, no submissions were made on that question and it is not necessary to decide. For the avoidance of doubt, I will treat the touching of the breasts as discreditable conduct. That evidence is only admissible to put the balance of JH’s evidence about what was a single incident into its proper context and has no other use.502 The touching of the breasts cannot be used to suggest that the accused is a bad person and more likely to have committed the act the subject of the prosecution’s election because he engaged in discreditable conduct.503 500 T296.17–28. 501 R v Crafter [2019] SASCFC 25 [46]–[47], [125]. 502 Evidence Act 1929 (SA) s 34P(2)(a). See footnote [362] above. 503 Ibid s 34P(1). -- 145 of 170 -- [2024] SADC 75 Kimber J 144 Attempted Indecent Assault 503 I turn to whether the accused should be found guilty of an attempted indecent assault on the basis that he attempted to touch the vagina of JH. The accused was given the opportunity to make submissions about this alternative and relied upon submissions already made.504 504 I am satisfied beyond a reasonable doubt that the accused touched JH near her vagina but that she resisted by squeezing her legs together. I am satisfied beyond a reasonable doubt the touching was, at least, very close to the line of JH’s underwear. This is so notwithstanding I have a reasonable doubt about whether the vagina of JS was in fact touched either over, or under, the underwear. 505 I am satisfied beyond a reasonable doubt that the accused intended to touch JH’s vagina and that the touching very close to the line of the underwear was not merely preparatory to the intended touching of the vagina but was immediately connected to the completed offence. There is no doubt that the act occurred in South Australia. With respect to Count 3, I find the accused guilty of an Attempted Indecent Assault. 506 In reaching that verdict, I have not found it necessary to use in any way what any other complainant has said about sexual abuse of them by the accused to support the evidence of JH. I have not used the propensity of the accused. I have not engaged in improbability reasoning. JP–Count 5 507 JP gave evidence that she was sexually abused by the accused on one occasion. That occasion is the subject of Count 5. In the prosecution opening, this was identified as a touching on the vagina.505 JP said that she could not recall any other occasion of sexual abuse.506 Count 5 508 At one point in her evidence, JP placed the occasion of sexual abuse on the night of a party to celebrate her 15th birthday.507 JP later said that the birthday was her 15th or 16th.508 On the occasion the subject of Count 5, JP drank alcohol and became affected. Her head was spinning, and she felt ‘giddy’.509 She went to lie down in her bedroom. She changed into her pyjamas. She said that she ‘thinks’ she passed out on the bed.510 She told me her next memory was waking up to someone with their fingers in her vagina. When she woke, the person removed 504 T1070–T1071. 505 T11.2–7. 506 T379.37. 507 T374.32. 508 T398. 509 T376.3. 510 T376.24. -- 146 of 170 -- [2024] SADC 75 Kimber J 145 their fingers and left the room. She said it was the accused. She said she was able to see him as he walked out of the door. There were lights in the hall.511 509 JP said she did not say anything to the accused as she was ‘in shock and scared’ because of what had happened.512 JP said she was ‘pretty sure’ CB was in the room in her own bed at the time.513 JP left the room to go to the toilet to see if her older sister SDH was awake, but she was asleep. She went back to bed.514 JP told me she did not say anything about what had happened. She said:515 A I was scared. Q What was it that you were scared of. A Well it’s a bit like - nothing was ever spoken about, ever. You’d just get up in the morning and go around your business like there’s another day again. Q Did you say ‘It looked like another day again’. A Yes. Other aspects of JP’s evidence 510 JP told me about other occasions on which she saw the accused in a bedroom she was in. She said this occurred at more than one house in South Australia. She said:516 Q After you’d gone to bed of a [sic] night, did you ever see someone come into the room. A Yes. Q Who did you see. A [The accused]. Q Do you have a specific memory of seeing him come into the room now. A Again you’re talking about something that happens on a regular basis, it just becomes like you don’t realise there’s anything abnormal with it, so. I’ve seen plenty of times that he’s come into the room with me being in there and not approached my bed, but has approached one of my sister’s bed. Q Which sisters, if you can you say. A Generally [CB] or [JH] I’d share a room with. 511 T377.13. 512 T378.11. 513 T378.18. 514 T378.27–28. 515 T379.1–7. 516 T380.20–38. -- 147 of 170 -- [2024] SADC 75 Kimber J 146 Q Did you see him approach either of their beds. A Yes. Q Which one, or both. A Both, on different occasions. 511 JP said it would be dark in the room and when at the bed of a sister, JP could not see anything. She said she would ‘Freeze, freeze and curl into a ball and sweat’.517 She did not claim to see the accused approach the bed of anyone but that of CB and JH.518 JH did not give evidence of being sexually abused in a bedroom at night in the presence of another nor of seeing the accused approach the bed of another. CB said that sexual assaults of her only ever happened when she was in a bed on her own. CB said that bedrooms were shared and rooms would sometimes be swapped.519 CB did not give evidence of seeing the accused approach the bed of another complainant at night. A summary of the submissions of the accused 512 JP has made prior inconsistent statements. 513 When she gave a statement in 1998, JP said the occasion she was touched in her bedroom was her 16th birthday.520 I am satisfied that any inconsistency about exactly which birthday is not a matter adverse to JP being credible and reliable with respect to the conduct the subject of Count 5. If the sexual act occurred, it is not surprising that, after such a long time, JP might be uncertain about the precise birthday. Further, while JP said in evidence-in-chief it was her 15th birthday,521 before the prior inconsistent statement was brought to her attention, she said in cross-examination that it was: ‘either my 15th or 16th, I think my 15th’.522 I am satisfied what stood out in her mind was it was the occasion of a birthday party, rather than precisely which one. 514 In a statement given in 1998, JP did not identify the person who came into her bedroom at the time of the incident the subject of the charge. Among what she said in 1998 was that she saw the silhouette of an adult male, the only males at the house being the accused and Mr Doug Hallett. The following exchange occurred in cross-examination about what she had said in 1998 and her explanation:523 Q Back in ‘98, when you talked about that one occasion and I’m just going to call it the one occasion, the birthday occasion I’ll call it. 517 T382.25. 518 T382.31. 519 T441–T442. 520 T398. 521 T374.32. 522 T398.19. 523 T404.5–29. -- 148 of 170 -- [2024] SADC 75 Kimber J 147 A Okay. Q You talked about the birthday occasion, but you didn’t say who it was that came into your bedroom, did you. A No, I didn’t. Q What you did was to call it ‘This person came into the bedroom’. A Yes, I did. Q You said that you remember seeing the silhouette of an adult male person. A Yes. Q And ‘The only males throughout the house at the time were Doug and [the accused]’ you said that. A Yes. Q And you said ‘The only other thing that I can recall about the person who I had disturbed in the bedroom was that it was definitely an adult male person and that they had a strong smell of alcohol and smoke on them’. A Yes. Q But you didn’t say it was [the accused]. A I did say just before, I was still intimidated and still tormented to be able to say that it was [the accused] and I suppressed back then the information from then. 515 This inconsistency is significant in assessing JP’s credibility and reliability. 516 For the reasons given, I accept Mr Doug Hallett’s evidence that he: saw the accused sexually assaulting JS; was concerned by what he saw and there was then discussion about what he had seen. That he raised what he saw with others does not sit comfortably with him doing the same to JP. I reject that Mr Doug Hallett might have sexually assaulted JP. That said, the statement given in 1998 is not evidence that the accused and Mr Doug Hallett were the only adult males in the house. 517 In her statement in 1998, JP did not say she had been touched inside of her vagina. She said she could not recall whether it had been the inside, or outside.524 JP gave the following evidence:525 Q I suggest that back in 1998 what you said was ‘I can’t recall whether this person was touching me on the inside or the outside of my vagina’. A Yes. 524 T404–T405. 525 T404.38–T406.5. -- 149 of 170 -- [2024] SADC 75 Kimber J 148 Q Has your memory improved since then. A Like I said, I was still traumatised back then to say that - what he was doing. It’s not a very easy thing to come out and say to anyone. So under the circumstances I was still a lot younger and not as strong as what I am today and I said that, yes. I did suppress it and I didn’t come forward with it because I didn’t like to say it. Q But you had come forward to give a statement, a signed statement to police about it, hadn’t you. A Yes. Q And at that time were you doing your best to say truthfully and - A I’ve always been truthfully, I just suppressed that back then. Q Do you say that at some point that became unsuppressed. HIS HONOUR. Q What do you mean by - A What do you mean, sorry? HIS HONOUR Q What do you mean by ‘suppressed’, [JP]. HIS HONOUR: I think, Ms Abbey, she gave an earlier explanation. A It’s very hard to come out and say that. It’s very hard as victims to come out and say that that - he’s meant to be my father-figure, has done that kind of like behaviour towards you. HIS HONOUR Q Back in 1998 - A Yes. Q - when you gave this statement, did you deliberately decide to not say who it was, or was it something else that stopped you from doing that. A I think it was the - still, like a - you just didn’t - it was very hard to be able to come out and say, like to describe that situation in the first place and I knew it was [the accused] and it was just, I just couldn’t come forth and say it, but I certainly haven’t - I know it was him. And yes, I think probably still been intimidated back in 1998, it was a long time ago sir. 518 This inconsistency must be placed in context. The act the subject of Count 5 is a touching on the vagina. The prior statement is not inconsistent with that. That said, it is a material difference in the descriptions of what are said to be the same incident. It has not caused me to doubt JP’s honesty and reliability about having been touched on the vagina as alleged in Count 5, but I would be unable to be -- 150 of 170 -- [2024] SADC 75 Kimber J 149 satisfied that any touching was on the inside of the vagina as JP described in evidence. 519 As for JP’s failure to identify the accused as responsible in 1998, when JP gave evidence about how she felt in 1998 about talking about what the accused had done, her explanation struck me as genuine and not something invented or imagined. Given the evidence above, I am satisfied that JP used the word ‘suppressed’ to explain that she found it hard to talk about the incident in 1998. I am satisfied this includes finding it hard to implicate the accused as the person responsible. It is not unlikely that JP would find it difficult to say that the accused was responsible even if she knew others had made allegations of a sexual nature against the accused. The accused was the father figure in her life. It is not unlikely that a victim of a sexual offence might take time before they wish to disclose that an important figure in their life has taken advantage of them in an intensely personal way. 520 In her statement in 1998, JP did not allege seeing the accused approach the bed of any sister. She said:526 A No, I didn’t. I did think one, I was still not giving a full complete statement back in 1998 and two, I wasn’t - I wouldn’t - I thought it was irrelevant. 521 This is an important omission, relevant to credibility and reliability. In evidence, JP was clear about what she says she saw of the accused approaching the beds of CB and JH. I will return to this. 522 The accused also directed attention to JP having said both in evidence and in a statement given in 1998 that she had followed Mr Michael H (the husband of LH) into a bedroom and had seen her mother tied up. JP gave the following evidence:527 Q Was there an occasion where you say you and Michael walked into a bedroom. A Myself and Michael? Q Yes. A I don’t recall that. Q You walked into a bedroom and [the accused], or [the accused] rather, and your mother were in there. A I don’t recall that at all. Q I suggest that, in your first statement to police, that one in January 1998, you said ‘Michael [H] was my older sister [LH’s] boyfriend and he was over visiting us’. 526 T409.25–27. 527 T414.12–T415.32. -- 151 of 170 -- [2024] SADC 75 Kimber J 150 A Yes, was that at Farrell Flat? Q Yes. A Yes, yes. Sorry. That was one thing I haven’t thought about for a while. That was at Farrell Flat. We walked into the bedroom and there was a fight, they’d been fighting and mum was naked, tied up. I think that was the one. Q So is it the case that you told police that you had seen Michael go into the bedroom and that you followed almost immediately behind and then you told police what you saw in the bedroom. A That one is a bit vague on me. The 1998 report was very - I haven’t - that was again I - I think it was the occasion that mum was tied up on the bed. Yeah, yeah. And there’d been a lot of arguing and carrying on that night. Q And you told police that you saw your mother lying on the bed naked and the sheets from the bed had been ripped up. A Had been ripped and tied up. Q ‘And [the accused] had used these sheets to tie my mother up’. A Yep. Q You agree you said that. A Yes. Q I suggest that that didn’t happen, you didn’t see that, what do you say. A I did see that. It wasn’t something that was - in that 1998, like I said, it was a lot of times and a lot of different things that had happened so when - you’re jumping from pillar to post too, you’re taking me from 2017 back to ‘98, it’s a long distance, and a lot of things have happened in between that. Yes, I do remember saying that to - in that report, yes. Q Do you say that that’s what happened. A Yes. Q Do you say it was true. A Yes. Q And do you, now that you’ve had a minute to catch up, because I agree - A Yes, yes, back to that year, yes. Q - I’m jumping you around. A You are. Q Quite right, but now you’ve had a minute to catch up, do you still have a clear memory of that now. -- 152 of 170 -- [2024] SADC 75 Kimber J 151 A Yes. Q Very clear. A Yes. 523 It is an agreed fact that had he been called as a witness Mr Michael H would have said that he had never walked into a room and seen what JP described happening to her mother.528 I have a concern about the appropriateness of agreeing a fact in terms of what a witness would have said rather than calling the witness, particularly when there is no suggestion the witness is not available to give evidence. The agreed fact leaves open a possibility that what he would have said is unreliable or not the truth. I am not able to evaluate those possibilities in the same way as would have occurred had Mr Michael H given evidence on the topic. Nevertheless, I will treat the agreed fact as establishing an inconsistency with the evidence of JP. This approach is essential as the prosecution agreed the fact about what Mr Michael H would have said. Whatever the merit of my concern, given what has been agreed, I must not take an approach which might be unfair to the accused. I will return to this. 524 JP was cross-examined about whether she had told police about having ‘flashbacks’. JP was asked about a statement given in February 2019:529 Q One of them was given on 17 February 2019, does that sound about right. A Yes. Q You were talking to Senior Constable Bentley, of Murray Bridge police. A Yes. Q What you said was that when you gave that first statement, or earlier statement, you had been suffering from flashbacks. A From flashbacks? Q Yes. A I’m not - I don’t really recall that one. Q You mean you don’t know - A Flashbacks of what, flashbacks of what, did he say what those flashbacks were? HIS HONOUR Q I know it’s difficult, but Ms Abbey is just asking you at the moment whether you said that at the Murray Bridge Police Station in February 2019. She’s not asking whether you had flashbacks or not yet, just whether you said that to the police. 528 Exhibit P4, Agreed Facts II, Agreed Fact 2(iii). 529 T406.10–T407.17. -- 153 of 170 -- [2024] SADC 75 Kimber J 152 A Right, yes. Q Do you agree that you said to the police something about flashbacks. A Flashbacks, it could be flashbacks. I thought it was suppressing like, not being able to like remember, well not remember, but to be able to say what had happened. XXN Q Is it true that at points along the way that you’ve had flashbacks. A Is what true? Q Is it true that you have experienced flashbacks. A I don’t know if you call it flashbacks or it’s just that memory that’s always there. Q I may have heard incorrectly, I probably did, but I thought you said earlier in your evidence today that you remember more as you get older. A I don’t remember saying that. Q Have you remembered better, do you think, over time. A It’s just I’ve tried to move on with my life with putting it right behind me, so in bringing it back up again - there were just so many times, it’s a lot of times to remember; or are you talking about this one particular occasion? Q Just this one. A I remember this one particular occasion, yes. 525 It is an agreed fact that in the statement given in February 2019, JP had said that ‘at the time in 1998 when she gave a statement to police she was suffering flashbacks’.530 526 It is not obvious to me that the evidence of suffering ‘flashbacks’ might be, on the evidence, suggestive of an unreliable memory. The only evidence which might shed light on what was meant by the use of that word is what JP said in evidence. JP said that it was a memory that was always there and that she remembered ‘this one particular occasion’. Rather than causing a concern about the reliability of JP about the occasion of sexual abuse about when she gave evidence, in my view, in the evidence above, JP was confirming that she believed that her memory was of an event which had taken place. 527 JP gave evidence of having contact with the police in 1987 about something that had happened to JS. In 1987, JS would have been 15 or 16 years of age. Mr Doug Hallett put the occasion on which he wanted to involve the police as a result of what he had seen as when JS was 14 or 15 years of age, but also said the police had not become involved.531 JS put the incident as being before she turned 530 Exhibit D6, Agreed Facts IV, Agreed Fact 5. 531 T714–T717. -- 154 of 170 -- [2024] SADC 75 Kimber J 153 15.532 I have already discussed this evidence in the context of the evidence of JS. I will not repeat my reasons for accepting relevant aspects of the evidence of Mr Doug Hallett. However, what happened to JS, and JS’s evidence about contact with police, is consistent with JP’s evidence about JP’s involvement with the police in the 1980’s being reliable. 528 JP gave the following evidence about the involvement of police:533 Q Do you say that you’ve been to the police to report something that happened to [JS]. A Yes, I have been. Q When was that. A 1987. Q 1987. A Yes. Q And you went into the police station in person. A I’m not quite sure if I went in or I rang the police on that occasion, that would have been the Snowtown Police Station. I’d had someone - Doug Hallett approached me in the morning and had told me something, that he’d seen [the accused] in [JS’s] bedroom and I told him that I was going to tell the police, that I was going out there because I had had enough and I was going to go confront mum and tell her what was going on. I went to - I had two other siblings, I had [JH] and Brian Masters living in the town at the time and my sister [CB] was married to Wayne. So I went and seen all my siblings and their partners and I said ‘I’m going to go to the police station and ask them to be out there to get it reported’. So I went and seen the others and we all went out to the farm and confronted - I got the blokes to take [the accused] up the backyard and tell him that we were telling mum what was going on. So we took mum to the bedroom and told her what was happening and the police rocked up probably about 10 minutes later, Bronte Lamshed and Alex Mission. And I was heavily pregnant with my first child at the time. It had sent me into labour, so I left about that time. But I was led to believe that there was [sic] CIB officers come over from Kadina Police Station because it was a sexually involved with a child and, yeah. So that was as far as I knew what was - went on about that occasion because I went to hospital and had my baby. 529 It is an agreed fact that Bronte Lamshed was a police officer in Snowtown between 1980 and 1984. On several occasions, as part of his duties as a police officer, Mr Lamshed attended [the accused’s] and SW’s residence at the Snowtown caravan park. None of Mr Lamshed’s attendances at the family home was related to any criminal investigation.534 530 In addition, enquiries having been made, there is no police record of the police speaking to the accused or his family or investigating an offence in the 532 T569–T570. 533 T415.33–T416.29. 534 Exhibit P4, Agreed Facts II, Agreed Fact 4. -- 155 of 170 -- [2024] SADC 75 Kimber J 154 1980’s.535 Nevertheless, for the reasons given earlier in discussing the evidence of Mr Doug Hallett, I am satisfied that there was discussion of what Mr Doug Hallett had seen of the accused sexually assault JS at the time. I accept that JP was reliable when she said she had contact with the police with respect to JS. In my view, JP is mistaken about Mr Lamshed having any involvement in attending the accused’s home in relation to JS. The likely explanation for the mistake is that he attended at the home of the accused on several other occasions. I have earlier considered the significance of the absence of any police record of involvement with JS at this time and explained my approach to the evidence of conduct with police despite the absence of any record. I will not repeat my approach. In short, the absence of a police record does not cause me to doubt the evidence of JP that there was contact with police at this time. There is other evidence which is consistent with JP’s evidence that there was such contact. 531 The accused submitted that JP had tailored her evidence with respect to what had been discussed with other complainants. There was extensive cross-examination of JP on this topic.536 I have carefully considered that evidence. Rather than being suggestive of a possibility that JP was prepared to lie, I found her response compelling as to why she had believed it not appropriate to speak to other complainants if the matter was to proceed to court.537 JP said it was ‘general knowledge’ that ‘if you’re going to court, you are not allowed to talk… about things in the case, because it would all be in evidence …’.538 When JP was asked about supporting her sisters, she said:539 Q And I suggest that your statement from 23 May 2017 was the first time that you mentioned you’d seen [the accused] coming into the bedroom and going anywhere near your sisters, what do you say about that. A If it’s stated in that statement, yes’ Q I’m suggesting that you did talk to your sisters about what they were going to say, what do you say. A You’d be wrong about that. Q And I suggest you did hear details about what they were going to say. A Definitely wrong about that one. Q Were you keen to support your siblings in coming to court’ A I’m always keen to support my siblings on everything. Anything that they’d like to do, to encourage them to move forward in life but I do not support telling lies or doing wrong things. 535 T805. 536 T391–T395; T418–T420. 537 T395. 538 Ibid. 539 T413.3–19. -- 156 of 170 -- [2024] SADC 75 Kimber J 155 532 I accept the evidence above. In my view, JP was not a witness who was prepared to be dishonest. I have no doubt that JP’s emphatic denials were honest. 533 Later in her evidence, JP was asked about whether she said things which she knew to be false. She said:540 Q I suggest that over the years with your siblings you’ve talked about sexual acts as well. A No, you’re suggesting wrong. Q I suggest you’ve talked about the idea of a silhouette of [the accused] and him coming into the room. A Well, again you’re wrong. I know and he knows (INDICATES). Q And I suggest that you have said some untrue things to police about sexual acts. A No, just not the complete truth, they’re not untrue. Q And I suggest you’ve done that to try and help your sisters and your brother [RH]. A Like I said’ I’d do anything to help my siblings move forward, but I don’t lie and I don’t know their situations behind any kind of sexual abuse, I can only talk about my own. 534 The person JP indicated during the evidence above was the accused. When JP gave the evidence above, I formed the impression that she was genuinely affronted by the suggestion that she would lie. I formed the same impression at the time of the following evidence:541 Q ‘It’s my bad question. What I’m asking or suggesting to you, is that you are lying about how certain you are that [the accused] did anything sexual in the house, to you or others’. A I’m not lying about that, no. 535 The accused also directed attention to the evidence of JP that she would not have her children babysat at the home of the accused. The evidence of JP about that was emphatic. The following exchange occurred during cross-examination:542 Q I suggest that while [the accused] and [SW] were living in Snowtown, once you had moved out of that house and you had your own kids, I suggest that you would send your kids to [the accused] and [SW] to be babysat. A You’re absolutely wrong on that matter, my children never, never went there. 540 T419.3–18. 541 T420.2–6. 542 T420.9–T421.10. -- 157 of 170 -- [2024] SADC 75 Kimber J 156 Q I suggest that it wasn’t just you, can you say about whether any other siblings gave their kids over for babysitting to [the accused] and [SW]. A You could probably say [SDH’s] children were the only children that I wouldn’t say safely, that would ever go there and stay. I can guarantee you mine never went there and would never. Q What about [LH’s] children. A I can’t talk for [LH]’ I’m not quite sure if whether she left her kids, but I doubt that very much. Touching a very subject for my children. Q To be clear what I’m suggesting is that they would, your children, catch the bus up on a Friday night. A To John’s house, you’re not talking about - Q To [the accused] and [SW’s]. A No, where would they catch the bus from? Q From where you put them on the bus. Did you ever put your kids on the bus to Snowtown to - A No. Q - [the accused] and [SW’s]. A Never ever. Q And I suggest that you would then collect the children on a Sunday night at the end of the weekend. A No. Q I suggest that happened more than once. A Never ever have my children been sent there. Q Do you agree that you used to return there for bonfire nights. A Return where? Q To the property at Snowtown yourself. A On bonfire nights? Q Yes. A I don’t recall bonfire nights, there used to be a bonfire every now and again, but no. 536 I have earlier set out the evidence of SDH on this topic. I have also found that SDH has been deliberately untruthful in an important aspect of her evidence (i.e. – whether she recalls what I am satisfied Mr Doug Hallett told her about the conduct of the accused towards JS). I reject the evidence of SDH where it conflicts -- 158 of 170 -- [2024] SADC 75 Kimber J 157 with the evidence of JP immediately above. That said, I have not found the conduct of JP in not allowing the accused contact with her children of assistance in evaluating whether JP is credible and reliable about Count 5. As set out earlier, JP was subjected to a violent upbringing. That alone might explain a desire to separate the accused from her children. Further discussion 537 JP struck me as a straightforward woman. She was an impressive witness. There was nothing in the way she gave evidence which caused me to doubt her. That said, as set out above, there are some significant inconsistent statements and significant differences in the evidence of JP and other evidence in the trial which must be considered in evaluating her credibility and reliability. 538 In my view, the most significant inconsistent statements and differences with other evidence in the trial are the failure to identify the accused as the relevant male in 1998 and the failure to mention the accused approaching the beds of CB and JH in 1998. The inconsistency about whether the vagina was penetrated also has significance as it might be consistent with imagining an event or a preparedness to deliberately embellish a false account. 539 The most significant differences in the evidence of JP compared to other evidence is her evidence about involvement with the police after the incident involving JS and the agreed fact about Mr Michael H not seeing SW restrained. 540 The failure to identify the accused in 1998 must be evaluated mindful of my rejection that the male might have been Mr Doug Hallett. On the evidence, it is not obvious to me that there might have been any other perpetrator other than the accused. Nevertheless, in 1998, JP did not say that she knew the accused was responsible and described only a silhouette of a male who smelt of smoke. 541 Further, it is relevant that since giving the statement in 1998, JP has had opportunity to learn from others about the accused sexually abusing them in their bedrooms. Whether that might have caused JP to lie or to imagine what she says she experienced must be considered. I reject that JP might have lied about what she says happened to her or that she lied in the hope of supporting any other complaint. I have earlier set out specific passages of the evidence of JP on that topic which I have no doubt were truthful. I accept her evidence that she was not prepared to lie. I add that had she been prepared to lie, she could have given evidence of seeing more when she says she saw the accused approach CB or JH. JP did not take that opportunity. 542 I accept that JP became aware of what Mr Doug Hallett said he had seen involving JS well before 1998. That must be considered in evaluating whether JP might have invented or imagined what she says occurred on the occasion of Count 5, as must other opportunities for JP to learn that others had been sexually assaulted. -- 159 of 170 -- [2024] SADC 75 Kimber J 158 543 The failure to mention the accused approaching the beds of JH and/or CB in the statement in 1998 is important, as is the evidence of JH which does not include an allegation of being sexually abused in that circumstance. I do not doubt the reliability of JP because of this. JP gave evidence that while the accused might have been at a bed(s) for as much as 30 minutes, she did not see what he was doing. In the circumstances, and as I accept her evidence about not giving a ‘full statement’ in 1998, this does not cause me to doubt JP about the incident the subject of Count 5. 544 The differences in the evidence with Mr Michael H are less significant than the matters just mentioned, for three reasons. Firstly, it is not a difference about whether JP was sexually abused. Secondly, that SW was assaulted in the way described is consistent with the evidence of MW543 and DA.544 It is unlikely that JP might have been influenced by the recollection of DA. There was no contact with DA after she left the house as a child and no suggestion in the evidence that such an incident might have been discussed before DA left the house for the final time. Thirdly, the evidence that the accused was violent to SW is considerable and finds support in the evidence of witnesses other than the complainants. I have in mind Mr Doug Hallett, whom I accept saw violence to SW and Mr John P whom I accept saw SW sobbing and with a black eye.545 In my view, JP is mistaken about Mr Michael H being with her when she observed SW being subjected to violence. 545 There were some specific aspects of JP’s evidence beyond her account of sexual abuse of her which, in my view, were consistent with JP being an honest witness. 546 As already observed, I found the evidence of JP about supporting other members of her family, but not to the extent that she approved of telling of lies, compelling.546 I reject that her response was a lie. I accept that it reflects her approach to her evidence. That is, that she was only prepared to relate what she genuinely believed had taken place. 547 JP did not attempt to hide that she intended to seek compensation. She agreed she had been to a meeting with more than one sister. It can be accepted that she was unlikely to lie about that given the presence of others. Nevertheless, her evidence, ‘…I will be seeking compensation…’,547 struck me, at the time it was given, as the statement of a person who genuinely believed she had experienced what she alleged and was not embarrassed about believing compensation was something to which she was entitled. I am satisfied that she was not embarrassed because she believes her evidence about Count 5. 543 T615. 544 T751. 545 T352. 546 T413.16–19; T419.15–18. 547 T400.21. -- 160 of 170 -- [2024] SADC 75 Kimber J 159 548 I was impressed with the way JP described what she saw the accused do at the beds of others. In my view, she did not do so in a way that suggested she might be prepared to be dishonest. She did not claim to be able to see any sister being touched, let alone on what part of the body. This is not to overlook that JP placed the accused at the bed of JH when no such evidence was given by that sister. However, I am satisfied that is a matter going to reliability, not honesty. 549 As I am satisfied beyond a reasonable doubt that JP was an honest witness, the real issue is the reliability of JP’s evidence of Count 5. 550 Like all complainants, the evidence of JP must be approached with care. Given the passage of time, the risks of reconstruction and imagination must be carefully considered. On the occasion the subject of Count 5, JP was intoxicated when she went to bed. She may still have been affected at the time she woke. Alcohol can have an adverse impact upon memory. As observed, the incident commenced when she was asleep, and she cannot have been awake for very long before the incident came to an end. There is a risk of unreliability when a witness recalls many years later an event which is said to have taken place when they were intoxicated, and waking up from sleep. That risk is increased when the accused has been seen by JP at the bed, or beds, of other sisters and when JP is aware of other complainants alleging sexual abuse by the accused. Such matters give rise to the need to consider the risk of assumption, or imagination, about what the person was doing in the room and the specific sexual abuse said to be recalled. 551 The evidence of JP about the accused approaching the bed of JH must be compared to the evidence of JH about that. The evidence of JP and JH is not necessarily consistent but, as earlier set out, JH did give evidence that the accused did come into her room at night.548 In my view, it is probable that any difference in the evidence is the natural consequence of the passage of time. I reject any differences as inconsistent with either witness being credible or reliable. 552 JP was giving evidence of a single incident which occurred about 40 years ago, at night and when she had been drinking. By the time she first made an allegation to the police, she was aware of the alleged conduct towards JS which was said to have been observed by Mr Doug Hallett. 553 I will not repeat those aspects of her evidence which I found compelling and those aspects which satisfy me that she was genuinely affronted by the suggestion that she might lie. However, as I have said, in my view, the real issue is the reliability of the evidence of JP about Count 5. Is it possible that she has imagined her vagina was penetrated when it was not? With the passage of time and having become aware of similar allegations having been made by others, might she have imagined the incident or that it was the accused? Is it possible that her evidence of this single occasion is unreliable? 548 T283.8–285.11 -- 161 of 170 -- [2024] SADC 75 Kimber J 160 554 I formed a very positive impression of JP when she gave evidence. As I have said, at the same time, the incident the subject of Count 5 was a very long time ago. It was an act which occurred only once, perhaps giving rise to a possibility of JP being unreliable about a single event which did not take place, particularly in the context of learning, before that event was revealed for the first time, that others in the family had been subjected to abuse. The memory of JP is that she was intoxicated when she went to sleep and was woken from sleep at the time of the incident alleged. Consideration must be given to whether one, or both, of those circumstances might have adversely impacted upon an accurate memory. As I have said, JP did not implicate the accused in 1998 despite the opportunity to know others had made sexual allegations against the accused. JP said in 1998 that the only thing she could recall about the male was the smell of alcohol and smoke. 555 I must be satisfied that the specific act alleged in Count 5 took place beyond a reasonable doubt. Despite JP being an honest witness and how impressed I was by her during her evidence, I cannot be satisfied beyond a reasonable doubt that she is reliable in her evidence about the single specific occasion alleged (i.e. – that the accused touched her vagina on the night of a birthday). The doubt I have is not resolved by using the propensity of the accused as a piece of circumstantial evidence. I am still left with a reasonable doubt about the reliability of the evidence about this specific single occasion. The doubt cannot be resolved by consideration of improbability reasoning. I am unable to exclude that the account of JP of Count 5 might be because of something learned from another complainant (i.e – innocent contamination). 556 I find the accused not guilty of Count 5. RH–Counts 10–12 557 RH was born on 19 September 1976. He is the son of the accused and SW. RH’s first memories of the family’s living arrangements is a caravan park at Snowtown,549 followed by different houses in the Mid North. He left home when he was about 16 years of age.550 Counts 10–12 inclusive 558 RH gave evidence that he was sexually abused for the first time when about five or six years of age. An aspect of his evidence was:551 Q Was he sexual towards you in [sic] one occasion or more than one occasion. A Three occasions. Q I want to ask you about the very first occasion that you remember. 549 T664.13. 550 T664.36. 551 T667.23–T668.4. -- 162 of 170 -- [2024] SADC 75 Kimber J 161 A Yep. Q The first one in time. A Yep. Q Firstly, how old were you, if you can say. A I think around five or six year old, around that age just about where he entered the room. I was in one of my sister’s beds. I think it was [JS’s] bed I believe. I know she wasn’t in the room at the time. He come [sic] in behind me. I was wearing pyjamas. He pulled down my pants where he proceeded to enter his finger into my arse kneeling down beside the bed. Q How did that incident end. A It felt like a lifetime but he wasn’t in there very long and then he stopped and stood up and walked out of the room. 559 That alleged incident is the conduct the subject of Count 10. 560 An aspect of his evidence about the alleged incident the subject of Count 11 was:552 Q Can you tell his Honour what occurred on this occasion. A Again he come into the room. There was fighting going on. I remember some, yep, there was [sic] arguments that night and [MW] I think – I think [MW] was in the bed as well when he came in and he came up behind me and did the same thing. I slipped. I tried getting out of bed but he came in and jumped back into bed and then he come up behind and that’s when he did the same thing again, pulled my pants down and inserted fingers, kneeling down by the bed. Q On this occasion did he say anything to you. A No. Q Did you say anything to him. A No. Q What were you doing while his fingers were penetrating your anus. A Just trying to keep quiet. Not move, yeah. Q How did this incident end. A The same, he just stood up and walked out. Q I’ll ask you the same question. A Yep. 552 T671.21–T672.9. -- 163 of 170 -- [2024] SADC 75 Kimber J 162 Q When he stopped doing what he was doing, and before he left the room – A Yep. Q – did he say anything to you. A No, he just stood up and walked out. 561 In opening, the prosecution particularised Count 12 as being as an occasion of penetration of RH’s anus.553 RH did not give evidence of that act. RH said:554 A He came in, it was late at night, and that’s when I’d woken up to him coming in. He’d done the same sort of thing again, he knelt down beside the bed, he pulled down my pants, and he went to insert and that’s when I woke, I jumped up out of the bed, I screamed at him, I told him to ‘stop it’, ‘leave me alone’. I ran out the house, and I went and hid in the shed, which they called, they called it the super shed at that time, and I stayed in there until I could go back inside. I stayed in there for hours. 562 RH did not elaborate on what was meant by ‘he went to insert’. Faced with the above evidence, in its closing address, the prosecution submitted that the pulling down of the pants was the conduct the subject of Count 12 and submitted that I should not consider whether an attempted indecent assault had been proven.555 563 I find the accused not guilty of Count 12. Even if the evidence of RH is accepted beyond a reasonable doubt about what occurred with his pants, I am not satisfied that it is open to convict of indecent assault when the act the subject of Count 12 was identified by the prosecution in its opening as penetration of the anus. The prosecution chose to particularise in its opening an act that involved a touching of the anus of RH. The pulling down of the pants was, at best, a preparatory act. I am not satisfied that it is open to me to convict of a completed offence of indecent assault when the evidence does not establish beyond a reasonable doubt that there was a touching of the bottom of RH, let alone a touching of the anus. 564 As the prosecution did not invite me to consider that the evidence established beyond a reasonable doubt that the accused had attempted to indecently assault RH by attempting to touch his anus, I do not need to consider whether the evidence established an attempted indecent assault. Nevertheless, the evidence given about Count 12 is discreditable conduct. It places into context the alleged conduct the subject of Counts 10 and 11. That evidence has no other use. It must not be used to suggest that the accused a bad person and is more likely to have committed either Count 10 or 11.556 553 T12. 554 T674.25–34. 555 T1013. 556 Evidence Act 1929 (SA) s 34P(1). -- 164 of 170 -- [2024] SADC 75 Kimber J 163 A summary of the submissions of the accused 565 The accused directed particular attention to prior inconsistent statements made by RH. 566 In a statement given in 1998, RH did not allege that he had been sexually assaulted by the accused. RH agreed that his mother was still alive, and he did not want to deal with it.557 567 In evidence, RH said that he had seen the accused come into the same bedroom occupied by him and JS, pull back the bedding and move his hands around. He said that he saw this ‘numerous amounts of times’.558 He said that on at least some occasions he was under another bed in the room. RH gave evidence that he had seen the same thing occur with respect to MW when he was in bed with her and when he was under another bed. RH said that he saw the accused touch MW around the area of her vagina.559 RH said that he saw this more than once and referred to recalling four times that this occurred.560 568 In a statement given in 1998, RH told police that he had not seen the accused assault any girl in a sexual way. RH’s evidence about this aspect of his statement in 1998 included that he had just had children himself, ‘pushed it all out’ and did not think of it.561 RH also said:562 Q And I suggest that you told Detective Carson ‘I never witnessed dad assaulting the girls in a sexual way’. A I probably did say that. Q I suggest that’s true, you didn’t witness [the accused] sexually touching or assaulting the girls. A Yeah, no, that’s not true, I did witness that. Q You can see that that’s different, what you said in 1998 to what you’ve said today can’t you. A Yes, yeah I can see that, yeah. Q I think you were going to tell us something about your thinking in 1998, I think you said mum was alive. A Yeah, and it was just all shock, I didn’t want, I didn’t want to deal with it. Just didn’t want to do it. 557 T699. 558 T684.16–21. 559 T685.24–27. 560 T686.8. 561 T708.5. 562 T692.25–37. -- 165 of 170 -- [2024] SADC 75 Kimber J 164 569 In December 2019, RH gave another statement in which he said that despite sleeping with his sisters on occasions in their beds, ‘they never got sexually assaulted … while I slept with them’.563 RH agreed that in 2019 he had said that he had hid under beds and seen the accused kneel next to the beds. However, RH also said in 2019 ‘I don’t know exactly what he was doing, but I am assuming that he was sexually assaulting them’.564 As set out earlier, RH said in evidence that he had seen at least MW being touched in a sexual way. It is difficult to interpret his evidence about JS and the accused as being anything but witnessing sexual assault of her. An aspect of RH’s evidence about the statement in 2019 was:565 Q And I suggest that you were saying by that, that you were not aware that the girls had been sexually touched while you were in bed with them. A No, I was aware that the girls had been sexually touched. But what I’m trying to say is that there was [sic] a lot of times that I’d go in there and just sleep in there with the violence that was going on, that was my protection to them, that’s all I could do. I couldn’t fight him. Just being in that room, you know. The violence, a lot of violence all the time in that house, when they were drinking. 570 MW did not give evidence of being sexually assaulted in the presence of RH. However, JS gave evidence consistent with her being sexually abused in the presence of at least one brother. When giving evidence about an occasion which she related to her ninth birthday, JS said:566 Q Do you know whether you were in a bed on your own or sharing with someone else. A I believe I was in a bed with one of my brothers. I don’t know which one it was and I recall hiding my brothers under my bed, as I had done on quite a few occasions to try and protect them. Q Protect them from what. A I did not want anything to happen to my brothers. 571 As set out above with respect to Count 12, the prosecution opened on the basis RH would give evidence of an act of penetration. If RH had given a statement before trial consistent with the prosecution opening and inconsistent with his evidence, that prior statement was not the subject of cross-examination. Strictly, no prior inconsistent statement was proven, and RH was not given the opportunity to comment on any potential prior inconsistent statement.567 Nevertheless, there is authority that suggests I should assume that the opening establishes a prior inconsistent statement notwithstanding the absence of relevant cross-examination and formal proof of a prior inconsistent statement.568 563 T695.15–16. 564 T697.10–12. 565 T696.25–35. 566 T563.12–19. 567 Evidence Act 1929 (SA) ss 28 and 29. 568 MAS v The Queen (2013) 118 SASR 160 [91]–[92]. -- 166 of 170 -- [2024] SADC 75 Kimber J 165 572 One alleged prior inconsistent statement mentioned in submissions was not established. Contrary to the submission of the accused, I am not satisfied that RH admitted that the first time he had said that he had seen the breasts of JS touched was in evidence. RH said:569 Q I suggest that the first time you’ve said that you saw fondling of [JS’s] breasts by [the accused] is here today in court. I’m just talking about when you first said that. A Yep. Q I’m suggesting it’s today, do you agree or not. A I don’t know, you can suggest what you like, I seen what I seen and it had happened. 573 In the first answer above, RH was merely acknowledging the question. His second answer was clear, he did not know whether he had made the statement suggested. Nevertheless, in terms of prior statements about his sisters (including JS), it remains the case that in 1998 RH stated that he had not seen the accused sexually assault any complainant and in 2019 he only made reference to an assumption about conduct of that type. Further discussion 574 RH gave evidence in a very matter of fact way. There was nothing in the way he gave his evidence which caused me to doubt his credibility or reliability. 575 As set out earlier, there is evidence that RH was present at a meeting attended by several complainants in about 1997 or 1998. RH gave evidence that he was aware of allegations of sexual abuse having been made by DG, LH, JH, JP and CB, but not the detail.570 RH said that he was aware of JS having said she was touched on the vagina and breast.571 Each of LH, JP, JS and CB have said that they were sexually assaulted by the accused in their bedrooms at night. I am unable to exclude the possibility that RH was aware of at least that location having been alleged by at least one or more complainant by about 1998. It is possible that in revealing the fact of sexual abuse a complainant might reveal something of at least the general circumstances in which that occurred. At the very least, before he gave any statement to the police, there is a real possibility that RH knew that other complainants were claiming to be victims of sexual abuse by the accused in their bedrooms at night. 576 The inconsistent statements made by RH as to what he had seen happen to JS and MW are important. That said, as observed, there is possibly some support in the evidence of JS for her having been abused in the presence of a brother, but she did not identify which brother. If the occasions JS recalled was the occasion of 569 T697.37–T698.5. 570 T680–T683. 571 T683.23–24. -- 167 of 170 -- [2024] SADC 75 Kimber J 166 her ninth birthday, RH would have been only three years of age. It is unlikely RH recalled that occasion in his evidence. 577 It must also be observed that RH would have been in his early 20’s in 1998 and that what he said in evidence he had seen had occurred several years before. That his mother was still alive and he had a desire not to deal with what had occurred is not an unlikely explanation for not making an allegation of abuse of him in 1998. Nevertheless, there is not just the inconsistent statement about abuse of himself in 1998, there is also the inconsistent statement about not seeing the accused assault another at the same time and the inconsistent statement in 2019. 578 In 2019, it can be observed that RH did allege at that time the accused knelt at the bed. What he described seeing in evidence is not wholly inconsistent with what he said in the statement in 2019, but the account of RH has changed from the accused having opportunity and RH making an assumption, to one of seeing both MW and JS sexually assaulted. In my view, it is significant that more than 20 years after the statement in 1998, RH only said that he assumed that the accused was abusing someone while RH was in the room. That is different to RH’s evidence in court and a statement made long after the shock RH said he was experiencing in 1998 might have passed. 579 The absence of evidence from MW about RH being in the room when any sexual touching occurred has some significance when RH claimed to be in the bed on at least one occasion. It might be one thing not to know, or recall, that your younger brother was in another bed, or under a bed, it might be another thing to not recall that he was next to you when you were being assaulted. Even if the evidence of JS on this topic is considered, it went no further than the evidence I have summarised. That said, it would not be surprising if the memories of honest and otherwise reliable witnesses differed many years after things were said to have occurred. Conclusion—Counts 10 and 11 580 Separately considered, I must be satisfied beyond a reasonable doubt that the specific acts alleged in Counts 10 and 11 took place beyond a reasonable doubt. 581 There were aspects of the evidence of RH which may be the product of a true and accurate memory. In particular, his evidence of how he responded to the first occasion by biting his fingers and not making any noise because he was scared;572 and his evidence about attempting to leave on the second occasion.573 When RH gave evidence about hiding in the shed having run from the house on the final occasion, I was left with the impression that was unlikely to be a detail he might have been imagined. That said, the evidence of what occurred before RH ran away was inconsistent with the prosecution opening. 572 T669.22–24. 573 T671.26. -- 168 of 170 -- [2024] SADC 75 Kimber J 167 582 The inconsistent statement made by RH in 1998 in failing to speak of what happened of a sexual nature to him is, in my view, significant in assessing his credibility and reliability. RH explained that statement in a way that is not inherently unlikely, but, as I have said, that is not the only inconsistent statement made by RH about the accused. 583 As with all witnesses, the passage of time is important. It provides an opportunity for RH to convince himself that something occurred which did not, to not recall accurately essential details of an event which occurred or even invent something which did not happen. Given that RH failed to complain about sexual assault of himself in 1998; failed to refer at the same time to the conduct of the accused to JS and CB in terms consistent with his evidence; and in 2019 referred only to an assumption of what was occurring when the accused knelt by beds; without using any propensity of the accused as a piece of circumstantial evidence and without engaging in improbability reasoning, I have been left with a reasonable doubt about whether the evidence of RH is truthful and reliable about the conduct the subject of Counts 10 and 11. 584 Relying only upon the evidence of RH, I am not satisfied beyond a reasonable doubt that the evidence RH was truthful and reliable about either Count 10 or 11. 585 I turn to consider the propensity of the accused and whether use of propensity as a piece of circumstantial evidence resolves the doubts that I have. 586 The propensity that I have identified earlier relates to girls in the care of the accused, not boys. That RH is a male does not mean that the accused cannot have a propensity which is relevant. It would be wrong to limit, in every case, a propensity to offend sexually against children to children of a single sex. The propensity I have earlier identified is one that is unnatural as it is sexual and relates to children. At least because it is a propensity which is unnatural, it would be wrong to immediately dismiss the existence of a propensity that related to a child of more than one sex. At the end of the day, I have not found it necessary to decide whether the conduct towards other complainants establishes that the accused had a propensity to take opportunities to offend in a sexual way towards any child in his care, regardless of sex, despite the risk of detection. Even if I assumed the accused had the propensity just described, which I strongly suspect is the case given the sexual acts involving other complainants that I have found proven beyond a reasonable doubt, and I used it as a piece of circumstantial evidence in the evaluation of the evidence of RH about Counts 10 and 11, my reasonable doubt about RH being both credible and reliable about both counts would not be resolved. I would still have a reasonable doubt about whether either act occurred because of the prior inconsistent statements in 1998 and 2019 and with respect to Count 12. 587 The evidence of RH has several similarities with evidence that I have accepted. As just examples: that the accused took the opportunity to sexually abuse a child in his care; in circumstances in which there was a risk of detection; and did so at night in the room of the child. What RH and other complainants -- 169 of 170 -- [2024] SADC 75 Kimber J 168 described in relation to conduct by a father, or step-father, is well outside ordinary human experience. There is an underlying unity between evidence given by other complainants and the evidence of RH. Nevertheless, as earlier set out, I cannot exclude that, before RH made any allegation of having been sexually abused by the accused, he knew something of what had been alleged by some other complainants. I cannot exclude that RH knew, before he made any allegation about sexual acts towards him by the accused that other complainants had alleged being sexually abused, at night, in their bedrooms by the accused. In the case of RH, I am unable to exclude that the underlying unity that exists is because of what RH was told by another complainant(s). It follows that it is inappropriate to engage in improbability reasoning. 588 For the above reasons, I am unable to accept the evidence of RH about Count 10 or 11 beyond a reasonable doubt. I find the accused not guilty of Counts 10, 11 and 12. Conclusion 589 I find the accused guilty of Counts 1, 6, 7, 9 and 13. 590 I find the accused not guilty of Count 3, but guilty of Attempted Indecent Assault with respect to that count. 591 I give no verdict on Count 8 as it is an alternative to Count 7. 592 I find the accused not guilty of Counts 2, 4, 5 and 10–12 inclusive. -- 170 of 170 --