[2024] SADC 83

Prosecution: R Counsel: MR S ADAMS - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: J P Counsel: MR M ANDERS - Solicitor: BRIAN DEEGAN LAWYERS Hearing Date/s: 04/12/2023 to 13/12/2023, 15/12/2023 File No/s: DCCRM- 22-895 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 J P Criminal Trial by Judge Alone [2024] SADC 83 Reasons for the Verdict of her Honour Judge Deuter 12 July 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD The accused elected for trial by judge alone on one count of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). It is alleged that between 1 January 2013 and 31 December 2015, the accused committed the acts against his younger cousin BP of maintaining an unlawful sexual relationship with BP, namely: (a) causing her to touch his penis; (b) causing her to perform an act of fellatio upon him; and (c) touching her genital area on one occasion. Verdict: Not Guilty. Criminal Law Consolidation Act 1935 (SA) ss 50 and 50(1); Evidence Act 1929 (SA) ss 34M, 34CB, 34P(2) and 34P(4), referred to. R v Mann [2020] SASCFC 69; Ford v The King [2023] SASCSA 117; Butera v Director of Prosecutions (Vic) (1987) 184 CLR 180; R v Ortega-Farfan [2011] QCA 364; The Queen v Pftizner (1976) 15 SASR 171; R v Abdulla [2010] SASC 52; R v Stringer [2000] NSWCA 293; Douglass v The Queen [2012] HCA 34, considered. -- 1 of 74 -- -- 2 of 74 -- R v J P [2024] SADC 83 Contents Background .......................................................................................................... 3 Description of family members ......................................................................... 4 Elements of the offence ........................................................................................ 4 Legal Directions ................................................................................................... 6 Voir Dire ............................................................................................................... 8 1. The CCTV footage ........................................................................................ 9 Provenance of the CCTV footage and copy.................................................... 11 Ruling ............................................................................................................... 12 2. The Family Meeting .................................................................................... 12 The Evidence ................................................................................................... 13 The Complainant, BP .................................................................................... 13 The Complainant’s father, PP ...................................................................... 14 The Complainant’s sister, SP ........................................................................ 14 The Complainant’s mother, PV (through an interpreter) ............................. 15 The complainant’s sister, DP ........................................................................ 15 The Accused, JP ............................................................................................ 16 The Accused’s father, ThP ............................................................................ 18 Consideration................................................................................................... 19 Ruling ............................................................................................................... 20 Evidence of Offending ....................................................................................... 21 1. The Prosecution case .............................................................................. 21 The complainant, BP ..................................................................................... 21 BP’s father - PP ............................................................................................ 29 BP’s sister - SP ............................................................................................. 34 BP’s mother – PV (through an interpreter) .................................................. 37 BP’s brother - TP .......................................................................................... 39 BP’s sister - DP ............................................................................................ 39 Detective Brevet Sergeant Sarah Brown....................................................... 42 2. The Defence Case ................................................................................... 43 The Accused - JP ........................................................................................... 43 JP’s brother - MP ......................................................................................... 48 -- 3 of 74 -- [2024] SADC 83 2 JP’s sister - AP.............................................................................................. 52 JP’s father - ThP ........................................................................................... 54 Submissions in closing ....................................................................................... 57 1. Prosecution closing address ................................................................... 57 2. Defence closing address.......................................................................... 62 3. Prosecution reply .................................................................................... 69 Decision ............................................................................................................... 69 Verdict ................................................................................................................ 72 -- 4 of 74 -- [2024] SADC 83 3 R V JP Background 1 The accused (JP) is charged on an Information dated 23 September 2022 with Maintaining an Unlawful Sexual Relationship with a Child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). 2 The particulars of the offending were agreed at the start of a trial on 4 December 2023: JP between the 1st day of January 2013 and the 31st day of December 2015 at Salisbury Plains, maintained an unlawful sexual relationship with BP, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely: a. causing her to touch his penis on more than one occasion; b. causing her to perform an act of fellatio upon him on one occasion; and c. touching her genital area on one occasion. This is a ‘prescribed offence’ within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016. 3 The accused and the complainant (BP) are first cousins on their father’s side. They lived with their respective families as next-door neighbours. The Prosecution allege that the sexual offending is alleged to have taken place at JP’s home on occasions when BP was visiting. 4 It is an agreed fact that BP was born on 25 May 2007; and that JP was born on 29 November 1993. BP was between 5 and 8 years old during the period of the alleged offending. JP was between 19 and 22 years old. 5 The incidents involving the touching of JP’s penis are alleged to have occurred in the bedroom that he shared with his brother, MP. The occasion of JP demanding that BP fellate him is alleged to have occurred when he walked BP into the bathroom adjacent to his bedroom.1 The third incident is alleged to have occurred when BP was sitting with JP on his bed, and he demanded that she take off her underwear. BP complied and it is alleged that JP touched her vagina, on the outside. A later, uncharged allegation was of JP lifting BP’s dress whilst she was in his room, and looking at her underwear.2 6 On 23 September 2022, JP pleaded not guilty in this court to the charged offence. A late application for election for trial by judge alone was filed on 17 November 2023. This was opposed by the Crown. After argument, a judge of 1 An agreed fact at trial was that the bathroom attached to the bedroom shared by JP and his brother was renovated in October 2013. 2 Transcript of Prescribed Interview dated 3 July 2021 (Exhibit MFI P2) at p21; T159. -- 5 of 74 -- [2024] SADC 83 4 this court granted an extension of time for election to 17 November 2023. The trial proceeded without a jury. 7 A further agreed fact is that JP has never been charged or convicted of any criminal charge outside of these proceedings. 8 I now publish my reasons for the verdict I deliver. Description of family members 9 As a result of the nature of the offending, and the family dynamics involved, to ensure that the complainant and the accused will not be identified, all family witnesses will be described by initials. They are as follows: (1) The complainant’s family BP - the complainant PP the complainant’s father PV - the complainant’s mother KL - the complainant’s father’s first wife SP - the complainant’s half sister DP - the complainant’s half sister TP - the complainant’s half brother JaP - the complainant’s younger brother LP - the complainant’s cousin (2) The accused’s family JP - the accused MP - the accused’s brother AP - the accused’s sister ThP - the accused’s father TO - the accused’s mother Elements of the offence 10 The Prosecution must prove beyond reasonable doubt the following elements of the offence in relation to each count: 1. That JP was an adult at the time of the alleged offending. -- 6 of 74 -- [2024] SADC 83 5 Upon the agreed fact, this element was not in dispute and I find it proved beyond reasonable doubt. 2. That BP was a child at the time of the alleged offending. Upon the agreed fact, this element was not in dispute, and I find it proved beyond reasonable doubt. 3. That JP knowingly maintained a relationship with BP during the period over which the alleged sexual acts occurred. The relationship cannot be constituted by isolated acts but must have a degree of continuity. The relationship must comprise more than the alleged sexual acts alone. In considering whether there is a relationship for the purposes of s 50 of the Criminal Law Consolidation Act 1935 (CLCA), all of the circumstances of the association between JP and the alleged victim, must be taken into account.3 Whether there is a relationship is a question of fact.4 This element was not in issue at trial and I am satisfied beyond reasonable doubt that JP maintained a familial relationship with BP during the relevant period. He is BP’s first cousin; and he and his family lived next door to her family, over the period of the alleged offending. 4. That JP engaged in an unlawful sexual relationship with BP. An unlawful sexual relationship is a relationship in which, during the period that it was being maintained, JP committed two or more unlawful sexual acts with or towards the complainant. Each of these acts is denied by JP. The particularised unlawful sexual acts as alleged are: • Indecent Assault (encouraging BP to touch his penis, and touching BP’s vagina) • Unlawful Sexual Intercourse (fellatio), 11 As the trier of fact, I am not required to be satisfied of the particulars of any unlawful sexual act of which I would have to be satisfied if the act were charged as a separate offence, but I must be satisfied as to the general nature or character of those acts. 12 As BP was under the age of 17 years at the time of the alleged offending, the issue of consent is irrelevant. 13 The sole issue in dispute is, whether the Prosecution has proved beyond reasonable doubt, that JP committed the alleged unlawful sexual acts on two or more occasions. 3 R v Mann [2020] SASCFC 69 at [12]. 4 Ibid at [21]. -- 7 of 74 -- [2024] SADC 83 6 Legal Directions 14 As the trial proceeded by judge alone, it is not necessary to outline the standard jury directions. However, I remind myself of the following directions: • That JP is presumed innocent unless, and until, his guilt has been proved beyond reasonable doubt by the Prosecution. The burden of proof rests wholly on the Prosecution and JP is not obliged to prove anything. In relation to the alleged offending, nothing short of proof beyond reasonable doubt is sufficient. It is not enough for the Prosecution to show a suspicion of guilt or to show that JP is probably guilty. The Prosecution must prove each element of the offence beyond reasonable doubt. If there is an explanation consistent with the innocence of JP, or after careful consideration I am unable to decide where the truth lies, then the Prosecution will have fallen short of proving its case beyond reasonable doubt, and JP must be found not guilty. • In these reasons, if I use the words ‘proved’, ‘established’, or ‘satisfied’, I mean to a standard of beyond reasonable doubt. • I must determine whether each of the witnesses that have been called are credible and reliable. I can accept part of a witness’ evidence, and reject part of that evidence, or I can accept or reject it all. If, however, the evidence fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged, then JP remains presumed innocent and I must return a verdict of not guilty. • JP elected to give evidence. He was not required to, and could have remained silent. I remind myself that I am to assess his evidence in the same way as other witnesses, and must not give it less weight because it was given by the accused person. • The onus of proof does not change because JP gave evidence. The onus remains on the Prosecution to prove the charged offence beyond reasonable doubt. Even if I reject JP’s evidence, and disregard it, the question remains, has the Prosecution, on the evidence I accept, proven guilt beyond reasonable doubt. • In this regard my decision is not to be based upon a preference between the evidence of BP and JP. If I accept JP’s evidence, I must find him not guilty. Even if I find there is a reasonable possibility that JP’s evidence is true, I must find him not guilty. • The evidence of all witnesses must be assessed for both its credibility and reliability. In doing so, I am able to consider a witness’s demeanor, and must take into account that witnesses vary in age, background, education and their ability to express themselves. -- 8 of 74 -- [2024] SADC 83 7 • Evidence was given by BP of initial complaint and elaboration of that complaint. Evidence of complaint must meet the criteria in s 34M of the Evidence Act (1929) (Evidence Act). It can be used to understand how the allegations first came to light and the degree to which BP has acted consistently. That is, was BP’s complaint about the offending at the time, what might be expected, and to what extent did her account remain consistent from the time that she first reported the offending. The evidence of complaint does not demonstrate the truth of what was said. The complaint can be used for assessing the credibility of BP, including any difference between her account and that of the complaint witness. • I must take into account that there are multiple reasons for when and how a complaint is made. Issues of credibility, consistency of conduct or inconsistencies, and the circumstances leading to the complaint must all be considered. • The defence is not required to provide or prove a motive to lie. The fact that there is limited evidence presented of a motive to lie does not strengthen the Prosecution case. It is neutral. • I must consider any evidence said to support a motive to lie, and whether it affects the evidence of BP and other Prosecution witnesses. If I reject the evidence of the motive to lie, this does not mean that BP is necessarily telling the truth. It does not strengthen the Prosecution case. There are many reasons why a witness may lie, and I am not to treat BP’s evidence as more credible because I have rejected reasons for her to be lying. • In addition to BP’s prescribed police interview (the prescribed interview) conducted on 4 July 2021, BP gave additional evidence and was cross-examined via an audio visual link from a witness suite. I must not draw any adverse inference against JP because of those arrangements, nor allow them to influence the weight I give to BP’s evidence. • However, the Prosecution case rests on the evidence of BP and I must therefore scrutinise her evidence carefully. • I am to consider the directions set out in s 34CB of the Evidence Act in assessing whether there is any forensic disadvantage to JP. I am not to speculate as to what any absent witness may have said in evidence. I should however take into account any absence of evidence when assessing the witnesses called by the Prosecution, and when deciding if the charge has been proven beyond reasonable doubt. If I find there is a forensic disadvantage, I must identify the matters that cause a disadvantage to JP as the accused person. -- 9 of 74 -- [2024] SADC 83 8 • Any evidence of discreditable conduct given by BP was not the subject of a notice filed by the Prosecution pursuant to s34P(4) of the Evidence Act (1929). Any evidence was therefore not led for a propensity purpose. Before I can use any of the evidence led by the Prosecution for a discreditable conduct purpose, I must be satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have on JP.5 I must be satisfied that the permissible use can be kept sufficiently separate and distinct from the impermissible use. Voir Dire 15 On 17 November 2023, the defence filed a Rule 39 Notice seeking to exclude all evidence at trial referencing: …a family meeting (inclusive of a subsequent gift of a puppy to the complainant by a third party) said to have been conducted on Saturday 26 June 2021 (the family meeting). 16 The family meeting involved JP, BP, and several other family members, including both sets of parents. This meeting was after BP had disclosed the alleged offending to her sister, SP and as a result, BP’s parents learned of the allegations. It was argued that JP felt pressured to attend the meeting and did not attend of his own free will. The timing of the meeting was also relevant, as it was before JP was arrested, and before BP had participated in the prescribed interview. The Prosecution argue that the admissions were made when JP was confronted by BP’s allegations. 17 The grounds relied upon by JP as set out in the Rule 39 Notice are: 1. The applicant was obliged to participate in the family meeting and thus his communications in that context cannot be said to have been in exercise of his own free will. 2. The meeting was conducted in the shadow of the threat of a police report absent his cooperation in the context of the meeting. 3. The external pressure applied to the applicant by senior family members was otherwise oppressive and, further, this serves to compromise the reliability of any comment made by the applicant in this setting. 4. The allegations were not put to the applicant with consistency and/or clarity, thus compromising reliability and relevance. 5. The responses allegedly given by the applicant lack clarity, thus further compromising reliability and relevance. 6. Others present during the course of the family meeting, the applicant’s immediate family members (his parents), provide an opposing narrative as regards relevant events, thus creating a factual controversy that again serves to compromise reliability. 5 s 34P(2)(a) of the Evidence Act. -- 10 of 74 -- [2024] SADC 83 9 7. The evidence lacks relevance. 8. The evidence is unreliable. 9. The evidence is otherwise more prejudicial than probative. 10. To admit the process of interrogation would otherwise be unfair to the applicant. 18 At the commencement of the trial, I was advised that there were several issues in relation to the family meeting, that could only be determined after the evidence of the participants (at least eight people) was heard. In addition, there was CCTV footage of the meeting (without sound). As all attendees at the family meeting would be giving evidence generally at trial, it was agreed that the trial should commence with all witnesses giving evidence. Any evidence regarding the family meeting would be received de bene esse, on a provisional basis, without determining admissibility. At the conclusion of the trial, submissions would be made on the voir dire and, depending upon the ruling, the evidence regarding the family meeting may be excluded. 19 As the trial proceeded, JP sought to have the CCTV footage of the family meeting excluded from the evidence. Again, I allowed the trial to proceed until I had heard evidence on oath regarding the circumstances of the creation of the footage. My rulings on each of these issues are set out below. 1. The CCTV footage 20 I ruled that CCTV footage of the family meeting as comprised in MFI P7 should be excluded. This was CCTV footage of the family meeting, and it did not contain any audio.6 The family meeting was held in the complainant’s home, and the relevant footage was later deleted from the CCTV hard drive. The version of the CCTV footage sought to be tendered was therefore not the original CCTV footage, but a copy. 21 It was conceded by the Prosecution that exhibit MFI P7 was in fact three ‘clips’ of a much longer piece of CCTV footage.7 These were parts of the original footage copied by BP’s mother, PV, by holding a mobile phone (iPhone 13) to the original footage as it was displayed on another mobile phone (iPhone 8), owned by BP’s father, PP. The iPhone 8 was placed on a table, and PV held the iPhone 13 over the top of it to record several parts of the family meeting. 22 This occurred before the original CCTV footage was deleted from the hard drive. The footage from the hard drive was accessed by using the iPhone 8.8 No admissible evidence was led regarding the location of the CCTV cameras,9 nor how the original footage was deleted. 6 MFI P7. 7 T247. 8 T231-232; T366. 9 T239-244; T248-249. -- 11 of 74 -- [2024] SADC 83 10 23 It was agreed by the Prosecution that the footage sought to be tendered did not show the entirety of the footage. For most of the footage, only half of the participants were filmed.10 PV told the court that she recorded on to her phone only footage of JP on the day BP made her allegations, being 27 June 2021. Only three separate clips of the footage as copied were sought to be tendered. 24 The admissibility of the CCTV footage in MFI P7, despite the manner in which it was produced, was argued by the Prosecution on the basis that it was ‘real’ evidence that showed the placement of persons at the family meeting.11 The Prosecutor relied upon the decision of the Court of Appeal in Ford v The King12 (Ford) where, photographs taken by police of what they found on a mobile phone used by the appellant, were admitted in as evidence at trial. The Court found that the evidence located in the appellant’s mobile phone was relevant and admissible evidence in proof of the Prosecution’s circumstantial case. It was said that: … the notion that mobile phones can be used to take, send and receive still and moving digital images, usually described as photographs and videos, is also well recognised.13 25 In these proceedings, PV did not simply copy or download the CCTV footage. She edited it by only copying three small parts. She also moved the ‘recording’ iPhone 13 in and out as she sought to highlight parts of the footage that she considered to be important in incriminating JP. In addition, the screen of the iPhone 8 from which PV recorded the footage was cracked in several places, meaning that the footage recorded onto the iPhone 13 was at times not clear and blurred over. It was not an accurate replication of the original CCTV footage. 26 I was also taken to the decision of Butera v Director of Prosecutions (Vic)14 (Butera), where the High Court considered the provenance of the transcripts of recordings, including the translation of tape recordings. Mason CJ, Brennan, and Deane JJ said that the proper view was that the tape by itself is not admissible evidence, but rather it is the sound produced by its playing which is admissible.15 They found that the best evidence rule cannot be used: …. to exclude evidence derived from tapes which are mechanically or electronically copied from an original tape. Provided the provenance of the original tape, the accuracy of the copying process and the provenance of the copy tape are satisfactorily proved, there is no reason why the copy tape should not be played over in court to produce admissible evidence of the conversation or sounds originally recorded.16 10 T491. 11 T247-249. 12 [2023] SASCSA 117. 13 Ibid at [53]. 14 (1987) 184 CLR 180. 15 Ibid at [9]-[10]. 16 Ibid at [11]. -- 12 of 74 -- [2024] SADC 83 11 27 Defence counsel argued that these authorities have no work to do in this matter, as the original footage had been edited and MFI P7 is not simply a copy of the original CCTV footage.17 28 I have reviewed the authorities and find that the admissibility of ‘copy’ tapes (or in this case just a ‘copy’) requires as a condition that the ‘provenance of the original tape, the accuracy of the copying process and the provenance of the copy tape are satisfactorily proved.’18 Provenance of the CCTV footage and copy 29 The Prosecutor submitted that the evidence of PP and VP established that the family meeting was recorded by CCTV cameras without audio. PP and VP’s evidence explained how VP then copied parts of that footage and why the original was deleted. 30 The Prosecution relied upon MFI P7 as circumstantial evidence that corroborated that the family meeting took place; and showed the manner in which JP and the other witnesses conducted themselves generally. 31 Defence counsel argued that without audio the CCTV footage was of limited value. The circumstances were not analogous to the factual circumstances in Ford, as a direct replication of what was on the CCTV recording was not made and the precise editing method was unknown. 32 The Court was taken to the decision of the Supreme Court in Queensland in R v Ortega-Farfan19 (Ortega-Farfan), where the appellant had made inculpatory statements in a conversation that was covertly recorded by the complainant’s father. However, portions of the conversations were omitted from the transcript read to the jury. It was submitted on appeal that the omitted parts of the transcript influenced the meaning of the appellant’s statements as relied on by the prosecution, in that they materially weakened the inference of guilt. 33 The conviction was set aside by the Court of Appeal. It was found that the edited transcript had presented the jury with an incomplete picture of the conversations, meaning the jury could not make a ‘meaningful assessment of the significance of the appellant’s allegedly incriminatory statements’.20 34 Defence counsel argued that the CCTV footage in MFI P7 was similarly cherry picked in an ambiguous manner. The editing process was also not made clear by PV’s evidence. This impacted the accuracy and reliability of the footage and there was no evidence of what parts of the original CCTV footage were excluded. There was clear and obvious editing by VP as she moved the iPhone 13 17 T374. 18 Butera at [10]. 19 [2011] QCA 364. 20 Ibid at [59]. -- 13 of 74 -- [2024] SADC 83 12 closer and then away from the iPhone 8.21 This, together with pauses and jumps in the footage, was described by defence counsel as manipulation, and of the footage having no continuity.22 It did not show the entirety of the family meeting. The footage was of very low quality, and without audio of what was said, had negligible relevance.23 35 Defence counsel also raised that there was no evidence as to when and why the original footage was deleted.24 In summary, he submitted that the contents of the exhibit MFI P7, were a secondary recording and no proper basis for admission had been established.25 Ruling 36 On 12 December 2023, I ruled that the footage in MFI P7 was inadmissible. The provenance of the footage, and particularly the copying process was not satisfactorily proved. As a result, it had no, or minimal, probative value. This was compounded by the fact that the footage had no audio, and it was only the position and demeanor of those on screen that could be used as circumstantial evidence. 37 I found this to be a different factual scenario to that considered in Ford where the copies taken were of static images. 38 VP’s evidence was that the sole purpose for editing the footage the way she did was to capture JP’s ‘confession’. I found VP to be an unimpressive witness as she was evasive regarding the parts of the meeting that she copied, and those that she did not. 39 I found that in all the circumstances, the provenance of the edited footage had not been proved. The footage was not helpful to the Court, given its quality and clear editing to suit a purpose. It was also highly prejudicial to JP, in circumstances where he was not aware that CCTV cameras were recording the meeting. This left him with no opportunity to review the full footage before it was deleted. 40 I find that there was no proper basis for the footage in MFIP7 to be admitted. 2. The Family Meeting 41 Before determining the voir dire regarding the family meeting, it is necessary to review the relevant evidence of the witnesses to that meeting. 21 T443. 22 Ibid. 23 T448-449. 24 T450. 25 T490. -- 14 of 74 -- [2024] SADC 83 13 The Evidence The Complainant, BP 42 In the prescribed interview, BP said that when SP told their dad about the sexual offending ‘he went a bit crazy’ and decided to go next door and tell ThP. This led to JP’s parents coming over to discuss the allegations, without JP.26 DP was also contacted and when she arrived, SP told DP of the detail of the allegations.27 43 SP told BP that there were discussions between both sets of parents about forgiving JP and not reporting him to police. ThP then went home to bring back a puppy for BP to make her happy. She rejected this.28 44 Later in the evening after JP came home, he and his parents came over to BP’s house for a family meeting.29 SP and DP sat either side of BP, and JP was sitting across from them. 45 BP told police that JP said he was sorry during the family meeting and called himself stupid. BP said that JP said several times he did not know why he did it, blaming his hormones.30 46 During her in court evidence, BP said she was quite emotional at the family meeting, as were other family members. There was talk about police and what would happen next.31 However, BP had thought the purpose of the meeting was for JP to apologise.32 47 BP gave evidence that the extent of the allegations discussed during the meeting was limited to the lifting of her dress and JP touching her.33 48 BP agreed that she had spoken of JP’s girlfriend, Jenny. She had asked JP what Jenny would have thought of his actions.34 JP spent most of the meeting with his head down.35 In relation to any admission, BP said that JP admitted he had done ‘it’ and he was sorry for ‘it’. She denied that he had said he didn’t remember any offending, but if he had then he was sorry.36 26 Transcript of Prescribed Interview dated 3 July 2021, page 29. 27 Ibid. 28 Page 30. 29 Page 32. 30 Page 32. 31 T164; T168-169. 32 T165. 33 T169. 34 Ibid. 35 Ibid. 36 T169-170. -- 15 of 74 -- [2024] SADC 83 14 The Complainant’s father, PP 49 PP said that either his wife or his brother’s wife, TO had said that JP wanted to say sorry to BP.37 This led to the family meeting. BP, SP and DP were present, beside PP and PV. JP attended with his parents. PP acted as chairman, sitting next to JP, who started apologising. He was looking down in a slouched position and shaking his head. PP described this as JP ‘confessing’.38 PP said he put his hand on JP’s back as he confessed.39 50 PP confirmed that what JP was admitting to was not set out during the meeting. JP could not explain why he had done ‘it’.40 PP denied that he told BP that JP might try and kill himself, before JP came to the meeting, or that JP should say sorry to the family and cooperate.41 51 PP denied asking for money, up to a $1 million dollars, from JP for compensation, but agreed he had discussed police charges. PP told JP it would be best if he pleaded guilty as he would get a more lenient sentence.42 PP said that SP threatened JP, calling him ‘dead meat’.43 She was emotional at the meeting. The Complainant’s sister, SP 52 SP told BP’s parents about the allegations against JP. She told them everything that BP had told her.44 After the allegations were discussed, it was agreed that JP would come over to BP’s house to meet with the families. SP was present and described JP as having his head down.45 SP said that JP was sitting with his parents, opposite her. 53 SP described BP being in tears whilst yelling at JP, calling him a ‘paedophile’, and a child abuser. 54 SP then became involved in setting out an extensive list of all the sexual offending she said BP had told her. This was far more extensive than BP’s evidence of what she had said the allegations were as contained in the prescribed interview.46 I find that this was SP’s approach to her evidence generally. She gave florid descriptions of the extensive alleged sexual acts. 55 SP described JP’s parents as being afraid he would go to jail and they did not want SP to report the matter to police, or for BP to go to a psychologist who would then have to report JP to police.47 Towards the end of the meeting, she said that, JP 37 T223. 38 T225. 39 T279. 40 T227. 41 T278-279. 42 T280. 43 T287. 44 T320. 45 T323. 46 T325. 47 T326. -- 16 of 74 -- [2024] SADC 83 15 ‘openly admitted that he had committed’ all of the described acts. He said what he did was wrong and promised never to do it again. JP described himself as the ‘worst of the worst’ and said he should not have done it.48 56 SP said JP wanted to come over to her father’s house and no one told him what to say.49 I pause to note that SP was not with JP before the meeting started, and as a result that statement is hearsay and of no evidentiary value. 57 In cross examination, SP was very defensive and exaggerated portions of her evidence, particularly in relation to the allegations discussed at the meeting. She denied that anyone at the family meeting called JP ‘dead meat’, but agreed that the first time she spoke to JP about the allegations was at the meeting.50 She confirmed that JP admitted to the offending, after BP had recounted it in detail to him.51 The Complainant’s mother, PV (through an interpreter) 58 PV gave her evidence in a highly emotional way, often yelling her answers. I found that she had a script that involved ensuring JP was convicted. This often meant she did not answer the question put to her, but provided her own narrative. This was unhelpful and impacted her reliability. 59 In relation to the family meeting, PV described JP as looking very serious, and worried.52 As SP was speaking, JP’s head was down, and he was not looking at the others. However, as a result of her limited understanding of English, PV did not know what was being said by SP, or JP’s responses. She agreed that SP was very angry.53 60 PV then gave evidence that she did understand BP asking JP why he had done ‘it’ to her and JP apologising. She also said that Jenny was mentioned as JP’s girlfriend, and what would she think about what JP had done.54 61 PV said that she spoke at the meeting, acknowledging BP’s suffering and asking if she could forgive JP this one time. BP was said to have responded ‘no mum, no mum’.55 PV described JP as being a ‘…very, very good boy at the meeting’.56 She described JP as coming to their house to confess.57 The Complainant’s sister, DP 62 DP said that she found out about the allegations when SP called her and told her BP’s allegations. She later went to her father’s home and spoke to SP and BP. 48 T327. 49 T327. 50 T344. 51 T345-346. 52 T362. 53 T485. 54 T363. 55 T364. 56 Ibid. 57 T367. -- 17 of 74 -- [2024] SADC 83 16 The extent of the allegations said to have been told to DP by SP went well beyond the pleaded allegations in the Information. DP said the allegations included giving JP ‘head’ under his study table on multiple occasions; JP getting BP under the sheets to touch her and finger her, and JP locking BP in the bathroom so she would give him head a few times. 63 Although this is hearsay evidence, and bears no value in determining JP’s guilt, I find it relevant to assessing DP’s credibility and reliability as a witness.58 64 DP said that after discussing the allegations, she was walking to her car when JP’s mother (TO) came out and told her that JP had admitted the offending and wanted to talk to their family. DP’s evidence was when she said it was late, TO said that JP was insisting that the two families speak. She agreed to stay, and the family meeting proceeded.59 65 DP’s evidence was that JP walked into the meeting with his head down and did not look at anyone. 66 DP asked JP why he had done it? He then apologised, and explained he had some kind of ‘urge’ and did not know what he was doing at the time. DP said that no one put the actual allegations to JP during the meeting, accepting that TO had already confronted him.60 She did however ask what Jenny would think of the offending.61 67 DP said that JP’s father told them all that no one was to tell anyone else about the offending.62 DP did not hear SP call JP ‘dead meat’, nor did she hear BP level accusations at him, such as him being a paedophile.63 She did not agree that PP was acting as chairman, or that he ever put his arm on JP’s back.64 The Accused, JP 68 JP’s evidence was that he was blindsided by the allegations made by BP when he arrived home on a Saturday afternoon in June 2021. He had seen PP speaking with his father, and he was then called in to speak to his parents. He was told that BP alleged that he had touched her five to seven years prior. His parents wanted him to come over to BP’s home to discuss these allegations with BP’s parents.65 They were worried about her and threats of her running away to Queensland and suicide was also mentioned. JP’s own mother put pressure on him to go next door. JP’s evidence was that he was ‘basically forced to go over there’.66 I took this to mean culturally and psychologically pressured. JP confirmed that in Vietnamese 58 i.e. cross examination of DP at T439.1-11. 59 T421. 60 T423. 61 T424. 62 T426-427. 63 T429. 64 T430 65 T520-522. 66 T522; T549. -- 18 of 74 -- [2024] SADC 83 17 culture a younger person does not talk back to, or challenge elders.67JP described this as him feeling a sense of obligation to attend the family meeting. 69 JP was aware of PV’s previous attempts on her life. He described her as ‘crazy’.68 70 JP confirmed that when they went next door, he was taken into the family room. PP, PV, SP, DP and BP were present. Both of JP’s parents were with him. PP told JP where to sit; on a couch between PP and his own father. BP, SP and DP sat opposite. JP agreed that PP took on a chairman like role.69JP’s evidence was that SP spoke at the meeting first. She was dominant and ‘attacking’ throughout the family meeting as she pressed JP regarding the alleged offending. She accused JP of touching BP, and lifting up her dress. SP also called him ‘dead meat’ and a paedophile. As SP kept pressing JP, he said ‘I don’t remember doing it, but if I did it, I’m sorry’.70 This was in response to SP’s limited allegations. 71 When asked about this confession, JP said that this was the only line he could use to help his uncle, PP. His evidence was that PP told him that when allegations were put, he should not argue and just agree.71 JP described this as following his uncle’s orders or instructions.72 72 JP also said that before SP confronted him at the family meeting his parents had said that the allegations regarding BP involved touching her and lifting her dress. That was the extent of the allegations, and JP denied his parents ever put anything further to him before the family meeting. He also denied that he went to the meeting to apologise for the more extensive allegations now part of the charge against him; or to stop any report to police.73 73 JP denied that he had touched BP. 74 JP spoke of other pressure upon him at the meeting. This included BP asking him about his girlfriend Jenny, and saying he should break up with her.74 JP also thought BP called him a paedophile.75 He was not however physically prevented from leaving the family meeting.76 JP remained, while SP made her allegations. He decided to keep his head down. He agreed he shook his head as she spoke, and PP might have patted him on the back. He said he was upset and tired.77 67 T525-526. 68 T522-523. 69 T524-525. 70 T526; T528. 71 T530. 72 T561. 73 T545-547; T561. 74 T527; T528. 75 T528. 76 T528; T549. 77 T528-529. -- 19 of 74 -- [2024] SADC 83 18 75 JP denied that SP ever put the extensive allegations of sexual abuse to him at the family meeting, including the fondling of his penis and him touching BP’s vagina.78 76 JP explained that he did not get along well with SP before the allegations were made. He understood SP hated him.79 However, he was close to PP.80 The Accused’s father, ThP 77 On 26 June 2021, PP came over to his home to speak to ThP and his wife, and ask them to come over to his house to discuss an issue. When ThP and PV arrived next door BP, DP and SP were present. SP told them that about five to seven years before JP had touched BP and lifted up her skirt.81 78 ThP gave evidence that PP, his brother, said to let SP and others say what they wanted to as he was worried for BP’s well-being. PP said she may try to commit suicide like her mother had previously threatened.82 79 When JP came home, ThP asked him if he had touched BP or lifted her dress about three years ago. JP denied it.83 ThP then asked JP to come next door and speak to PP and PV, as they were worried about BP. ThP agreed that he had said to JP that his uncle was worried about BP running away or committing suicide.84 JP said it was late and he was tired, but out of love for his family, he would go next door and help them. ThP pressured JP to go over to his brother’s house. PV also encouraged him to go over.85 80 When ThP arrived at PP’s house, he told him that JP denied ‘doing it’. PP still wanted JP to come in and listen to what his daughters wanted to say. The family meeting then proceeded.86 ThP confirmed JP’s version of the meeting, namely that: (1) SP alleged that JP had touched BP five to seven years ago, and lifted her dress; (2) JP said he could not remember doing it, but if he did, he was sorry. 81 ThP gave evidence that SP had said that JP was ‘dead meat’. She raised the topic of his girlfriend Jenny. During the family meeting JP was very angry and just looked at the floor.87 78 T547. 79 T533-534. 80 T542. 81 T631. 82 T631. 83 T632. 84 T633. 85 T634. 86 T635. 87 T635-636. -- 20 of 74 -- [2024] SADC 83 19 82 In cross examination, ThP said he now regrets using his parental authority to force JP to go over and help PP. He also emphasised that the only allegations made were that JP touched BP and lifted her skirt.88 83 ThP denied that during the family meeting, JP admitted he had touched BP because he was a young, dumb, horny, hormonal teenager; or because he had urges.89 He confirmed that PP and PV were worried about BP before the meeting as she had been trying to run away to Queensland, and they were worried she may commit suicide.90 Consideration 84 Defence counsel argued that the evidence of the family meeting should be excluded upon the basis that any admissions made by JP were impacted by the circumstances of the meeting; and that those admissions were not made voluntarily. 85 Whilst I acknowledge that issue, and the family and cultural issues that led to JP agreeing to attend the family meeting, I am of the view that the more important factual issue to be determined is what JP was admitting. This is highly relevant as, on BP’s evidence, the only allegation being discussed was of JP lifting her dress and touching her. The nature of that touching was not described. BP was adamant that this incident was what the meeting was about.91 86 This evidence is inconsistent with SP’s evidence that BP was yelling at JP and calling him a paedophile. I prefer BP’s version of events, given that the allegations were about her. 87 SP was an angry and defensive witness, who became argumentative when challenged by defence counsel. She seemed determined to see JP punished and I find that this impacted the reliability of her evidence. She agreed that she had said to BP that she hated JP before any allegations were made. 88 SP was not privy to the discussions between BP’s parents, JP, and his parents. She was therefore not aware what allegations had been discussed before the family meeting. Her evidence was that JP said sorry for his actions, after BP had told everyone what had happened to her. This was in direct conflict to the evidence at both BP and PP. 89 SP’s step-mother PV agreed that SP spoke a lot at the family meeting, and JP apologised. Her evidence did not assist in determining what JP apologised for. 88 T632. 89 T653. 90 T654. 91 T169. -- 21 of 74 -- [2024] SADC 83 20 90 BP’s father, in his evidence, said that it was unclear what JP was admitting as no precise allegations were put. He assumed that JP knew from early discussions.92 91 DP’s evidence regarding the family meeting was based on hearsay regarding the allegations made by BP. She however confirmed that no allegations were put to JP at the family meeting. She did not hear BP call JP a paedophile. 92 JP’s evidence was that SP took control of the meeting. She accused him of touching BP and lifting up her dress. JP said, ‘I don’t remember doing it, but if I did I’m sorry’. This was the extent of the admission.93 93 The allegations made by BP regarding the extent of the sexual touching put at the family meeting, i.e., lifting her dress and touching her, was what JP said his parents had told him before the meeting. This was also the extent of what was put by SP to JP at the meeting. 94 This was consistent with ThP’s evidence. That is, the only allegations discussed were that JP touched BP and lifted her dress. 95 I find that the evidence does not reach any higher than JP admitting to lifting BP’s dress on one occasion and touching her in some undefined way. I am not satisfied that JP was made aware of the extent of the allegations, as particularised in the amended information, before, or at the family meeting. BP herself confirms that the only allegation put at the meeting was the uplifting of her dress. Ruling 96 While I find that it is not necessary to determine whether JP’s attendance at the family meeting and any ‘confession’ was voluntary, so as to exclude the meeting from my consideration, I find it is likely that JP felt pressure to attend the meeting, and appease his uncle. However, taking into account all of the extraneous circumstances of the family meeting (familial pressure, extent of the allegations not put etc), any unfairness to JP is ameliorated. This is because the evidence is unclear in relation to what JP is admitting to, but this evidence is so limited in its uses, and of such limited value that any potential unfairness to JP is inconsequential. 97 I cannot find on the evidence that JP admitted to the offending which forms the basis of the charge, as set out in the amended Information. The evidence supports a finding that at the family meeting the only allegation put to JP was uplifting BP’s dress and some, undefined touching. This is what JP apologised for. This leads to a conclusion that if JP did apologise it was only for an uncharged act. 92 T226-227. 93 T526, T528. -- 22 of 74 -- [2024] SADC 83 21 98 The evidence of the family meeting can only really be used to demonstrate the contextual background for how the allegations were put to JP and his family, as well as the credibility of the participants. Evidence of Offending 99 I now set out the evidence relevant to the alleged offending taking account of my rulings. 1. The Prosecution case The complainant, BP 100 BP’s evidence was comprised of the prescribed interview conducted by Detective Brevet Sergeant Munn (now Brown) on 3 July 2021, and sworn evidence given on Wednesday 6 December 2023 via CCTV with a court companion present. (i) The Prescribed Interview 101 I found the recording of the prescribed interview to be sub-standard, as the video and audio quality was poor, making it challenging to determine BP’s evidence and to assess her demeanor. I set out below a summary of BP’s evidence. 102 BP confirmed her date of birth. She has one brother JaP who lives at home with her and their parents. She also has three half siblings.94 BP confirmed that JP was her cousin and lived next door.95 103 BP said that she could not recall when the offending began.96 She said that she thought it had stopped when she was in year 3, because she did not remember anything happening after she commenced year 4.97 104 In describing the offending, BP said that one day, she had been at JP’s house and was hanging out with his sister (AP). BP kept going into JP’s room and he forced her to go under his table in his bedroom. By force, BP said that she meant he asked her to do so, and JP did not physically force her under the table.98 JP then took off his pants and asked BP to touch his penis.99 This type of sexual offending occurred more than one time.100 JP shared a bedroom with his brother, MP. The offending would happen when MP was not in the room.101 BP could not remember the words JP said when he asked her to get under the table.102 105 BP could not describe how, or in what way, JP made her ‘play with his penis’. She said there were a lot of things she could not remember.103 She maintained that 94 Transcript of Prescribed Interview dated 3 July 2021, pages 4-5 (Exhibit MFI P2). 95 Ibid, page 6. 96 Ibid. 97 Ibid, page 7. 98 Ibid, page 8. 99 Ibid, page 7. 100 Ibid. 101 Ibid, page 8. 102 Ibid. 103 Ibid, page 9. -- 23 of 74 -- [2024] SADC 83 22 this happened under the desk on several occasions but could not pinpoint how many.104 Afterwards, JP would pull up his pants and act as though nothing had happened.105 His parents, and siblings were in the house when this occurred.106 106 BP said that JP was 14 years older than her, and that she thought he was still in high school or at university when the first incident under the table happened. BP said that she did not think that JP had a job at the time of the offending.107 107 BP then gave evidence regarding the layout of JP’s bedroom. She said that he shared a room with MP, and they shared a bunkbed. JP slept on the bottom bed and his brother slept at the top. They had two desks on the opposite side of the room and a cupboard. BP completed a drawing of the bedroom.108 108 BP said that she and her brother, JaP, would typically go over to her cousins’ house together but when the incident under the table occurred, she had gone over to JP’s house alone. She also said that JP had been wearing either sweatpants or pyjamas at the time.109 109 The next incident BP spoke about was when JP took her into the bathroom, which had recently been renovated, and he told her to put his penis in her mouth.110 JP had said to her ‘let’s go to the bathroom’ and BP followed him in. BP said that she told JP that she did not want to do it. He responded with ‘I’m gonna tell my mum that you did this’.111 BP said she could not exactly remember what JP was threatening her with.112 BP said that JP continued to threaten her until she finally put his penis in her mouth. She said she recalled him telling her ‘to do it as deep as I could’113. BP said this occurred only once.114 BP also said that this occurred behind the door of the bathroom.115 On the agreed fact, this was after the bathroom was renovated in October 2014, and therefore BP was at least seven years old. 110 BP said that she did not remember what word JP used to describe his penis, but that she did know that this was what he was asking her to do.116 She described that she was standing as this occurred. She thought she was probably JP’s waist height at the time.117 BP said that she did not think anything came out of the JP’s penis, and that he was holding it whilst it was in her mouth.118 BP could not recall 104 Ibid. 105 Ibid, page 10. 106 Ibid. 107 Ibid, page 11. 108 Exhibit P3. 109 Transcript of Prescribed Interview dated 3 July 2021, page 11 (Exhibit MFI P2) 110 Ibid, page 14. 111 Ibid. 112 Ibid. 113 Ibid, page 16. 114 Ibid, page 14. 115 Ibid, page 15. 116 Ibid, page 16. 117 Ibid. 118 Ibid, pages 16-17. -- 24 of 74 -- [2024] SADC 83 23 what JP was doing whilst his penis was in her mouth, but she said she thought he may have just been standing still.119 111 BP said she recalled saying to JP ‘oh look, I did it deep’ and then afterwards, he pulled his pants up.120 On this occasion, the rest of JP’s family were again all home.121 She said that afterwards, she went home and acted as though nothing had happened.122 112 The third incident BP told police of occurred in JP’s bedroom. She said that the two of them were sitting, and laying on his bed, and that she was not wearing a shirt for some reason.123 JP was hugging BP, when he told her to take off her underwear. BP said no, and she said she thought that he then started touching her genitals.124 She does not remember taking her underwear off.125 No one else was in the room at the time, but BP said that JP’s family were again in the house.126 113 BP said that whilst they were on the bed, and her top was off, JP hugged her from behind, and put his arms around to her front.127 BP said that on this occasion JP did not go inside of her vagina, and he was touching her on her underwear.128 She said that JP’s hand was ‘just over it’. However, when asked whether JP’s hand was over or under her underwear, she said that his hand was underneath.129 BP said that JP was just ‘patting it and touching it’.130 114 BP then described another incident, which occurred when she was around 8 or 9 years old. BP said that she was a wearing a dress and was sitting on JP’s bed whilst he was sitting at his computer desk.131 BP said that there was a tub of gummy worms on JP’s desk, and she had walked over to have some. JP told her that she could not. BP said that JP then lifted up her dress and looked at her underwear.132 115 BP said that she would hang around the JP’s house and in his bedroom a lot.133 She described an occasion where she had been learning about sexual health at school, and she said the word ‘penis’ around JP. He told her that she could not say words like that. 134 119 Ibid, page 17. 120 Ibid. 121 Ibid. 122 Ibid, page 18. 123 Ibid. 124 Ibid. 125 Ibid. 126 Ibid, page 19. 127 Ibid, page 19. 128 Ibid, page 20. 129 Ibid. 130 Ibid. 131 Ibid. 132 Ibid, page 21. 133 Ibid. 134 Ibid. -- 25 of 74 -- [2024] SADC 83 24 116 When asked why she thought the offending stopped when she was in year 3, BP said that she did not remember anything happening in year 4 and 5.135 During the interview she was able to name her year 4 and 5 teachers.136 117 BP told police about another scenario where JP had given her his phone to play with, and she looked at his YouTube search and said that he had been looking up ‘woman breast feeding a baby’.137 The context for this evidence was not clear. 118 A summary of the sexual offending BP described in the prescribed interview was confirmed by BP to be:138 • The first time in JP’s bedroom when he asked BP to touch his penis under his desk. BP said this happened many times, but she could not say how many times, nor could she say over how many years or months. • The second time was when they were in the bathroom and JP asked BP to put his penis in her mouth. • The third time was on JP’s bed when BP was topless, and he touched her on the vagina. BP said she thought this happened one time. 119 BP said that she realised that what JP had done to her was bad during year 5, after she had camp where she was told that if someone goes to touch you ‘you just scream out and yell’. BP said that she knew what JP had done to her was bad before this, but she did not speak up about it because she felt embarrassed.139 120 The first person whom BP told about the offending was her cousin, LP. This was via text message in 2019 (two years before the prescribed interview took place).140 BP said that she told LP ‘Oh I have to tell you something, I’ve been sexually assaulted by JP’.141 BP said that these messages were via the Instagram platform, but she has since deleted the messages.142 121 This conversation occurred when SP was plucking BP’s eyebrows, and they had been speaking about their cousins. SP brought up that she hated JP. BP then said words to the effect of ‘I have to tell you something, but you can’t tell anyone’, and proceeded to disclose the offending to SP.143 122 BP said that SP wanted to go to the police. BP was too awkward to disclose the offending to her parents, so she asked SP to tell them, which she did.144 BP said 135 Ibid, page 22. 136 Ibid. 137 Ibid. 138 Ibid, pages 23-24. 139 Ibid, page 25. 140 Ibid, page 26. 141 Ibid, page 27. 142 Ibid. 143 Ibid, page 28. 144 Ibid, page 28. -- 26 of 74 -- [2024] SADC 83 25 this conversation took place in her bedroom. Both of her parents, SP, and her younger brother JaT were present during this conversation.145 123 BP said that her father said words to the effect of ‘if you report this to the police, you will never be able to come here ever again, and I never want to talk to you’. 146 BP said that her father also said words to BP’s mother, to the effect of ‘if you were at home to actually look after her this would not have happened’.147 124 BP said that her parents spoke about telling JP’s parents of the allegations. BP said her father went outside for a smoke in the backyard, and then JP’s parents came over to their home. BP said that JP’s parents said words to the effect of ‘Oh thank the lord he didn’t actually rape her, or like, go inside her or anything’.148 125 The next person who became aware of the allegations was BP’s half sister, DP. BP said that SP called her and told her about the allegations over the phone.149 126 BP’s parents wanted her to forgive JP and told her that if she wanted to throw him in jail, she would be ruining his life because he would lose his girlfriend and his job.150 BP said she felt that her parents were defending JP.151 127 BP said that soon afterwards, her uncle brought over a puppy and said ‘oh I better give you this puppy so you can be happy and everything’ and BP said that she did not want a puppy.152 BP said that the puppy was returned to her uncle’s home.153 (ii) Examination in Chief 128 The parties agreed on discrete issues upon which the Prosecutor could further examine BP. In response to a question, BP said that during the incident where JP made her touch his penis under his desk, she felt grossed out.154 When asked whether this incident changed the way she acted around JP, BP said it did not because it would have been weird to change the way she acted around her cousins, and she did not want anyone else to know about the incident.155 129 BP said that she knew that JP’s conduct was wrong. She said that before the year 5 excursion, her mother had told her that if anyone were to touch her, she should yell and ask for help.156 BP confirmed that the first person she spoke to about the allegations was her cousin, LP. She said she did not tell anyone sooner because she was embarrassed, and felt a sense of shame. She did not want people 145 Ibid, page 29. 146 Ibid. 147 Ibid. 148 Ibid. 149 Ibid. 150 Ibid, page 30. 151 Ibid. 152 Ibid. 153 Ibid, page 31. 154 Transcript 107. 155 T107. 156 T111. -- 27 of 74 -- [2024] SADC 83 26 to look at her differently.157 BP said she told LP because she was her closest cousin growing up. 130 BP deleted the messages where she disclosed the offending to LP because she did not want anyone to find out about them, as she thought she might get in trouble.158 (iii) Cross Examination 131 BP said she could not pinpoint the years during which the offending occurred, but said that she knew from year 5 onwards it did not continue.159 She confirmed that the alleged offending occurred when she was 5 to 6 years old and took place over a couple of years.160 132 BP confirmed that during the period of the allegations, she was living with her parents, and her younger brother.161 None of the children from her father’s first marriage, TP, SP or DP lived with them.162 She was unaware of any intervention order taken out against her father by his first wife, KL. BP was also unaware of any criminal allegations made by KL against her father.163 BP confirmed however that the three children from her father’s first marriage, did not get along with her mother, PV.164 133 BP confirmed that JP lived next door with his parents, and his two siblings MP and AP. BP confirmed that JP and his brother shared a bedroom.165 134 BP agreed that the main form of contact between the two households was family gatherings, as her father had many siblings, and the families would regularly get together.166 These gatherings would take place in several different houses; not always held at the same one.167 BP agreed that the children would hang out in groups during these family gatherings, typically according to gender.168BP agreed that she fought with JaP during family gatherings.169 135 In relation to AP, the accused’s sister, BP maintained that she would visit JP’s house at times for the purpose of hanging out with AP. She told the court that she would go over to JP’s house to watch Barbie movies, learn to braid hair and read with AP.170 BP disagreed with the proposition that this never occurred.171 BP 157 Ibid. 158 Ibid. 159 T113. 160 T115. 161 T116. 162 T116. 163 T117. 164 Ibid. 165 T118. 166 T118. 167 T119. 168 T120. 169 T130. 170 T121. 171 T122. -- 28 of 74 -- [2024] SADC 83 27 affirmed some general evidence about contextual details relating to JP’s household, agreeing that AP was a homebody and studied a lot, and that JP and his brother MP played computer games together in their shared bedroom.172 BP said that at the time of the alleged offending, MP was not in the room, but she could not specify where he was in the house.173 136 BP agreed that JP and MP would travel to and from University together.174 She agreed that their parents were strict, and she remembered both being home a lot.175BP gave evidence that the JP’s mother would babysit her and JaP during the school holidays.176 This occurred during primary school when their own mother was working.177 BP disagreed with the proposition that this never occurred.178 137 BP confirmed that all of JP’s immediate family would have been home during the alleged offending. She could not say where the other family members were but maintained that they were not in the room at the time.179 She also agreed that JP’s parents required bedroom doors to remain open, but there were occasions when JP’s door would be closed, for example, when the older cousins wanted to keep the younger children out.180 138 In relation to the allegations, BP agreed the first time anything occurred was in JP’s bedroom.181 She said that she was made to touch JP’s penis on several occasions, but she could not specify how many times, nor the first time it occurred.182 She agreed that she told police that JP was wearing ‘pyjamas or sweatpants’ at the time.183 139 BP was asked a series of questions pertaining to her proofing meeting before trial with the DPP on Wednesday 29 November 2023.184 She confirmed that there was a discussion about what kind of questions she would be asked during the trial by defence counsel.185 BP said that she also spoke to her father and sister, SP, about her evidence.186 This conversation took place during dinner, a couple of days before the trial commenced. They spoke about their evidence and defence assumptions, and her sister said that they were not supposed to talk about these topics.187 BP said 172 T122-T125. 173 T125. 174 T126. 175 T126-T127. 176 T128. 177 T129. 178 T130. 179 T131. 180 T132. 181 T133. 182 Ibid. 183 T134. 184 T142. 185 Ibid. 186 Ibid. 187 T144. -- 29 of 74 -- [2024] SADC 83 28 that it was mostly her father speaking and telling them that their lawyers would be trying to make them look bad in court.188 140 BP said that she was wearing pyjamas during the incident on the bed.189 She said that JP touched her private part under her underwear. When asked why she was wearing pyjamas at JP’s house, BP said that because their house was next door, and she just would not change her clothes at times.190 BP could not confirm at what time of day this incident occurred.191 BP said that JP had told her to take off her pyjama top, which she did.192 She could not identify what time of year it was, or whether there were other people in the house at the time of this incident.193 141 In relation to the bathroom incident, BP said it occurred after the bathroom had been renovated.194 JP’s mother was home, but BP did not know where his siblings or father were.195 BP could not identify what JP was wearing, or what she was wearing; what time of year it was; or what time of the day on this occasion. BP said that this occurred only once.196 She could not recall whether JP had ejaculated.197 142 BP disagreed with the proposition that these incidents did not occur.198 143 In relation to the time where BP accessed JP’s phone, she said that she and JP were in his bedroom.199 BP could not explain why she was there on her own, and she did not know the location of MP, or the rest of JP’s family.200 BP confirmed that she saw a video related to breastfeeding on JP’s phone. This occurred during the period of the allegations.201 144 In relation to the incident when BP was wearing a skirt and JP up skirted her, BP said she would have been approximately 9 years of age, and the dress was red with a cartoon character on the front of it.202 BP said that the dress was a gift from JP’s mother.203 145 On the topic of being gifted a puppy by JP’s father, BP maintained her position that this did occur.204 BP said this occurred a couple of days after she disclosed the allegations to SP.205 BP said she thought the puppy was a toy poodle, 188 T146. 189 Ibid. 190 T147. 191 T148. 192 Ibid. 193 T149. 194 T150. 195 Ibid. 196 T151. 197 Ibid. 198 T153. 199 T155. 200 T156. 201 Ibid. 202 T159. 203 Ibid. 204 Ibid. 205 T161. -- 30 of 74 -- [2024] SADC 83 29 and that JP’s father was a dog breeder.206 It was put to BP that this puppy in-fact belonged to AP, to which BP said she was not sure which dog that was.207 BP maintained that AP had nothing to do with the puppy that was brought over to her.208 146 In relation to her evidence regarding who she first disclosed the allegations to, BP confirmed that she first told a cousin LP via Instagram, but that the messages had since been deleted.209 BP confirmed that the next person she told was SP.210 BP confirmed that SP did not like JP, but denied that SP had said that she hated him.211 147 BP confirmed in her evidence that there was an occasion where SP was talking about leaving a vibrator at her boyfriend’s place.212 BP said she thought this occurred after the period of alleged offending.213 148 BP gave her evidence with no emotion. She could provide little or no detail of the circumstances surrounding the alleged offending, including what time of day she would be at her cousins’ place. When pressed to provide details, her responses were vague. She could not describe how or in what way JP made her play with his penis; nor how many times that offending occurred. She said she was threatened if she did not fellate JP but could not recall what those threats involved. 149 In relation to the offending on JP’s bed, BP added that JP did not have a shirt on, but she did not know why. She did not recall taking her underwear off to allow JP to touch her. BP’s evidence was contradictory as to whether she had kept her underwear on or not. Later in cross examination, BP said she had her pyjamas on. This was the first time this version was given. 150 I found there were several inconsistencies in BP’s evidence. She admitted that there were a lot of things that she did not remember. Whilst she was young when the offending occurred, I find that some of those inconsistencies cannot be explained by BP’s age. BP’s father - PP 151 BP’s father was first married to KL, with whom he had three children, TP, SP and DP.214 They separated in 2004.215 PP met his current wife, PV, when he went back to Vietnam after his divorce was finalised.216 They returned to Adelaide in 206 Ibid. 207 T161-T162. 208 T163. 209 T172. 210 Ibid. 211 T173. 212 Ibid. 213 T174. 214 Ibid. 215 T191. 216 Ibid. -- 31 of 74 -- [2024] SADC 83 30 2006.217 PP has two children with PV, being BP, and his younger son, JaP.218 The family lives next door to his brother’s family. 219 152 PP is employed as a refrigeration mechanic and is an electrician by trade.220 At the time of the alleged offending, he was working full-time, and was often on 24-hour call.221 PP gave evidence that his wife did not commence working until JaP was approximately two years old.222 He said that she worked as a cleaner at a bakery shop from 3:00pm until 5:00pm during the period of 2013-2015.223 He could not recall how many days per week she worked.224 153 PP then gave some evidence about the gate that was installed between his property and that of his brother.225 He said it was built after the house was finished.226 An aerial photograph showing PP’s property was tendered by the Prosecution.227 PP said that the gate was used frequently by both households, for example, whenever there was a family gathering, or over the fence conversations.228 He said that his children would use the gate to access the properties, when there was a party/family gathering, or when they were sent to borrow items etc.229 154 PP said that BP would go next door most often when the family would go over there for lunch or dinner.230 He said that he did not always monitor BP during family functions and it was normal for her to go into different rooms.231 PP could not recall explicitly seeing BP and JP spending time together. He could also not recall whether JP’s two siblings were always present during the times his family would visit.232 PP could not comment on what his niece, AP, was doing during the family gatherings.233 155 PP was shown a floorplan of his brother’s home next door, which he had drawn and labelled.234 This was tendered by the Prosecution.235 During his evidence, PP amended this layout of the house, when he recalled that in 2013, JP was living in one bedroom and his brother MP had moved into bedroom number 3. JP’s 217 Ibid. 218 T192. 219 Ibid. 220 T193. 221 Ibid. 222 Ibid. 223 Ibid. 224 T194. 225 T194-198. 226 T194. 227 Exhibit P4. 228 T196. 229 T197. 230 T199. 231 Ibid. 232 T200. 233 T201. 234 T202. 235 Exhibit P5. -- 32 of 74 -- [2024] SADC 83 31 parents had moved to sleep in the rumpus room.236 He said that this change occurred when JP’s family were doing modifications to the bathroom adjacent to the boys’ bedroom.237 PP said that MP thereafter remained in bedroom number 3 for the duration of his studies. This included the period of the alleged offending.238 I pause to note that PP is the only witness who gave evidence that JP and MP did not share a bedroom around the time of the alleged offending. His evidence is in direct conflict with that of BP, who clearly stated that the boys shared a bedroom. 156 PP said that during family gatherings the door was often closed because JP and his brother would play video games in their room.239 He knew this because he would have to walk past JP’s room to go to the bathroom.240 PP said that AP’s door was also frequently closed.241 157 PP later said that during the period of the alleged offending, JP and his brother would be in the room together, when BP and JaP were there.242 158 PP said that he first became aware of the allegations involving JP when his daughter SP told him she had something serious to speak to him about. When PV came home, they all gathered inside a bedroom. This also included DP.243 SP told them in Vietnamese that: ‘Jason asked Britney to fondle his penis’, and had asked BP to ‘suck his dick’. PP was very shocked, and BP was crying.244 I pause to note that this evidence is hearsay and can only be used to establish how PP learned of the allegations. It is not complaint evidence.245 159 PP said that SP wanted to report JP to the police, but he was worried about the impact on his family and JP’s future.246 PP’s wife suggested that they should go and speak to JP’s parents about the allegations before going to the police.247 PP said that SP wanted to immediately take BP to the police, but PP thought the best way he would be able to help in the situation was to speak to JP and ask him to see a lawyer.248 160 PP was taken to footage from an iPad showing JP’s bedroom. He confirmed that it had been downloaded onto a disc from an iPad used by BP and JaP.249 PP 236 T211. 237 Ibid. 238 T212. 239 T204. 240 Ibid. 241 Ibid. 242 T205. 243 T218. 244 Ibid. 245 T220. 246 Ibid. 247 T221. 248 Ibid. 249 Exhibit MFI P8. -- 33 of 74 -- [2024] SADC 83 32 identified that the footage showed BP, JaP, JP, and MP in JP’s bedroom.250 PP said that JaP was approximately 4 years old in the footage.251 161 Under cross-examination, PP could not confirm the date the iPad footage was recorded.252 He conceded that the footage depicted two bunk beds, and both JP and MP were living in the room at the time.253 However, PP disagreed with the proposition that MP moved out of the bedroom in 2018, and maintained that he moved out in 2013. PP disagreed with the proposition that he was attempting to create an opportunity for JP to be alone in his room with BP. 162 PP agreed that on 30 November 2023, he sent the following email to the investigating officer who he knows as Sarah:254 After today’s procedure, I realise that we have to prove Britney went to his room by herself. We both only remembered she went in his room when there was a party with all the kids together or when our family came over for dinner. 163 PP said that the investigating officer did not raise any issues in establishing the evidence to prove the Prosecution case. PP said that he himself had thought about the case. When pressed he became evasive, and his evidence made no sense.255 He attempted to keep his evidence within the narrative he wanted to put before the court. 164 PP was asked a series of questions pertaining to his first marriage and the allegations he was the subject of.256 These included rape and assault. His evidence was that police had said ‘Phi, I never see a person like you, have been charged and you can come right to the police and complain’.257 This description of a police investigation is an example of how PP gave his evidence. It was exaggerated and, I found unreliable. 165 PP agreed that there was an Intervention Order issued against him by his former wife, and their three children.258 Due to the Intervention Order, PP said he did not resume contact with the three children of his first marriage until 2016/2017.259 His evidence was confusing as to why that was, except that he could not make the regular commitment to see the children on weekends.260 166 PP later gave evidence that he could not remember what year contact with his children resumed. He also refused to concede that when he first told police about the layout of his brother’s home, that he said the two boys (JP and MP) were 250 T256. 251 T257. 252 Ibid. 253 T258. 254 T260; Exhibit MFI D9. 255 T261. 256 T265. 257 Ibid. 258 T267. 259 T268. 260 Ibid. -- 34 of 74 -- [2024] SADC 83 33 sharing a room.261 It was put to PP that in the plan he drew of the home for police, it had JP and MP in the same bedroom.262 He became combative, refusing to answer direct questions put to him on this topic.263 167 In relation to the relationship between PV and PP’s three older children, PP did not accept there were issues between them.264 PP could not recall an instance where an argument occurred between him and PV regarding a dental bill for BP.265 He also could not recall an instance where SP, DP and TP called PV ‘the wicked witch’.266 This part of the evidence was not persuasive as PP refused to answer simple questions. He remained evasive and gave the impression of not wanting to answer a question that he thought might damage his version of events. 168 PP confirmed his evidence that the day after the family meeting, JP’s father brought a poodle puppy over to the house for the purpose of gifting it to BP.267 In relation to his evidence regarding the gift of a bell to BP by the accused, PP could not recall that the first time he mentioned to the police JP gifting a bell to BP was a week prior to the commencement of the trial.268 However, by his evidence, the gift of the bell was not around the time of the family meeting. 169 PP said that no conversation took place between him and his children in relation to the evidence they would be giving during the trial. However, PP said that it was human nature for a ‘slip of the tongue’ to sometimes occur. BP and SP kept reminding him that they were not permitted to talk about the proceedings.269 Again, I found that evidence unconvincing. He used the term ‘slip of the tongue’ several times. This suggested that PP had in fact spoken about the evidence his family should give at trial. 170 As the cross-examination continued, PP became increasingly argumentative and resistant to answering direct questions. This occurred in relation to the allegations made against PP by his ex-wife, KL. PP gave evidence that in his police interview, the officer had said words to the effect of the observation: ‘I never see someone has been charged and come straight to the police’.270 PP was then shown the video of his police interview of 2005.271 The admissibility of this video was left as a piece of evidence I was to determine in relation to the allegation that MP came over to his house and attempted to have the CCTV footage of the family meeting deleted. 261 T273. 262 Exhibit P5. 263 T271 – T273 264 T273. 265 T274. 266 T275. 267 T289. 268 T290. 269 T292. 270 T293. 271 T299; Exhibit MFI P10. -- 35 of 74 -- [2024] SADC 83 34 171 In reviewing PP’s evidence, and the manner in which he presented, I found him to be unreliable. He refused to answer questions that he thought might contradict the Prosecution case. In this regard, PP agreed that he never told anyone about MP and JP being in different bedrooms until he gave evidence in court. That was because he just suddenly recalled it.272 I do not accept that evidence. BP’s sister - SP 172 SP is the daughter of PP and KL and was born on 23 April 1996.273 BP and her brother JaP are SP’s half siblings.274 Between 2013 and 2015, SP would visit her father’s home every couple of weeks.275 She recalled there was a period of time after her parent’s separation that she did not see her father, as she was told she was not allowed to.276 173 SP said that whenever she would visit her father’s house, she would also visit JP’s home.277 He tended to be gaming in his room whenever she visited.278 SP said that during the timeframe of the alleged offending, JP shared a room with his brother, and the door was often closed. She recalled having to knock before entering.279 SP said that AP would often be in her own room, or out with friends.280 174 When SP was at her cousins’ home, she would often be in the living and dining room, and also in JP’s room. She said that apart from family gatherings, she would sometimes go over there to have lunch or dinner, or just to hang out with JP, MP or AP.281 SP recalled seeing BP next door at her cousins’ home on many occasions. She would be in the living room, or in JP’s room or in AP’s room.282 When she was in JP’s room, BP would be watching the brothers game most of the time.283 175 SP said that her relationship with JP’s parents was polite, but she did not interact with them frequently.284 JP’s parents were quite strict in that they did not let their children go out as often. They were rather conservative and religious.285 She was not aware of any ‘open door’ policy that the parents might have enforced.286 272 T304. 273 T311. 274 Ibid. 275 Ibid. 276 T312. 277 Ibid. 278 T313. 279 Ibid. 280 T314. 281 Ibid. 282 T315. 283 T316. 284 T315. 285 T317. 286 Ibid. -- 36 of 74 -- [2024] SADC 83 35 176 SP gave evidence that she was first made aware of the allegations relating to JP when she was at her dad’s place. She said she had been plucking BP’s eyebrows when JP came up in the conversation. BP said that she did not like JP and that he had sexually abused her.287 SP said that BP told her that she was seven years old when JP had sexually abused her on several occasions but that she could not exactly remember the dates.288 SP said that BP told her that the offending allegedly occurred in JP’s bedroom, and in the bathroom on one occasion.289 177 SP said that BP told her by way of complaint:290 … when she was in [JP’s] room he would close the door and grope her underneath her clothes, he would rub her genitals, her vagina, her bum and grope her whole body multiple times, multiple times doing that. Also she told me that when he was - he would sit in his study chair while he was playing games or using the desk and he would get her to go underneath the desk and give him hand jobs and she said that this happened multiple, multiple times. She also said that when - that he forced her into her - his bathroom and he would force her to give him oral sex, perform a head job on him and when she said no, and she didn't want to, he threatened her and said that he would tell horrible things about her to his parents and make her look bad and so she was - she told me she was really scared of what his parents would think because they raised her partly as well, so she was forced to do it and gave him oral sex. She also told me another time she was in his room sitting on his bed and he asked her to get into his bed and take off her underwear and when she refused, he put his hand in her underwear, underneath her clothes and started rubbing her vagina. Also - so that happened all throughout the one year, throughout the couple of months when she was seven, all those offences. And then two years later he reoffended, it was Vietnamese/Chinese New Year, she told me that his mum had gotten her a new dress and she was in his room and he asked to look at her underwear, he lifted up her dress and had a peek at her underwear. 178 SP said that BP did not say whether JP had ejaculated on any of these occasions.291 BP also said that the incident where she performed fellatio on JP occurred in the bathroom, and that he had forced her into the bathroom.292 179 SP said that BP appeared distraught and distressed when she was telling her about the offending.293 SP said that after speaking to BP, she spoke to BP’s parents, but they were in denial.294 SP’s father said ‘we can’t tell anyone about this’ or words to that effect. SP said that she conveyed everything that BP had told her.295 180 JP’s parents then came over, and a discussion occurred in BP’s bedroom. SP said that she told them exactly what BP had told her, namely: 287 T317. 288 Ibid. 289 T318. 290 T318-319. 291 T319. 292 Ibid 293 Ibid. 294 T320. 295 Ibid. -- 37 of 74 -- [2024] SADC 83 36 [JP] had sexually abused [BP] at seven years old. I told them exactly what he had done, forced her to give him oral sex, touched her multiple times underneath her clothes, her vagina, rubbing it, groping her whole body. I told them how he had forced her to give him hand jobs underneath his study desk. I told them about the incident where his mum gave her the dress and he pulled up her dress and looked at her underwear. The incident where he asked her to get into his bed and take off her underwear, where she didn't and he fondled her genitals after that. 181 SP said that JP’s mother said:296 At least she wasn't raped or penetrated so this isn't as bad as you think it is'. She also didn't agree that BP should be allowed to seek mental health help and she said to not report it to the police because of how it could affect her son and she said that she would look after BP for the rest of her life, her and JP's dad would look after BP for the rest of her life considering the psychological impact that it would have on her growing up. 182 SP said that JP’s parents then went back to their place to speak to him.297 I pause to note that SP’s description of the alleged offending goes far beyond BP’s evidence in her prescribed interview and in court. I find that she embellished and exaggerated her evidence. This impacts the reliability of her evidence. 183 In cross examination, SP denied ever stating that she was a social worker throughout the duration of the family meeting.298 SP also denied telling JP that he was ‘dead meat’.299 184 SP accepted the prior inconsistent statement regarding her conversation with BP regarding her hatred of JP. In her statement of 4 December 2024, she said that she had been plucking BP’s eyebrows, and she was not sure how JP came up, but she thought BP said words to the effect of ‘I hate that guy’.300 This led to BP telling her of being sexually touched by JP. 185 SP said that she heard about the Intervention Order and the allegations made against her father, but did not know the full story.301 SP agreed that this resulted in a period of time where she did not have contact with her father or her cousins.302 186 SP said that during the period of alleged offending, 2013-2015, she was able to see her father as frequently as she wanted, and she was visiting his home.303 187 SP was asked a series of questions pertaining to evidence of opportunity.304 It was put to SP that a lot of evidence on this topic was included in the most recent 296 T322. 297 T323. 298 T328. 299 Ibid. 300 T331-332. 301 T334. 302 Ibid. 303 T335-T336. 304 T337. -- 38 of 74 -- [2024] SADC 83 37 statement she gave to the police. SP said that the prosecutor/police officer did not specifically ask her a lot of questions on this topic.305 188 SP said that AP would often go out with university friends and go partying. She would go out a lot without her parents knowing.306 She did so to avoid their strict curfew. Under cross examination, SP reluctantly clarified this and agreed AP was a studious person, but still maintained she went out.307 189 SP denied that she ever spoke openly in front of BP about sexual matters.308 SP denied ever saying that she left her vibrator at her boyfriend’s house in front of BP and others during a family gathering.309 190 SP agreed that there was a divide between her father’s two families. SP recalled that there was an argument where her stepmother had said ‘what do I need to pay these children to never see them again’. SP said that she was in high school when this occurred but could not pinpoint a specific time.310 191 SP would not agree or deny that the first time she told anyone about AP and MP not being home when BP visited; JPs bedroom door being closed; and that she regularly attending JP’s home with BP, was on the Monday before trial when she spoke to the Investigating Officer.311 She disagreed with the proposition that BP and her brother JaP were inseparable and said that BP would go to JP’s house on her own without JaP.312 192 SP was very combative in cross examination and was clearly giving evidence that she believed would assist in demonstrating there were opportunities for JP to sexually assault BP in his home undetected. She would often not candidly answer the questions being put. I found her to be an unhelpful witness and that this impacted the reliability of her evidence. BP’s mother – PV (through an interpreter) 193 PV is the mother of BP and JaP and is married to PP.313 She confirmed that her family lived next door to her husband’s brother and his family.314 PV confirmed there was a gate that was frequently used between the two properties.315 She said that she often saw BP and JaP use the gate.316 305 T337-T338. 306 T338 307 T338. 308 T339. 309 Ibid. 310 T340. 311 T341. 312 T342. 313 T349. 314 Ibid. 315 Ibid. 316 Ibid. -- 39 of 74 -- [2024] SADC 83 38 194 PV said that after her son JaP was born, she started working part time as a kitchen hand in 2012/2013.317 TO, her husband’s sister-in-law, would look after BP when she was at work.318 She said she worked approximately 10 hours per week, 2-3 hours per day.319 PV said that also, after school, BP and her brother would ask for permission to go next door to visit. 195 PV said that she did not really take notice of BP’s whereabouts during family gatherings next door.320 She had no recollection of BP being in JP’s bedroom.321 PV could not comment on whether JP’s bedroom door was more often closed or not.322 196 In relation to the strictness of JP’s parents, PV agreed that they were strict. However, she said this was quite normal in Vietnamese culture, as parents want their children to be good people.323 197 PV first heard about BP’s allegations on 26 June 2021, via telephone when SP told her she needed to come home because she had something to tell her.324 She said that the conversation took place in BP’s bedroom, and BP was distressed and crying when telling her what had happened.325 198 In cross examination, PV did not agree with the proposition that she had issues in her relationship with SP and DP.326 She denied ever making allegations that her step-son TP had raped her, and clarified that she was once scared and thought something bad might happen between them, but nothing ever did.327 She said that she disclosed her concerns to everybody, but she had never alleged that TP had raped her, only that he gave her bad vibes.328 199 On the topic of the puppy, PV said that in her statement to police, she meant that the JP’s father had brought the puppy to her home for the purpose of making BP happy.329 200 PV’s evidence was not persuasive. She often shouted her evidence, particularly when mentioning JP. She was clearly partisan and was reluctant to engage in any questioning where she thought it might damage ‘her daughter’s’ version of events. I was left with the impression that she had little involvement with JP’s family, and did not know JP and his siblings very well. 317 Ibid. 318 T351. 319 T352. 320 T353-354. 321 T355. 322 T356. 323 T357. 324 Ibid. 325 Ibid. 326 T482. 327 T483. 328 Ibid. 329 T485. -- 40 of 74 -- [2024] SADC 83 39 BP’s brother - TP 201 TP was born on 23 August 1992, and is the son of PP and KL.330 202 During the alleged period of the offending, TP was living with his mother. He said that he would only occasionally visit his father’s home.331 TP said that he would visit his uncle’s home next door after high-school, and sometimes to go visit his dad and his family.332 He said this occurred infrequently, less than five times a year.333 TP recalled that when he was at JP’s house, his bedroom door would sometimes be closed and sometimes be open.334 203 In cross-examination, TP confirmed that there was a period of time after his parents’ divorce that he did not have any contact with JP.335 However, he did not observe a toxic relationship between his sisters, SP and DP and his uncle’s side of the family.336 He could not recall an instance where his sisters called his father’s new wife the wicked stepmother or witch.337 204 TP’s evidence was given in a neutral manner, and is of little weight to the issues to be determined. BP’s sister - DP 205 DP was born on 24 March 1997 and is the daughter of KL and PP.338 Her parents were divorced when she was approximately 6-7 years of age.339 206 DP described a period of time after her parents’ divorce where she did not see her father very often, as her mother had custody and did not permit her and her siblings to see him. She started seeing her father more after she turned 18. DP said she would see him every fortnight and sleep over at his house.340 BP would also be there on those occasions.341 207 DP said that when she visited her father, she would also sometimes visit JP’s house.342 She said the purpose for her visiting was either to visit her cousins, or her uncle and aunty; or for a family gathering.343 330 T390. 331 Ibid. 332 T391. 333 Ibid. 334 T395. 335 T400. 336 T401. 337 Ibid. 338 T403. 339 Ibid. 340 Ibid. 341 Ibid. 342 T404. 343 Ibid. -- 41 of 74 -- [2024] SADC 83 40 208 DP said that she would visit JP and MP’s bedroom and they would often be talking or playing computer games together.344 DP said that AP’s bedroom door was sometimes open and sometimes closed.345 209 DP said that when BP was aged 5-8 years, DP would at times be in the boys’ bedroom with only JP.346 AP, JP’s parents and MP were sometimes home, and sometimes not. DP agreed that JP’s parents were rather strict, so whenever JP, AP or MP wanted to go out to socialise, they would have to sneak out.347 210 DP said that she recalled there were dogs at JP’s home during the period of the alleged offending.348 She said she recalled seeing small white dogs, and she thought that perhaps JP’s parents were breeding dogs at some stage.349 211 DP then gave evidence about when she was first made aware of the allegations against JP.350 DP said that she received a call from SP who seemed distressed.351 DP said that SP told her that BP had been sexually assaulted by JP.352 This conversation occurred whilst DP was at her boyfriend’s place having dinner.353 212 DP said that she then went to her father’s house. Her father, his wife, SP and BP were there.354 DP said:355 I was made aware that JP had actually touched like my sister, when they were together privately. My sister, as in BP. I was made aware that he actually made her give him head under his study table and then he also did it on multiple occasions, it wasn't once. He also did other things, like getting her under the sheets with him and then he would touch and he would feel her and he would like finger her. I was also made aware that he had locked her in his bathroom. He has a bathroom, like an ensuite in that room and he had like locked that bathroom door and made BP give him head a few times. 213 I pause to note that like SP, this evidence goes well beyond BP’s evidence about the offending. It is exaggerated. It was also hearsay and therefore of no weight in determining whether the offending occurred. 214 DP said that JP’s parents were invited over to her father’s place and another conversation took place in BP’s room.356 DP said that SP translated the allegations 344 T404. 345 T405. 346 Ibid. 347 T409. 348 Ibid. 349 Ibid 350 T410. 351 Ibid. 352 Ibid. 353 T412. 354 Ibid. 355 T413. 356 T415. -- 42 of 74 -- [2024] SADC 83 41 into Vietnamese for JP’s parents.357 DP said that JP’s parents were trying to defend their son and minimise his alleged offending.358 215 DP said that she was shocked and tired after this conversation, and that as she was leaving her step-mother had told them not to go across the front yard yet because she had confronted JP and he had admitted everything he did.359 DP said that her step-mother told her that JP had dropped to his knees and was saying he was sorry.360 This evidence was clearly hearsay as DP did not hear or witness any admission from JP. The evidence cannot be used to prove any confession by JP. 216 In cross-examination, DP agreed that SP was angry throughout the family meeting.361 217 She gave evidence that she was young when her parents separated. She said she did not have any details about an alleged rape against her mother by her father.362 DP said she was not aware of any Intervention Order that was in place between her parents, that prevented contact between DP and her father.363 DP said that because she and her siblings were under age, her mother took custody and she had little contact with her father for some time afterwards.364 DP said the contact resumed around 2015 when she had turned 18 and her mother could no longer tell her not to have any contact with him.365 218 DP agreed that she was close with AP, JP’s sister. She also agreed that MP and JP shared a room and interests and that their parents were strict.366 DP said she was not aware of a conversation that occurred where SP spoke about vibrators in front of BP.367 DP said that SP was very open about sexual matters, and she would sometimes prompt those kinds of conversations with BP.368 219 DP denied ever calling her stepmother a ‘wicked witch’ or ‘wicked stepmother’.369 DP said that although she did not get along with her stepmother when she was younger, their relationship is better now.370 DP said that it was important to have respect for elders on her dad’s side of the family.371 357 Ibid. 358 T416. 359 T421. 360 Ibid. 361 T429. 362 T431. 363 Ibid. 364 T432. 365 Ibid. 366 T433. 367 T434. 368 Ibid. 369 T435. 370 Ibid. 371 T436. -- 43 of 74 -- [2024] SADC 83 42 220 DP did not agree with the proposition that there was any talk about how BP might respond to the allegations, or that there were any concerns she might make an attempt on her life.372 221 DP said that the detailed allegations made by BP were put to JP’s parents.373 She agreed that SP was angry throughout the family meeting.374 Detective Brevet Sergeant Sarah Brown 222 Detective Brevet Sergeant Sarah Brown (Detective Brown) has been a police officer for approximately 15 years, and a detective since 2013.375 She was the investigating officer in this matter.376 223 Detective Brown gave evidence that on several occasions she asked JP’s father, mother, and siblings whether they would provide an affidavit.377 They were not willing to do so.378 Detective Brown was also unable to obtain an affidavit from LP,379 the person to whom BP made her first complaint regarding the alleged offending. 224 The iPad video of BP and JaP in JP’s bedroom at a family gathering, was tendered through Detective Brown.380 She explained that this was provided to her by BP’s family at a proofing on 28 January 2022.381 Due to some technological difficulties, the video was unable to be downloaded, so Detective Brown used a hand-held video camera to record the video. 382 225 In cross examination, Detective Brown said that she was told that the communications between BP and LP had been deleted from BP’s phone. She was then advised that LP did not want to participate any further in the investigation.383 It was confirmed that Detective Brown was told that LP received the first complaint by BP, but she could not give detail of what the initial complaint was.384 226 Detective Brown confirmed that there was a meeting between herself, PP and his wife PV on 28 January 2022.385 She said that during this proofing, they did not speak about the evidence, but about the process of the day and the trial generally.386 372 Ibid. 373 Ibid. 374 T429. 375 T455. 376 Ibid. 377 Ibid. 378 Ibid. 379 T457. 380 Ibid; Exhibit P8. 381 Ibid. 382 T458. 383 Ibid. 384 Ibid. 385 Ibid. 386 Ibid. -- 44 of 74 -- [2024] SADC 83 43 Detective Brown said that her notes did have details of exactly what was discussed on that day.387 227 Detective Brown gave evidence about the proofing process that she went through with the witnesses prior to trial.388 She discussed with them how the prosecution and defence might ask them questions. 389 Detective Brown agreed that she was present during a pre-trial court hearing on 28 November 2023, where the significance of evidence of opportunity was discussed.390 228 Detective Brown confirmed that she did not correct PP when he sent her an email outlining potential aspects of the evidence that were missing.391 She said that she did not want to continue to open the lines of communication up via email with PP. She was attempting to shut it down.392 229 In cross examination, she agreed that some of the email’s contents were concerning, namely PP referring to himself and other witnesses as ‘we’ coming together to come up with a version of events that supported their daughter.393 Detective Brown said that the day after this email was sent, she spoke to PP telling him that this matter could not be discussed any further.394 230 Detective Brown said that she did not specifically provide any witnesses with the ‘defence assumptions’, and that she was just generally proofing witnesses prior to a trial.395 In relation to the sentence in PP’s correspondence that ‘we have to prove (BP) was alone in the room with (JP)’, Detective Brown said that she thought the family had a different understanding of the court process. She had made efforts to ensure they understood this.396 2. The Defence Case The Accused - JP 231 JP set out the agreed family circumstances. He resided at Salisbury Plains with his parents and two siblings.397 232 JP confirmed that during the alleged period of offending, he and his brother MP occupied the same bedroom.398 He set out the layout of the room, confirming there were two computer tables, a TV, and a shared bunkbed.399 JP’s parents shared 387 T460. 388 Ibid. 389 T461. 390 T461-T462. 391 T462-T463. 392 T463. 393 Ibid. 394 Ibid. 395 T465. 396 Ibid. 397 Ibid. 398 T505. 399 Ibid. -- 45 of 74 -- [2024] SADC 83 44 an adjacent bedroom,400 and his sister had her own room. JP’s description of his bedroom aligns with the evidence of BP. 233 JP confirmed that during the period of the alleged offending, both he and his brother were studying, and attended University together.401JP described his and his brother’s studying habits as: ‘In the morning we'd leave together. We'd have breakfast and we'd leave together and then we'd go on our thing at University and then we'd both obviously communicate so we'd go home together. We'd take the same, sometimes the same train back to the Salisbury Exchange and then either my mum or dad would pick us up, together, to go home.’402 234 JP said that he would often study when he was at home in his bedroom, as would his brother.403 They would also frequently play online video games together.404 JP described additional recreational activities that he, and sometimes his brother would take part in, including bouldering (rock climbing), and dodgeball.405 JP said he would go bouldering at Holden Hill in the evenings approximately three times per week.406 235 JP said that in his social life, he enjoyed going out with his friends a lot more than his siblings. He thought that this was likely because he was not as academically gifted as they were. He also did not study as much as they did.407 JP said that his brother MP was very studious and did not have much of a social life.408 His sister AP was similarly more focussed on her studies than he was and had a limited social life. When JP was home, he would spend most time in his room. Usually, he would only leave his room for lunch or dinner, or to pray with his parents and siblings at night at 8:30pm in the family room.409 JP said this was at the direction of his mother.410 JP described his parents as being very strict.411 236 JP confirmed that a TV was installed in his room for his 18th birthday, which was during the period of the allegations.412 He said that he would often watch football being, AFL and soccer; and Japanese cartoons with his brother.413 During an ordinary week, the bedroom door would be mostly open, as his parents enforced an open-door policy in the home.414 This was because they wanted to keep a close eye on what JP and his siblings were doing.415 400 Ibid. 401 Ibid. 402 T506. 403 Ibid. 404 Ibid. 405 T507. 406 Ibid. 407 T508. 408 T509. 409 T509. 410 Ibid. 411 Ibid. 412 Ibid. 413 T510. 414 Ibid. 415 Ibid. -- 46 of 74 -- [2024] SADC 83 45 237 JP confirmed that he completed Year 12 and then, in 2015, completed a Bachelor of Commerce at the University of Adelaide.416 238 In relation to his relationship with his cousins and the family next door, JP said that there were times his family would go over for a birthday, and the family would visit collectively. He did not recall a time when an individual family member would be invited next door.417 JP said that his father has approximately ten siblings, so his family was very large.418 239 During the period of the allegations, JP’s father was not working due to a back injury, and his mother stayed home to look after him.419 JP said that on an average weekday, he and his siblings would be at University, and his parents would be home.420 JP said that during holidays, because he had failed subjects, he would often have to do summer and winter school at university to catch up.421 This meant that JP spent a lot of time at University during his holidays.422 240 JP said BP and her brother JaP were always together when they were young. He never observed his mother babysitting BP and JaP.423 JP said he would not spend time with BP and JaP as there was a considerable age gap between them, and they were destructive. 241 During the period of the allegations, JP said he did not have much contact with SP, DP and TP, and only reconnected with them in approximately 2016.424 242 JP said that he was not aware of SP coming over to his home very often during the period of alleged offending.425 He generally only saw SP, DP, and TP during family gatherings.426 JP confirmed that TP was not living at the next-door house at the time of alleged offending.427 JP did not have any involvement in the dispute concerning any Intervention Orders between his family members, but vaguely remembered an incident concerning DP and PP.428 243 JP said that the suggestion that BP was frequently coming to his house and into his bedroom during the period of alleged offending was incorrect.429 He denied the allegations in their entirety, and denied anything sexual in nature occurring between himself and BP.430 JP said he never gave BP a bell.431 JP said the only gifts 416 T510. 417 T513. 418 Ibid. 419 T514. 420 Ibid. 421 Ibid. 422 T515. 423 Ibid. 424 T516. 425 Ibid. 426 Ibid. 427 Ibid. 428 T517. 429 Ibid. 430 T518. 431 Ibid. -- 47 of 74 -- [2024] SADC 83 46 he gave her was when he had visited Japan and would let the youngest cousins pick first from the assortment of general presents.432 244 JP denied the allegation pertaining to BP whilst she was wearing a dress.433 JP said his family never gifted BP a dress to his recollection.434 JP said he never observed his sister AP braiding BP’s hair.435 JP said that the only times BP and her brother would attend his house would be during family gatherings.436 245 In cross examination, JP said that during the period of the allegations, there were no occasions where he would be alone with BP in his room.437 He said that when BP was at his house, there was always somebody else with them, for example his brother MP or other cousins.438 JP said BP would never come to his house on her own without her family.439 246 JP confirmed that he was not doing the same course as his brother during University, and their classes were held at different times.440 This did not mean they did not travel to university together by train. He maintained that MP would not really go to friend’s places to socialise and would mostly stay home and study.441 247 JP confirmed that his father suffered a back injury in the early 2000s, which meant he could not go back to work and he struggled with lifting heavy things.442 As a result, during the period of the allegations JP said the only income in his house was Centrelink payments, and he and his siblings had jobs during University holidays.443 248 JP and his brother worked for a company, ANCOL, doing stationery packing.444 JP said that they would drive to work together, taking turns, and they would work a full day. This was 8:00 am to 5:00 pm, Monday to Friday during the University school holidays over summer.445 249 JP did not agree with the following propositions during cross-examination:446 − That BP would regularly come to his house after school once she had started going to school; 432 Ibid. 433 T519. 434 Ibid. 435 Ibid. 436 Ibid. 437 T534. 438 T535. 439 T536. 440 T537. 441 Ibid. 442 Ibid. 443 Ibid. 444 T538. 445 T539. 446 T543. -- 48 of 74 -- [2024] SADC 83 47 − That BP visited during school holidays; − That he played with BP on their own; − That BP came over to his house without her parents. 250 JP confirmed that there was a ‘no closed-door’ policy at his house, and said that he would only close his door to sleep.447 His father was strict and wanted to ensure his children were studying. 251 On the topic of living arrangements, JP said that after his brother MP came back from a trip to Europe 2018, he moved into a different bedroom and JP remained in the one they had previously shared.448 This was after the period of the alleged offending. 252 JP said that when his parents first told him about the allegations, they told him that BP said he had touched her and lifted her dress.449 After he found out about that allegation, JP went to his uncle’s house to help him with BP and do as he asked.450 In responding to questions about the family meeting, JP became upset. I found that emotion to be genuine. 253 JP confirmed that he has spoken to his father about his evidence, but not in any detail. He said he spoke about the case generally, as the evidence and everything else was up to his lawyers.451 However, since the time of the family meeting, JP said he has not spoken to his father about who was home when BP would visit.452 JP said that he did discuss with his brother whether he was home with him in 2013-2015.453 He said the conversation took place somewhere, not at his family home, and he simply had asked his brother what he had been doing in those years, and they looked at MP’s outlook calendar.454 254 JP said that he did not speak to AP about whether she was home in the period of 2013-2015.455 He said he only had contact with her recently to tell her to book annual leave to be able to attend the court proceedings.456 255 JP has not been able to see his family very often since being placed on bail, as one of the conditions did not allow him to reside at, or visit his family home.457 JP said that after he moved to his auntie’s place, his family would initially visit approximately once per week, but after he settled, they would visit once every two 447 Ibid. 448 T544. 449 T546. 450 T547. 451 T552. 452 T553. 453 T554. 454 T555. 455 T556. 456 T557. 457 T557. -- 49 of 74 -- [2024] SADC 83 48 weeks or so.458 JP said that his mum still visits him once a week, to bring him things from home.459 256 JP confirmed he had seen his siblings on several social occasions recently.460 He discussed general things, like his family’s availability and the general timetable for the court proceedings.461 257 During the family meeting in 2021, JP said he did not know the full details of the allegations against him when he apologised.462 JP said he was just following his uncle’s instructions.463 JP maintained that the extent of the allegations which he was aware of before the meeting was limited to lifting up BP’s dress and touching her.464 258 JP told the court that the first time he became aware of the full extent of the offending alleged by BP was when he was arrested by Detective Brown. He maintained that at the family meeting he was only aware of the allegation of lifting BJ’s dress and touching her. However, he apologised for what he regarded as a minor event. It was also part of Vietnamese culture to respect elders and do what they say. 259 JP gave his evidence in a self-deprecating manner. He frankly stated that he was not as smart as his two siblings. He also said that he went out more and did not apply himself as they did. He appeared puzzled by the allegations and could not explain circumstances in which the alleged offending could have occurred. JP’s brother - MP 260 MP was born on 27 February 1995.465 He completed a Bachelor of Petroleum Engineering at Adelaide University, and is currently employed as Director of Products for a company which assists hospitals around the world with verifying skills for nurses.466 261 During the period of the alleged offending, MP was residing with his family next door to his uncle’s family.467 MP said that during this period, he shared a room with his brother JP. His sister had a bedroom immediately adjacent to theirs.468 MP described the layout of the room. This was consistent with the evidence of JP and BP.469 It is only PP who described JP and MP as having separate bedrooms. 458 Ibid. 459 T558. 460 T559. 461 T560. 462 T561. 463 Ibid. 464 Ibid. 465 T563. 466 Ibid. 467 Ibid. 468 T563. 469 T564. -- 50 of 74 -- [2024] SADC 83 49 262 During 2013-2015, MP said he was studying at Adelaide University. MP described his study ethic as ‘very dedicated’.470 MP said that his parents would take him and his brother JP to University or the train station every day and pick them up.471 MP said that his parents encouraged him and his siblings to study and apply themselves.472 At University, MP was studying very hard, and ended up with first class honours.473 His impressive academic transcript was tendered.474 263 MP gave evidence of playing online video games with JP in their room, as well as with their cousins.475 MP said that during the period of the alleged offending, he and his brother JP also took up indoor rock-climbing with one of their older cousins.476 MP said that he and JP would always attend together.477 264 In terms of his social life, MP said he would go to pub crawls 1-2 times per year with JP, or to the birthdays of close friends, but they would be required to be home by 10:00/11:00PM.478 MP said that generally he was either at University or home.479 265 During the period of alleged offending, both MP’s mother and father were not working and would be home most of the time.480 MP’s father had issues with his back, and his mother was his carer.481 He described AP’s lifestyle, as her mostly being at home, studying and reading.482 266 MP confirmed that his parents implemented an ‘open-door policy’, as his father wanted to check up on him and his siblings and ensure that they were studying.483 MP described his parents as being very strict. His father in particular, would be cross when the boys were playing video games. 267 MP confirmed that there was a time when he had moved out of the bedroom that he shared with JP when he went to Europe in 2017.484 When he returned in 2018, he took his parents old bedroom and they moved into the rumpus room.485 268 In relation to BP and her family, MP said that they would only really see them during family gatherings.486 MP said neither he or his parents ever babysat BP or her brother.487 MP said that at family gatherings, the girls would hang out 470 Ibid. 471 Ibid. 472 T565. 473 T567. 474 Ibid; Exhibit D11. 475 Ibid. 476 T568. 477 Ibid. 478 T569. 479 Ibid. 480 T570. 481 Ibid. 482 T571. 483 T572. 484 Ibid. 485 Ibid. 486 T573. 487 Ibid. -- 51 of 74 -- [2024] SADC 83 50 with the girls and the boys with the boys.488 MP did not observe a particularly close relationship between BP, her brother JaP, and JP.489 There was a considerable age difference between them. 269 MP said that he had a particular pair of pyjamas he would wear: a shirt and green pyjama shorts. MP said that his brother JP did not typically wear pyjamas.490 MP said there was no lock on the bedroom door at any stage.491 MP said that his uncle PP installed a TV in JP’s room for his 18th birthday.492 He also confirmed that he and his family had daily prayers at 8:30PM each night.493 270 MP said he recalled an occasion where SP spoke about leaving a vibrator at her boyfriend’s house.494 MP thought this conversation occurred in 2020.495 MP said that his brother JP would sometimes speak out against SP, which she did not take very well.496 MP said that it appeared that SP did not like JP very much.497 271 In cross examination, MP confirmed that during University holidays, he would mostly be gaming, but from 2014 onwards he started working for a stationery company with his brother JP.498 MP said he and JP would work there from 8-4pm every weekday from November to approximately February.499 MP also confirmed that JP was required to study during University holidays, especially during some summer holidays.500 272 MP conceded there were days that he went to University without JP.501 He said that although he and JP did not have the same classes, they tried to match their timetables as much as possible.502 273 MP confirmed that during the period of alleged offending his father was not working as he was injured. His mother would look after him. His mother was BP’s god mother, but she would only really spend time with her godchildren on their birthdays.503 MP confirmed that sometimes BP and her brother JaP would go into his and JP’s room with the door closed during family gatherings.504 He gave evidence about what would occur at a family gathering during 2015.505 MP said that during such a gathering, he would mostly be in his room.506 MP could not recall 488 T574. 489 Ibid. 490 Ibid. 491 Ibid. 492 T575. 493 Ibid. 494 T578. 495 Ibid. 496 Ibid. 497 T579. 498 T582. 499 Ibid. 500 T583. 501 T585. 502 T586. 503 T587. 504 T588. 505 T590. 506 T591. -- 52 of 74 -- [2024] SADC 83 51 BP’s movements throughout a gathering.507 He said he did recall BP and her brother JaP running into his room and causing a ruckus, but that generally the two of them were hanging out with the younger cousins.508 274 MP confirmed in cross examination that JP’s movements mimicked his own, and the two of them would hang out together during family gatherings.509 MP confirmed that he would spend a lot of time in his room gaming or watching TV during the period of alleged offending.510 275 MP first found out about the allegations involving JP after the family meeting had occurred and his parents told him.511 MP said that JP said that he thought the family next door had set him up.512 MP said that he did not know much about the allegations until the police came and arrested JP, and that as far as he was concerned, he thought it was merely about JP touching BP and her dress being flipped.513 276 MP told the court that the extent of any conversations about the case was limited to booking annual leave and general procedural questions.514 MP disagreed with the proposition that he was embellishing his evidence to minimise how much time BP spent at his house.515 277 MP conceded that in 2013-2015 the gate between the two properties was used regularly.516 However, he disagreed with the proposition that BP would regularly attend his house after she started going to school.517 MP said that the only time he saw BP was during family gatherings.518 278 MP disagreed with the proposition that after he found out about the allegations, he went to his uncle’s house to ask him to delete the CCTV footage of the family meeting.519 279 MP presented as a very intelligent young man. He gave thoughtful evidence as he attempted to answer all questions. I accept that he did not have a great deal of interaction with BP or JaP. As a result, it was clear that he was puzzled by the allegations involving BP and JP. The allegations did not fit with his understanding of what occurred between the two families between 2013 and 2015. 507 Ibid. 508 Ibid. 509 T592. 510 T596. 511 T598. 512 T599. 513 T600. 514 Ibid. 515 Ibid. 516 T601. 517 T602. 518 Ibid. 519 T604. -- 53 of 74 -- [2024] SADC 83 52 JP’s sister - AP 280 AP is 27 years old and is a radiographer working at Benson Radiology.520 During the period of alleged offending, AP confirmed that JP and MP shared a room.521 She also confirmed that MP moved into his own room when he returned from Europe.522 AP described her parents as being strict. Her father was a traditional Vietnamese man and was of the view that girls should stay home.523 AP said that this meant she did not go out very often until she was at University.524 AP described her life before that as consisting of studying, watching Korean dramas, and reading in her room.525 AP said that her father required her and her siblings to keep their doors open so that he could check up on them.526 281 AP confirmed that her father was not working during the period of the alleged offending, due to a back injury.527 Her mother was also home and would care for her father.528 AP agreed that her brothers would travel to university together during this period and would often play video games together in their room.529 They were noisy at times and this annoyed her. 282 During 2013-2015, AP would only see BP and her brother JaP and their family during family gatherings.530 AP denied that she ever braided BP’s hair.531 She said that because of the age gap, she did not spend much time with BP.532 AP said that the younger cousins never visited her home randomly.533 283 AP said that she never observed her mother babysitting BP and JaP. Nobody wanted much to do with them as they were very naughty and loud.534 On the topic of family gatherings, AP said that all the cousins (her father’s, brothers and sisters) would take turns in hosting.535 284 AP said that she never saw anything unusual occur between BP and JP.536 285 AP did not have much contact with SP and DP during high-school and they only resumed contact slowly during university.537 She was never very close with SP and DP.538 520 Ibid. 521 T605. 522 Ibid. 523 T606. 524 Ibid. 525 Ibid. 526 T607. 527 Ibid. 528 Ibid. 529 Ibid. 530 T608. 531 Ibid. 532 Ibid. 533 Ibid. 534 T609. 535 Ibid. 536 Ibid. 537 T610. 538 Ibid. -- 54 of 74 -- [2024] SADC 83 53 286 AP disagreed with the proposition that she or her brothers would disobey their parents and sneak out during this period.539 287 AP said that she had purchased two dogs in the last few years. These were a Maltese Shih Tzu called Coco, born in 2019, and a red toy poodle called Teddy, born in 2020.540 AP is the registered owner of Teddy as of 29 October 2020.541 AP confirmed that Teddy had been in the household for a while before JP’s arrest. AP said that she paid $2000 for Teddy.542 AP said that her father is not a dog breeder.543 The dogs in the household were owned by her. 288 AP then gave evidence about an instance where SP spoke about leaving a vibrator at her boyfriend’s house during a family gathering.544 AP said that JP, SP, DP, and BP were present.545 AP said that JP spoke to SP, asking her why she was talking about vibrators in front of BP.546 289 In cross examination, AP said she did not play any sports in high school, nor did she have any extracurricular commitments.547 She said she did not visit friends’ houses during high school.548 AP said that during the summer holidays, she would watch Korean dramas and spent time brushing up on her studies.549 After she finished high-school, AP worked with her brothers at ANCOL.550 AP said she worked there 5 days a week, from around January to February.551 290 AP confirmed that she did not have much privacy at home,552 and she disagreed with the proposition that her brother sometimes closed their bedroom door for privacy.553 291 AP confirmed that her father suffered from a back injury and was not working during the period of alleged offending.554 She agreed that her mother was BP’s godmother, but she said that the two would not spend a lot of time together.555 AP said that she never saw BP go into JP’s room, and that the only time she saw or heard BP in that room would be during family gatherings.556 AP was shown the iPad video in P8.557. She could not say how old BP and her brother were in the 539 Ibid. 540 T611. 541 Ibid. 542 T613. 543 T614. 544 Ibid. 545 Ibid. 546 Ibid. 547 T615. 548 Ibid. 549 Ibid. 550 Ibid. 551 Ibid. 552 T616. 553 Ibid. 554 T617. 555 Ibid. 556 Ibid. 557 Ibid. -- 55 of 74 -- [2024] SADC 83 54 video.558 When asked, AP could not recall a specific family gathering that occurred during the period of alleged offending.559 292 AP found out about the allegations involving JP when the police attended her home.560 AP has not spoken to JP about the allegations. AP said that any conversations about the matter were limited to determining court days and her putting in for her annual leave.561 293 When asked, AP could not say how often the gate between the two properties was used.562 She disagreed with the propositions that BP would regularly visit her house after school hours,563 or would regularly visit during school holidays.564 AP also disagreed with the proposition that BP would visit their home without her parents.565 294 AP confirmed that her father implemented an open-door policy in their home so that he could keep an eye on her and her brothers.566 He wanted them to study. 295 AP gave her evidence in a clear manner and with little hesitation. She responded very well to repetitive questioning in cross examination. In my view, she was an honest and reliable witness. JP’s father - ThP 296 ThP was born in Saigon, Vietnam and is currently 58 years of age.567 He came to Australia in 1982, and he married his wife in 1992. ThP said that he and his family live at Salisbury Plains, in a home they purchased in 2002.568 ThP said that JP has not been residing there since his arrest due to the conditions of his bail agreement.569 297 During the period of alleged offending, ThP was not working due to suffering a workplace spinal injury. ThP was on a disability pension. His wife, TO, stayed home to look after him.570 ThP said that his two sons were at university, and AP was still in high-school before she started university at this time.571 298 In relation to the layout of their home, at the time of the alleged offending, ThP said he shared a bedroom with his wife. The two boys, MP and JP, shared a bedroom, and AP had her own bedroom.572 ThP described himself as a very strict 558 T618. 559 T618. 560 Ibid. 561 Ibid. 562 T619. 563 Ibid. 564 T620. 565 Ibid. 566 Ibid. 567 T622. 568 T623. 569 T623. 570 T624. 571 Ibid. 572 T625. -- 56 of 74 -- [2024] SADC 83 55 parent.573 He said he required his children to keep their doors open so that he could make sure they were studying and not playing video games, or staying up too late.574 299 ThP described JP as a good role model to his younger siblings.575 JP stayed home to study and his younger siblings would follow suit.576 ThP said that he would only allow JP and MP to play video games on the weekends.577 JP and MP would attend University together, and either ThP or his wife would drop them off at the train station and pick them up in the evenings.578 This evidence is consistent with that of JP, MP and AP. 300 ThP confirmed that he had twelve siblings,579 and that his brother PP lived next door. He said PP would not visit very often except when he needed something, or for a family gathering.580 The family gatherings would be quite large, and the siblings would take turns in hosting.581 BP and her brother JaP would not come over to their house unless there was a family gathering.582 ThP said that he would also discipline them during family gatherings as they tended to misbehave.583 ThP said there was some disagreements between himself and PP in relation to how children should be raised, and ThP criticised PP’s parenting skills.584 301 ThP gave evidence on the topic of demands being made for compensation.585 ThP said that PP had said to him that SP and DP had ‘recorded everything and this means that JP will get 10 years in prison or one million dollars in compensation’.586 ThP said this made him very angry, and he asked PP why he was treating his family like this.587 302 ThP denied that he offered BP a puppy.588 ThP said that the day after the family meeting, AP’s puppy was barking because there was no one in the house. ThP said that his wife told him to go get the puppy whilst they were at PP’s house, so that it would stop barking and calm down. ThP let JaP play with the puppy, and he then took it home.589 ThP never offered the puppy to JaP or BP, because the 573 Ibid. 574 Ibid. 575 T626. 576 Ibid. 577 Ibid. 578 T627. 579 T627. 580 Ibid. 581 T628. 582 Ibid. 583 Ibid. 584 T629. 585 T640. 586 Ibid. 587 T641. 588 Ibid. 589 T642. -- 57 of 74 -- [2024] SADC 83 56 puppy belonged to his daughter, AP.590 ThP said that AP had bought the puppy herself, and it was no-one else’s to give away.591 303 In cross examination, ThP said that his brother PP moved in next door in 2008,592 and that PP had installed the gate between the two properties.593 ThP confirmed that during the period of the alleged offending, his children were not working except in the holidays, but he could not specifically remember.594 304 ThP disagreed with the proposition that BP was not a misbehaved child.595 He said that PP and his family would only really visit during family gatherings. Other family meals with just the two families were very rare.596 ThP said he would not just invite PP’s family to his house, because he would invite all the families together.597 305 ThP regrets not giving his son JP more privacy, and he feels he put too much pressure on him.598 ThP said he would not describe JP as noisy, and even though he would listen to music and play video games, it was never loud because he would wear headphones.599 306 ThP said that during family gatherings, everyone was free to go wherever they wanted to, including BP.600 However BP would only visit his house during family parties and her parents did not want her to come over otherwise.601 ThP said that approximately 30 people would be at these parties, and the smallest one would host about 10-20.602 307 During cross examination, ThP was shown the iPad video in P8.603 He could not say when the video was taken.604 308 In relation to the allegations, ThP said that BP never voiced the allegations. SP was the one who told him of what the allegations made by BP were.605 ThP said that when SP was talking about the allegations, she only mentioned JP lifting up BP’s dress and touching her, nothing was mentioned about being touched on the vagina.606 590 Ibid. 591 Ibid. 592 Ibid. 593 T643. 594 Ibid. 595 Ibid. 596 T644. 597 Ibid. 598 Ibid. 599 T645. 600 Ibid. 601 T646. 602 Ibid. 603 Ibid. 604 T649. 605 T650. 606 T652. -- 58 of 74 -- [2024] SADC 83 57 309 ThP confirmed that he never saw BP at his home after school because her mother would pick her up.607 ThP said that BP would only ever play or hang around JP during family parties.608 310 ThP’s evidence is important in that, it is consistent with others, regarding BP not voicing the allegations of sexual misconduct involving JP. It was only SP who outlined the allegations and she only mentioned lifting BP’s dress. 311 ThP’s evidence regarding the alleged gift of a puppy was consistent with AP’s evidence that the dog taken over to BP’s home, the day after the meeting, was her dog. Submissions in closing 1. Prosecution closing address 312 I have reviewed the addresses of both counsel. I take into account all of what was put in those final addresses. I summarise below the contentions put before the court. 313 The Prosecution’s case relied heavily upon the evidence of BP in her prescribed interview, that she was repeatedly sexually abused by JP. It was submitted that a key issue is therefore whether BP was an honest and reliable witness. That is, how she came across to the Court when giving evidence. 314 It was submitted that for the Prosecution to prove its case, I must be satisfied beyond reasonable doubt that BP was an honest and reliable witness. That she accurately relayed the detail of she and JP touching each other’s genitals and other acts. The Prosecutor submitted that BP had told the truth, warts and all. In this regard, the Prosecutor invited me to consider how BP must have felt going to the police to report the offending, and then talking to a stranger about these very distressing and personal matters. 315 The Prosecutor submitted that I should consider BP’s responses in cross examination to many topics and find that it was highly corroborative of the amount of time she spent at JP’s home. This was particularly so when considered in light of the defence case. 316 It was submitted that the two parts of the same family had more interaction than all of JP’s family would admit. I was asked to use common sense and life experience to come to this conclusion. As family living next door, there were good reasons to interact. Limiting the interaction between the families to only large family gatherings seemed implausible. SP, PP and BP’s evidence should be preferred to find that BP would regularly go to JP’s home, and this included outside of large family gatherings. This was why she had such detailed knowledge of JP’s 607 Ibid. 608 Ibid. -- 59 of 74 -- [2024] SADC 83 58 family. Although it was accepted that I would need to take account of the age difference between BP and JP. 317 In cross examination, BP agreed that JP and his siblings were studious, and that there were multiple people in his house during the offending. The Prosecution argued that these were strange admissions to make if BP was trying to make things up. 318 It was submitted that BP became emotional during her evidence when describing the offending. Despite this, it should not be found that she was exaggerating what occurred. In this regard, denying that JP ejaculated during the sexual abuse demonstrated that she was not distorting what had occurred. If she was making the offending up, it would be generous of BP to not include such a detail if she had wanted to embellish her story. Rather she made a concession that she did not recall JP ejaculating. 319 In this regard, the Prosecutor noted that BP had said in response to cross examination that she could not remember precise details of when the fellatio occurred. It was argued that if she had fabricated her account she would have made up those details to strengthen the plausibility of her story. Rather, it was submitted, BP’s description of how she felt about the offending was consistent with it being a real lived experience. This was particularly in relation to the guilt and embarrassment she experienced. 320 The first person BP told of the offending was her cousin LP. A police statement was unable to be obtained from LP and she did not give evidence. Despite this, it was submitted that I could find that the complaint was an initial complaint for the purposes of s34M of the Evidence Act. 321 The Prosecutor confirmed evidence of initial complaint cannot be used as proof of the truth of the complaint. He submitted that the evidence of first complaint could however be used for two purposes: • To explain how the allegations came to light two years before they were reported to police; and • To demonstrate BP’s consistency of conduct. The evidence of complaint confirms her feelings of guilt and embarrassment, as BP described in her evidence. 322 In relation to BP’s evidence as to what occurred on 26 June 2021, the Prosecutor argued that it was clear from both hers and JP’s account that they agreed on the nature of, and what occurred at the family meeting. That was that JP was there to discuss the allegations made by BP. 323 BP said that JP said that he did not know why he did things to her, and blamed it on his hormones. The Prosecutor suggested that JP blaming his behaviour on hormones was consistent with him knowing that BP’s allegations were of a sexual -- 60 of 74 -- [2024] SADC 83 59 nature. In addition, SP’s evidence that JP had used the words ‘hormonal’ and DP’s evidence of ‘urges’ fits with BP’s evidence. The Prosecutor submitted that the slight differences in the wording between these witnesses demonstrated independent accounts, based on separate memories of what had happened, at the family meeting regarding the alleged offending. 324 In relation to JP’s family offering BP a poodle, in cross examination, BP said that she understood that it was being offered to her. This was more or less the same as her parent’s view, who also thought that the offer was some sort of blackmail. It was submitted that the Prosecution evidence on this issue was consistent. 325 In summarising BP’s evidence, the Prosecutor submitted that her response to cross examination was open and honest. 326 The Prosecutor then considered the evidence of other prosecution witnesses. In relation to BP’s father, PP, it was noted that he had moved to live next door to his brother in 2007. He worked as a refrigeration mechanic, and was working full time between 2013-2015. His wife also worked Monday to Friday, or at least three days per week. The families were close. Every month there would be a family party and family members would move between the two properties by using the side gate. His brother’s children would come to his house less often. PP said that both of JP’s parents were not employed, which was consistent with ThP’s evidence. PP’s evidence was also that BP and her younger brother would always run straight to JP’s room when the family visited next door. 327 On the topic of the email exchange between PP and Detective Brown,609 the Prosecutor submitted that PP was just giving honest information to the Detective. He was aware that it was necessary to prove that BP went into JP’s room by herself. It was suggested that I might think that PP was simply passing on relevant information to Detective Brown. I note that this suggestion is an improper submission to make, in that it does not assist me in making determinations beyond reasonable doubt. 328 In relation to PP’s evidence that JP had a room to himself following a leak in 2013, the Prosecution argued that I could find PP was honestly mistaken about this timing, given the other evidence in the case. This is in circumstances where JP had his own room after 2017. However, PP’s evidence that the door to JP’s bedroom was always closed was corroborated by Exhibit P8, where the door is closed in the iPad video. Although I pause to note that there were four people in JP’s room on that occasion. 329 Whilst PP’s evidence was emotional, and at times he failed to answer questions, it was argued that it should be taken into account that PP came from a non-English speaking background. It was suggested that he may have been 609 Exhibit D9. -- 61 of 74 -- [2024] SADC 83 60 confused by some of the questions in English. This, combined with the unfamiliar court environment, may have affected his ability to follow all questions. 330 The Prosecutor submitted in relation to SP, she had a more liberated perspective compared to other witnesses. He agreed that she could have been the one encouraging BP to report JP’s offending to the police and her parents. It was submitted that SP gave detailed and candid evidence of BP’s disclosures to her of the offending. 331 In relation to the discussion of SP having a vibrator, and speaking about it in front of BP, the Prosecutor accepted that BP’s siblings supported BP’s version of events rather than SP’s. It was argued, however, that for SP it was likely just an off-hand comment that she had forgotten. 332 SP’s evidence was that she was heartbroken and felt betrayed when she found out about the allegations made by BP. The Prosecution argued that for SP it was a significant event, and she was not prepared to shy away from the full extent of BP’s allegations. 333 In cross examination, PP agreed that SP had said that JP was ‘dead meat’. However, SP said that she did not remember saying this during the family meeting. DP also said she did not recall SP saying that. This was suggested to be an inconsistency of little consequence. 334 The Prosecutor submitted that I should accept that PV encouraged her children to go to JP’s home next door; that she would often send her young son over to be babysat when she was working. She said she also saw BP use the gate between the properties to go over to JP’s house. PV said she went over there to borrow items for cooking. PV could not comment on JP’s room, or whether he kept the door opened or closed. However, her evidence was clear that BP would often play with MP and JP, although the Prosecutor conceded that PV never noticed BP go into their bedroom. It was argued that there was no attempt by PV to exaggerate how much time BP spent alone with JP in his bedroom with the door closed. She appeared to have no axe to grind with BP’s family. I pause to note that I disagree with that final submission. PV’s evidence was forceful in her accusations, as she often shouted her answers, and especially JP’s name. 335 In relation to PV’s evidence that she had bad thoughts about TP raping her, and telling JP’s parents that she wanted him to move out, the Prosecutor suggested that I might find that VP was being particularly candid and that this goes to her credit. 336 It was said that PV does not speak English very well, and was therefore not able to understand much of what was said during the family meeting. She did however hear JP saying ‘he was sorry’ and ‘he did a stupid thing’, which was consistent with the accounts of other witnesses. -- 62 of 74 -- [2024] SADC 83 61 337 In relation to DP, the Prosecutor submitted that she told the Court that when BP was 5 to 8 years old, she would go over to JP’s house for family gatherings and sometimes to say hello to the family. She said that whilst JP and MP would be playing video games, they would close the door to their bedroom. DP said in 2013 and 2014 she was very close to AP. She would get help from AP with her homework, and they went to the same high school. 338 Detective Brown gave evidence that PP was proofed prior to trial as is the case with all police witnesses. She had asked him about how much time was spent at JP’s home. He went away to think about it, and then sent the email in Exhibit P9. It was acknowledged that what she thought PP was thinking when the email was sent was speculation. PP’s evidence on this issue should be accepted. 339 In relation to the evidence of JP, the Prosecutor argued that his evidence was very polished and he stayed ‘close to the script’. There were two ways I should consider his evidence, being by reference to totality, or by his individual assertions. The prosecution asked me to consider whether aspects of JP’s account were implausible, including the description of his lifestyle during the period of the allegations; that he only closed his door to sleep; that he was never home without his siblings; and his utter lack of opportunity to offend. It was also improbable that JP would retain a positive memory of BP never coming to his house during the relevant three-year period except for ‘family gatherings’. The Prosecutor argued that his evidence was absurd and too unduly dogmatic for it to be accepted. The evidence of lack of opportunity lacked any credibility. 340 It was submitted that the iPad footage in Exhibit P8 showed that JP had a friendly relationship with BP as she played with others in his room. I should consider how this fitted with JP’s description of his relationship with BP. 341 The Prosecutor argued that I should take into account that JP refused to accept any suggestion of different circumstances over the entirety of the period of the alleged offending. It was contended that if JP’s family was not close to BP’s family, then it did not make sense that he would apologise for child sexual abuse that he did not commit. However, as I have already set out, I am not satisfied that he did. 342 The Prosecutor made submissions regarding the evidence called by the defence. MP had said that he went to university every day with JP for three years, except maybe when he was sick; and that JP rarely left the house. It was argued that MP wanted to close out any opportunity for JP to be alone with BP. It was argued that similar issues arose with AP’s evidence, particularly that she never closed her bedroom door and that her brothers would never close theirs. This was suggested to be simply implausible. JP and MP in their evidence suggested that BP and her younger brother were naughty and loud, and that no one wanted anything to do with them. The Prosecutor argued that this was inconsistent with the iPad video at Exhibit P8 where JP and MP were happily playing and engaging with their two younger cousins (including BP). -- 63 of 74 -- [2024] SADC 83 62 343 The Prosecutor also challenged the evidence of JP’s father. He suggested that the incredible level of supervision in the household, including checking whether his adult children were sleeping, and keeping their doors open at all times, was unrealistic and improbable. 344 In summary, the Prosecutor suggested that on the evidence I might think that BP’s description of the relationship between the two families fits much better with all the evidence in the proceedings and was more realistic. 345 Turning to the offending, it was argued that although the level of brazenness in the offending was extreme, that did not mean that the offending did not occur. This brazenness was characterised by the fact that the offending occurred in JP’s home whilst there were often many other people present. It was suggested that an answer might be that JP was emboldened to offend by BP’s silence after the first incident of offending. In any event, it was submitted that offences of the kind before the Court are often brazen and opportunistic by their very nature. It is not unusual for children to be sexually abused in a family home. 346 It was submitted that BP’s allegations were complex, and involved three years of her life. The Prosecutor submitted that BP was an accurate and reliable witness on the key aspects of the case, although she may not have been perfect in every detail. 347 The Prosecutor also pointed to where BP had said she felt guilt during the period of the abuse, arguing that this was an odd comment for a child to make if they were fabricating their evidence. He submitted that JP may have been emboldened by BP’s silence, to continue his offending. 2. Defence closing address 348 Defence counsel criticised the Prosecutor for consistently peppering his closing address with the assertion ‘that you might think’, when putting submissions before the court. He argued that this was a dangerous way of framing evidence that requires a high degree of proof, namely, beyond reasonable doubt. He suggested that making a submission based upon why would BP lie, is the Prosecution attempting to reverse the onus of proof. The Prosecution should know better than to ask the court to consider the evidence in this way. I agree that the onus is upon the Prosecution to prove their case beyond reasonable doubt. 349 Applying that onus, there are several key contentions that are entirely reliant upon the uncorroborated evidence of a single witness: These are the • Internal inconsistencies in the Prosecution evidence and the intrinsic improbability of the allegations; • Inconsistency with broader facts on the issue of opportunity; -- 64 of 74 -- [2024] SADC 83 63 • Inconsistencies with reliable evidence, particularly the defence case; and, • The inability of the Prosecution to exclude the defence evidence as a reasonable possibility. 350 The last contention is the most important. If the Prosecution cannot exclude the accounts of the defence witnesses as a reasonable possibility, then there cannot be a verdict of guilty. It was argued that this is something the Prosecution had not done, and which the Prosecutor did not address in his closing. Excluding the narratives of the defence witnesses as a reasonable possibility, is the relevant test, not whether the accused’s or the complainant’s evidence is to be preferred. 351 Defence counsel then reviewed the evidence of BP. Firstly, in relation to whether others were at home. She said that during the offending:610 … I reckon they were all at home. … I think there were many people at home. 352 In such circumstances, absence of any supportive evidence, it was submitted by defence counsel as a significant factor. It was argued that it would be expected that there would be an observation of something of concern in JP’s room by someone. One of the adults in the house. Those who were all home. Defence counsel submitted there was no surrounding evidence whatsoever; no observation of anything of concern. 353 Counsel then discussed the evidence in the iPad video at Exhibit P8. He argued that this evidence was damning to the Prosecution case, as it clearly shows a child (BP) that does not display any indicia of fear or apprehension towards JP. 354 It was also submitted that in this context, that there was no witness for the Prosecution or defence who expressed anything but shock at the allegations. There was therefore nothing at the time of the allegations that lent support to criminal behaviour occurring. 355 Defence counsel submitted that the evidence of opportunity was critical, namely, the opportunity for JP and BP to be alone in his bedroom. The nature of the allegations is of repetitive and consistent conduct, not just one occasion. It was argued that in a small suburban home, noise would travel throughout the home. JP’s father was at home at all times as a result of a work injury. His wife was his carer. Neither heard nor saw anything unusual and they never saw BP come to their house on her own. 356 AP, gave evidence in a softly spoken manner. She was in her last two years of high school, and then University at the time of the alleged offending. It was 610 T17, T19. -- 65 of 74 -- [2024] SADC 83 64 submitted that there was nothing about the way she presented her evidence which was evasive. She gave her evidence in a candid and transparent manner, and of her being a consistent presence at the home. 357 MP confirmed that he and JP spent most of their time together. They would travel to University together and play sport together. MP’s University results were suggestive of someone who spent a significant amount of time studying. He was also a consistent presence in the home, and particularly in the bedroom he shared with his brother, JP. 358 Defence counsel submitted that each of these family witnesses presented in a way that made sense. Their evidence was consistent with their presentation. It is not like they were poor students. They all gave evidence that they were studious. That is important when assessing the evidence. 359 BP’s mother gave evidence that she worked ten hours per week and had no need for babysitting. This suggests that JP and his siblings were not being prevailed upon to babysit. PV did not provide any particular circumstance which showed the need for any babysitting for BP or her brother, JaP. This evidence was given without contradiction by the Prosecution. In any event JP’s mother, TO, gave evidence that BP and her younger brother were ‘a little out of control’ and they were unlikely to offer to babysit. There was therefore no opportunity, but also no need, for BP and her brother to be at JP’s home, and especially in the bedroom BP shared with his brother. 360 It was said that the relationship between the families involved a strong familial bond. Defence counsel submitted however that JP’s father, and BP’s father were cut from very different cloth. It was not in dispute that they loved each family but that did not prove that they visited each other’s home frequently. In relation to PV’s suicide attempt, of course family would do anything to assist. That does not mean, without proof, that you would be seeing them all the time.611 361 Another issue raised in relation to opportunity was that BP was often, if not always with her brother. The iPad video at Exhibit P8 lends considerable support to that position. In addition, at page 13 of the Prescribed Interview, BP says that she hung out with her brother very often. The defence case is that they were inseparable. 362 It was argued by defence that the evidence of PP should be considered with caution. He had the whole family in MP’s and JP’s bedroom. He described this as a ‘rush of people’.612 He seemed to be trying to find an artificial way for BP to be in JP’s bedroom. 363 It was submitted that the open door issue was blown out of proportion. Defence counsel argued that the Prosecution elevated the open door policy to 611 T352. 612 T204. -- 66 of 74 -- [2024] SADC 83 65 discredit the defence witnesses. The general family practice was that bedroom doors were kept open. JP’s bedroom door did not have a lock, and of course during family events, the doors may be opened and closed. There was also evidence from TP that either BP or her brother would slam the door shut. 364 Defence counsel argued that the ‘open door’ policy was not an issue, despite attempts by the Prosecutor to make it such. This was because this case was not one where children were sequestered off to a remote location, or placed in a position where there was no risk of another person entering the room. 365 On the topic of observations of BP being at JP’s home, defence counsel submitted that the evidence of SP had to be approached with caution, particularly in the context of the evidence of TP of a cessation of contact between the families through 2016/2017. This was also confirmed by DP when she said that contact resumed when she turned 18. 366 Defence counsel submitted that the wider family was now a family deeply divided. After the allegations were made by BP the two families had no contact. The evidence must be considered in this context. The two families have become fortified in their positions. It was argued that SP’s evidence, that is contrary to much of the rest, should not be preferred and does not meet the burden of proof. 367 This demonstrates the forensic disadvantage for JP of delay, in the face of the Prosecution alleging JP and BP must have had some contact around the time of the offending, and that JP’s evidence was too absolute to be accepted. Defence counsel submitted that there were real forensic disadvantages when, BP, as a young child could not define when the offending occurred with any precision. Her evidence was vague, and she could not speak to the day of the week, month, season or year of any of the alleged offending. If the trial was closer to the time of the offending, the assertions, including those of SP, could have been met with more precision. The forensic disadvantage of delay was argued to be a significant issue in the proceedings. 368 Defence counsel addressed the Prosecutor’s submission that BP would not have known the season when the offending occurred because it took place inside. He argued that if BP knew what she was wearing, she would have known what the weather or season was. BP gave evidence that JP was wearing pants or pyjamas during the offending. However, the evidence was that only MP had pyjamas. That evidence was not refuted by the Prosecution. 369 It was argued that BP was particularly vague in relation to the sexual abuse that took place in the bathroom on one occasion. She was not sure who was home at the time, except JP’s mother. She did not recall, or know, what JP was wearing; what she was wearing; whether the bathroom door was closed; or when the offending took place.613 613 T150-151. -- 67 of 74 -- [2024] SADC 83 66 370 Importantly, BP did not know if JP had ejaculated. Defence counsel argued that on this event, a child would not be uncertain about this, if the events were truthfully narrated.614 371 In relation to BP’s vagueness, defence counsel pointed to the issue of the time frame over which the offending was alleged to have occurred. He noted that at page 22 of the transcript of the prescribed interview, it was said by BP that the offending occurred in years 4 and 5 which would have had her being 9 to 10 years of age. Her evidence was that she was 5 to 6 years of age.615 The charged period has her at 5 to 8 years old. This timeframe does not meet the evidence in the prescribed interview or given in cross-examination. 372 The reality of BP, and other prosecution witnesses, not being able to positively state when the offending occurred put JP at a disadvantage in meeting the case against him. Defence counsel referred to the statement of Bray CJ in The Queen v Pftizner that:616 Whether the date alleged in an information is vital to the charge must depend on the circumstances. So long as it is clear that the controversy turns on the events of a certain occasion, it may not matter if the date of that occasion is misstated, if the occasion itself is clearly identified, and both parties have directed their cases towards it. 373 Justice Gray in R v Abdulla617 set out the specificity that is required in providing particulars of offending. The matters set out as being important were: • that procedural fairness required adequate particularity to ensure a defendant knows the case they are to face; • that the dates in the Information have the purpose of deliberately identifying particular alleged acts which constitute the relevant crimes; • that the time/date of offending may be material if the age of a victim is an essential element of the charge. 374 In summary, he stated: Regardless of whether time is an element of the offence or of essence to the offence, the circumstances of the case, such as forensic issues raised at the trial, including alibi or lack of opportunity, may make the date vital. In such circumstances, even though the particulars of when an offence is alleged to have been committed are not an element of the offence, the proof of the date or date range alleged may be material to the integrity of the criminal process. 375 Defence counsel argued that these authorities confirm the requirement for proper particulars, including dates and general information, that places the 614 T732. 615 T112-115. 616 (1976) 15 SASR 171, 185. 617 [2010] SASC 52 as [89]. -- 68 of 74 -- [2024] SADC 83 67 offending in a factual context. In these proceedings, there was a lack of particularity which dovetailed into the issue of forensic disadvantage. He referred further to the discussion of Adams J in R v Stringer,618 where the significance of proper particulars to an accused’s understanding of the case to be met, rather than a case based on vague and labile allegations, was confirmed. 376 Defence counsel argued that there is a forensic disadvantage that accrues where the complaint evidence rests outside the date range of the charged offence. It is also fundamental in assessing BP’s reliability. He submitted, ‘…how can she allege these things when she is 5 or 6, or maybe 9 or 10?’619 377 In BP providing her evidence by the prescribed interview, defence counsel raised concern about the comments of the investigating officer. Whilst they were made to encourage BP to tell her story, the opinions or comments of the investigating officer should be ignored. He asked that I take that into account. 378 The evidence relating to JP’s family gifting a puppy to BP was submitted to be a reconstruction and unreliable. BP first gave evidence that JP’s father brought over the puppy on the day of the family meeting so she would be happy. However, BP rejected the gift as she did not want a puppy. The gesture shocked her, as if her son had done something like JP had done to her, she would have reported him to police. BP’s mother described the puppy as blackmail,620 although she later retracted that version of events.621 379 Later evidence was given that the puppy was in fact owned by AP, and the puppy was just taken next door by JP’s father to stop it barking. It was argued that AP’s evidence, supported by ThP, should be accepted rather than the clear reconstruction of BP’s family. This evidence taints BP’s narrative. 380 Defence counsel submitted that there were motives to lie. These included BP’s questions regarding JP’s earnings and his ownership of a house.622 In addition, she could have been influenced by the opinions of others regarding JP, particularly her sister, SP, who said that she hated JP when first told of the offending by BP.623 She was also a young girl who grew up in a household where there had been a rape allegation against her brother TP, by her mother. Such sexual allegations were not unknown. 381 It was suggested that the allegations did not come from a neutral setting, but rather one where concoction may well be evident, and reinforcement of view, supported by others. 618 [2000] NSWCA 293. 619 T730. 620 T481. 621 T482. 622 T167. 623 T329. -- 69 of 74 -- [2024] SADC 83 68 382 There was also manipulation on the part of BP’s father (PP) who gave evidence of a strong bond with JP, from whom he bought electrical parts each week from JP’s place of employment. JP often gave him a special deal.624 Defence counsel argued that this evidence did not demonstrate a relationship, but rather self-interest on PP’s part, and where PP’s priorities clearly lie. 383 There were also issues with the subsequent complaint to SP, whose evidence was that BP told her that JP had ‘…touched her multiple times underneath her clothes… her whole body’,625 and then that there was an application of force. It was submitted that this description did not marry up with the particularised allegations, or BP’s evidence. 384 In relation to LP being the first person to whom BP complained, there was simply no evidence to prove that complaint. Detective Brown in evidence confirmed that she was unable to speak with LP and did not have details of that complaint. She confirmed that BP alleged she made the first complaint to LP via the Instagram application, but had no details of that. The electronic communication no longer existed. Defence counsel submitted that the evidence of DP introduced a whole new set of allegations based on a double hearsay. 385 Defence counsel submitted that PP’s evidence was unreliable on many levels. His reference to JP giving BP a bell, for some unknown reason, was denied by both JP and BP. In addition, both SP and BP gave evidence that they sat down with PP before the start of the trial to discuss the evidence. However, PP denied this.626 386 It was submitted that SP was also not a credible witness. She strongly denied that she had ever discussed leaving a vibrator at her boyfriend’s home.627 However, BP in her evidence agreed that SP would discuss sexual matters in front of her. This included a time in a group, with her cousins AP and JP, where the subject of SP leaving a vibrator at her boyfriend’s house was raised. BP was then 13 years old.628 JP, MP and AP also gave evidence of the discussion regarding a vibrator whilst BP was in a group in a bedroom with all the cousins at their home. JP told SP off for referring to the vibrator in BP’s presence.629 387 Defence counsel submitted that this was not a matter of SP failing to recall the conversation as suggested by the Prosecution. Rather, SP had been adamant that the conversation did not take place. 388 This was argued to be important as it led to two conclusions. That SP could not be trusted; and that BP was exposed to sexualised conversations in the presence 624 T221. 625 T321.31. 626 T291-292. 627 T339-340. 628 T173-174. 629 T533-534; T578; T614-615. -- 70 of 74 -- [2024] SADC 83 69 of and by, her older sister. This may have led to reconstruction of relevant events and framing of JP. 389 In describing the defence case, counsel submitted that JP spoke consistently and honestly regarding his family’s living circumstances. This was supported by the evidence of his parents and siblings. The consistency between the witnesses makes the evidence reliable and credible. It was argued that the Prosecution’s submission that the evidence was too similar to be accepted, was the reversal of common sense. In this case all the issues were spoken to clearly and thoughtfully. The defence witnesses were not evasive and did not obfuscate. 390 It was submitted that on the basis of the defence witnesses, the Prosecution could not exclude their versions of events as a reasonable possibility. 391 A final issue raised was PP’s communications with Detective Brown during preparation for the trial, and his concern that ‘they’ required proof that BP went into JP’s bedroom alone. He and his wife only recalled her being at his brother’s home for family gatherings.630 The defence argue that PP and PV were acting as advocates, as opposed to being focussed on giving open and honest evidence to the best of their recollection. 3. Prosecution reply 392 The Prosecutor in reply took issue with the defence case that BP’s complaint to her cousin LP was not an initial complaint pursuant to s34M. He submitted that pages 26 to 27 of the Prescribed Interview set out the detail of that complaint made two years before trial. He urged me to consider these pages of the interview. Decision 393 I have carefully considered all of the evidence and submissions in the matter. Generally, the witnesses, including JP were giving evidence of matters that occurred between 8 and 10 years ago. Allowance has to be made for this, particularly in relation to BP who was quite young when the alleged offending occurred. I have borne this in mind when assessing the evidence. 394 The principal issue to be determined is whether the Prosecution has proved beyond reasonable doubt that JP committed two or more of the particularised sexual acts. There is no dispute that the other elements of the charge are proved. 395 The two most important witnesses in the trial are BP and JP. The evidence of other witnesses bears on their evidence, for an against each, but the focus of analysis is the credibility and reliability of BP and JP. 630 Exhibit D9; T462-466. -- 71 of 74 -- [2024] SADC 83 70 396 There can be no finding of guilt unless I am satisfied beyond reasonable doubt of the truthfulness and reliability of BP on material matters. I must therefore subject all of her evidence to close scrutiny. 397 A consequence of the above principle is, that I cannot find JP guilty unless I reject his evidence on material matters, and reject any evidence supporting his testimony, as being reasonably possible.631 398 If, in the face of two compelling bodies of opposing evidence, I am unable to determine where the truth lies, I will not be satisfied beyond reasonable doubt of the Prosecution case. 399 In addressing the sufficiency of the evidence, I have taken into consideration the forensic disadvantages faced by JP in responding to the Prosecution case given the delay since the alleged offending was said to have occurred. These disadvantages include the distortion of human memory and thereby, reconstruction; the loss of opportunity to test the specificity of events where memory fails; and therefore, the loss of opportunity to make any defence other than a simple denial. 400 This is compounded by the fact that there was no initial complaint evidence. The complaint was made by Instagram messages to a cousin (LP). Those messages have been deleted and LP did not give evidence. The evidence of first complaint could not be tested. Nor could it be compared to BP’s evidence before the court regarding the allegations. Her consistency could not be tested, via the first complaint. It was another two years before BP then told SP. 401 The offence of Maintaining an Unlawful Sexual Relationship with a Child was enacted to resolve the difficulty that victims experience in remembering the details of sexual offending with sufficient particularity, when it occurred when they were a young child. As a result, each alleged sex act does not have to be proved beyond reasonable doubt, as if each was the substantive charge that had been laid. I accept that BP could not be expected to recall every detail of the alleged sexual acts, nor was she required to do, for the Prosecution to make out the charge. 402 Nevertheless, there is a significant level of concern with BP’s evidence. Particularly, her description of the alleged sexual acts was vague and inconsistent. BP gave evidence that there were a lot of details about JP and the offending that she did not remember. Importantly, BP could not recall the exact time frame of the offending. The particulars of the offending were agreed, including a time frame of between 1 January 2013 and 31 December 2015. This placed BP as being between five and eight years of age, and JP as between 19 and 22. 631 Douglass v The Queen [2012] HCA 34. -- 72 of 74 -- [2024] SADC 83 71 403 BP however gave evidence that she did not know if JP was at university or high school when the offending started. This was despite JP being 19 years old at the start of 2013. 404 BP could not describe how JP asked her to play with his penis when under the desk; and did not know, even approximately, how many times this offending occurred. She did not know the period of time over which this occurred. 405 In relation to sexual acts in the bathroom, BP suggested JP made threats to get her to fellate him. However, she could not recall what those threats were. She did not remember how he described his penis (i.e., by slang), or what JP was doing whilst his penis was in her mouth. BP did however recall saying that she had ‘done it deep’. I find this an odd thing for BP to have said at seven years of age, in circumstances where there was no evidence that she understood what fellatio was. 406 BP later said that the demand for fellatio only happened once. Despite this, she could recall no surrounding details including whether JP ejaculated. I agree with defence counsel that this would be something one would expect to remember. 407 In her prescribed interview, BP said there were a lot of things she could not remember about the offending. This not only goes to her vagueness regarding the events, but also places JP at a forensic disadvantage. It is very difficult to assess where the truth lies. 408 BP’s evidence regarding the third incident was again vague. She did not know why she was not wearing a top whilst she sat on the bed with JP, and could not recall if she had taken her underwear off. Her evidence was inconsistent as to whether JP had touched her vagina under or over her underwear. JP’s vagueness extended to her not knowing when this offending occurred or whether other people were in the house. 409 BP agreed that JP’s family had an open-door policy. This makes JP’s offending particularly brazen in the context of her evidence that family was home during the offending, and there was an open-door policy. 410 BP’s vague evidence cannot be bolstered or fortified by the evidence of SP and DP. As set out above, DP’s evidence of what occurred was solely learned from SP. It is hearsay and has no evidentiary value. SP’s evidence was not first complaint evidence. Whilst the evidence confirmed the three types of sexual acts, SP’s evidence was exaggerated and embellished. It was not consistent with BP’s evidence. The escalation of the accounts of the offending makes it difficult to determine what occurred between BP and JP. 411 The inconsistencies between what BP said happened over the sexual acts, and what SP and DP have each said BP told them of the offending severely undermines BP’s reliability about what occurred between her and JP. This causes me to have a reasonable doubt as to whether the alleged offending occurred. -- 73 of 74 -- [2024] SADC 83 72 412 While I accept the natural difficulties a child faces in attempting to accurately recall details of past traumatic events, the fact remains that the vagueness of BP’s account of events and uncertainties in her memory must be carefully assessed in determining whether serious allegations of unlawful sexual acts have been proved beyond reasonable doubt. BP’s lack of complete memory of events weighs heavily in my assessment of the reliability of her evidence. 413 BP’s evidence that she disclosed the offending to her cousin LP in 2019 has not been proved. This does not assist in assessing her reliability and credibility. 414 BP said that during the period of the offending, and after, she did not change her behaviour around JP so not to raise suspicions. There was no suggestion that she stopped going over to JP’s home generally or, for family gatherings. Her family, in evidence, did not suggest any change in her behaviour. 415 In considering whether BP’s evidence of the alleged offending should be accepted beyond reasonable doubt, I have also taken account of defence counsel’s submissions, of the inherent risks taken by JP associated with BP’s allegations when considering the plausibility that JP acted as BP alleged. That is, sexually assault her, on different occasions in his bedroom and bathroom, whilst other family members were in the house and doors were open. 416 While I do not find that BP has necessarily deliberately lied about being sexually abused by JP, there are important matters that seriously affect the reliability of her evidence, including important inconsistencies, memory difficulties and general vagueness of her account. These issues are not overcome by the evidence of her siblings and parents. Their evidence was hearsay and embellishment of what BP had told them. I find that the Prosecution case, viewed as a whole, does not satisfy me beyond reasonable doubt, of JP’s guilt. 417 I have also considered the evidence of JP. My decision, as set out above, is not based upon a preference of the evidence of JP, but rather on the issues I have with the evidence of BP and other Prosecution witnesses. I also find that I am not able to reject JP’s evidence and his denial of any sexual offending. In particular, that he and his brother, MP, spent most of their time together, including sharing a bedroom. I find that there was just no opportunity for BP to be in JP’s bedroom as alleged by her. 418 In all the circumstances, I find myself unable to exclude as a reasonable possibility that JP never engaged in any unlawful sexual activity with BP. Having considered and assessed the entirety of the evidence presented to the Court, I am left with a reasonable doubt whether the alleged unlawful acts as described by BP have been proved beyond reasonable doubt. Verdict 419 I find JP not guilty of the charge on the Information. -- 74 of 74 --