[2024] SADC 97

Prosecution: R Counsel: MS J DAVEY - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: PLN Counsel: MR P MORRISON - Solicitor: BRIAN DEEGAN LAWYERS Hearing Date/s: 07/06/2023, 08/06/2023, 09/06/2023, 14/06/2023, 04/07/2023, 05/07/2023, 06/07/2023 File No/s: DCCRM-22-103 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 PLN Criminal Trial by Judge Alone [2024] SADC 97 Reasons for the Verdict of his Honour Judge Alexandrides 14 August 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD The accused is charged with one count of maintaining an unlawful sexual relationship with a child. The acts are alleged to have occurred between 13 December 2014 and 1 March 2018 when the victim was aged between nine to 10 years and 13 years. The accused elected for trial by judge alone. Held: Guilty Evidence Act 1929 (SA) s 34, referred to. -- 1 of 89 -- -- 2 of 89 -- R v PLN [2024] SADC 97 Prosecution case 1 KN, the female complainant in this matter, was born in Vietnam on 17 January 2005.1 2 PLN, the accused, is the father of KN. The accused was born on 3 February 1966. 3 The accused separated from KN’s mother, KXN, when KN was about two years old. KN lived with her mother in Vietnam and saw her father on weekends. 4 In 2014 when KN was nine years old, she came to Australia with the accused and an older brother XQN (known as Vince). The family arrived as migrants on 12 December 2014. 5 After a period of short-term accommodation, on 6 February 2015 the family secured a rental property at 49 Days Road, Croydon Park. A tenant named Mr Loc also lived at the premises. 6 On 6 February 2015, KN’s eldest brother XLN came to Australia and moved into the Days Road premises. 7 The accused worked as a farm labourer engaged in pruning and picking fruit. XLN and the tenant Mr Loc were engaged in the same work. Vince attended English classes and then school in those early years and was also engaged in farm work. XLN and Vince worked periodically as farm labourers and restaurant hands and also attended university and school. KN commenced school at Kilkenny Primary School on 9 February 2015. 8 It is alleged that around 2014 or 2015 the accused began an unlawful sexual relationship with KN.2 9 The first alleged unlawful sexual act by the accused with KN occurred in the accused’s bedroom at the 49 Days Road premises. The accused and KN shared the bedroom. 10 KN was on the computer in the bedroom, wearing her pyjamas. The accused told her to get on his bed where he was sitting up, covered with a blanket. KN got under the blanket next to the accused. She was lying on her back. 11 The accused took her hand and placed it on his penis under the blanket. The accused had his hand around her hand and was using her hand to masturbate himself. 1 T16.6-9. 2 T20.14-35. -- 3 of 89 -- [2024] SADC 97 2 12 The accused then removed the blanket, placed his hand on KN’s chest under her clothes and rubbed her nipples while still masturbating using KN’s hand. 13 The accused then moved his hand down to KN’s vagina under her clothing and rubbed her vagina while continuing to masturbate using KN’s hand. 14 The accused then ejaculated and left the room after cleaning himself with a tissue. 15 It is alleged that the second unlawful sexual act by the accused with KN occurred about two days later, again at the Days Road premises. 16 KN was at home when the accused told her to go to his bedroom. She was scared and complied. 17 In the bedroom, the accused sat upright on the bed with his legs extended. He removed her pants and underwear, pulled down his pants and told her to sit on his penis. KN complied and sat on the accused placing her vagina on top of his penis. The accused tried to insert his penis into KN’s vagina. After a short time, he inserted his penis into her vagina, which KN said hurt a little. 18 The accused told her to move her body. He told her to ‘ride him’ and move up and down. KN was scared but did what he told her. 19 The accused then told her to get off. He then directed her to suck his penis and told her how to suck his penis. KN complied. 20 The accused then told her to suck his testicles and instructed her how it was to be done. KN complied. While she was sucking his testicles, the accused was masturbating. He then ejaculated. The accused then cleaned himself up, put on his clothes and left the room. 21 It is alleged that from that point onwards the accused engaged in unlawful sexual acts with KN continually which became routine. KN could not recall the specific details of these further incidents of sexual acts by her father. 22 While living at the Days Road premises, KN gave evidence that the sexual acts occurred four to five times a week when her father was not at work. 23 The incidents occurred often around daytime or after school before her brothers got home from work, or around bedtime when everyone was in their room and she was sleeping.3 24 The sexual acts involved the accused inserting his penis into KN’s vagina on every occasion. Sometimes the accused would lick her vagina, sometimes he 3 T45.24-38. -- 4 of 89 -- [2024] SADC 97 3 would cause her to suck his penis, to masturbate his penis and cause her to lick his testicles. 25 The accused told KN, ‘don’t tell anyone’, and ‘don’t let nobody know about this’.4 26 When KN finished year 5 at Kilkenny Primary School, the family moved to a premises at 17 Murchison Street, Mansfield Park. At those premises, KN shared a bedroom with the accused or sometimes her brothers, who were sharing a room. A different tenant lived with them at Murchison Street. 27 It is alleged that the sexual acts between the accused and KN continued while they lived at Murchison Street. The frequency and nature of the sexual acts remained the same. 28 As time progressed, the touching of KN’s vagina by the accused changed. It went from occurring for a longer period to a shorter period.5 29 After the first incident of penile vaginal intercourse when KN sat on the accused’s penis, sexual intercourse would most often occur with her lying on her back and the accused on top and facing her. 30 On some occasions, but rarely, she would lie on her stomach and he would insert his penis into her vagina from behind. 31 Once the accused had ‘showed her everything’, namely, after he had showed her how to suck his penis and after he had inserted his penis into her vagina, KN would not masturbate him using her hands because most of the time he would insert his penis or make her suck his penis.6 32 When the accused began engaging in penile vaginal intercourse with KN, he would ejaculate in her vagina. Later when KN began to menstruate, he would ejaculate outside her vagina just under her ‘tummy’.7 33 When KN was about 11 years old and in year 6, the family then moved from 17 Murchison Street to 44 Liberty Grove, Woodville Gardens. KN then began attending Woodville Gardens Primary School. 34 The accused’s bedroom at Liberty Grove was formerly a lounge room. The front door to the premises was located in the room. The front door was not generally used; the occupants and people attending would enter the house from a rear door adjacent to the laundry which was towards the rear of the house. 4 T40-41. 5 T47.1-20. 6 T49.16-26. 7 T60.26-T61.6. -- 5 of 89 -- [2024] SADC 97 4 35 There were a series of tenants living at the house at the same time. There were two rooms occupied by tenants. 36 KN usually shared a bedroom with her brother Vince at the Liberty Grove premises. She sometimes slept in a tenant room when there was a vacancy. 37 It is alleged that the frequency and nature of sexual acts by the accused with KN generally remained the same at Liberty Grove. However, the accused would lick KN’s vagina more frequently at this time. 38 While living at the Liberty Grove premises, the accused engaged in a particular sex act with KN for the first time. It involved each of them performing oral sex on the other simultaneously. The accused licked KN’s vagina and at the same time KN sucked the accused’s penis while they faced each other. That sexual act occurred more than once, but not often. 39 When KN was about 12 years old and in year 7, the family moved to 33 Essex Street, Woodville Gardens. KN continued to attend Woodville Gardens Primary School. 40 KN had her own bedroom at 33 Essex Street. It was adjacent to the accused’s bedroom and shared an internal wall with that room. 41 The unlawful sexual acts by the accused with KN continued after they moved to 33 Essex Street. 42 The sexual acts would commence each time after the accused knocked on the bedroom wall which divided his and KN’s room. KN knew from experience that the accused was knocking to summon her to his bedroom where the sexual conduct would occur. 43 If KN did not comply, he would go to her room and direct her to his room. If she locked her bedroom door, he would use his key to unlock the door. 44 The frequency of the sexual acts remained the same, at four to five times a week. The sexual acts always involved penile-vaginal penetration. The accused would also make KN suck his penis, he would rub her vagina and he would masturbate. This occurred as frequently as it had at the Liberty Grove premises. The frequency of licking her vagina was the same or increased. 45 While living at Essex Street, KN’s brother XLN moved out because of his disagreements with the accused over money and the accused’s gambling habit. 46 Later, Vince also moved out of Essex Street because of difficulties with his relationship with the accused. Vince arranged for KN to move in with him at premises in St Clair. 47 The accused continued to support KN financially after she moved out. -- 6 of 89 -- [2024] SADC 97 5 48 The sexual abuse did not continue after KN moved out of the accused’s premises. However, on one occasion when the accused attended the St Clair premises, he attempted to engage in sexual intercourse with KN. The attempt was unsuccessful because Vince was heard to return home. 49 When in year 9 or 10 at Woodville High School, KN told her school friend YL that she was sexually abused at home. KN told YL that her dad did it. When asked by YL, KN confirmed that her father had inserted his penis into her vagina. 50 After KN moved away from her father to live with Vince at St Clair, she told him that their dad had ‘raped’ her. 51 The accused is charged on an Information dated 22 April 2022 with the following offence. Statement of Offence Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of Criminal Law Consolidation Act, 1935). Particulars of Offence [PLN] between the 13th day of December 2014 and the 1st day of March 2018 at Croydon Park and other places, maintained an unlawful sexual relationship with [KN], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [KN], namely: (a) touching her nipples; (b) touching her vagina on more than one occasion; (c) causing her to masturbate his penis; (d) inserting his penis into her vagina on more than one occasion; (e) causing her to perform an act of fellatio on him on more than one occasion; (f) causing her to lick his testicles; (g) masturbating in her presence on more than one occasion; and (h) performing an act of cunnilingus on her on more than 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. Defence case 52 The accused elected for trial by judge alone. He was represented by experienced counsel and assisted by an interpreter who was present throughout the trial. 53 The accused exercised his right to remain silent and did not give evidence. -- 7 of 89 -- [2024] SADC 97 6 54 The allegation of maintaining an unlawful sexual relationship was contested and through his counsel, the accused put his denials of wrongdoing to the complainant, KN. 55 The defence case relies on several issues which are said to give rise to a reasonable doubt about the credibility of the complainant and her reliability as a witness. 56 In essence those issues are; 1. Lack of opportunity to commit the acts of sexual abuse in the circumstances, timing and frequency alleged; 2. Inconsistencies and omissions between the complainant’s evidence and prior statements to police and initial complaint evidence; 3. The complainant’s motive to lie, due to the claimed withdrawal of financial support from the accused and his marriage to his second wife, who the complainant did not like and resented. Legal Principles Onus and burden of proof 57 The prosecution carries the onus of proof. The accused is presumed to be innocent unless and until the prosecution can prove each of the elements of the offence beyond reasonable doubt. If there remains a reasonable doubt about any of the essential elements of the offence, then the prosecution has not proven its case and the accused is entitled to an acquittal on that charge. Expressed in another way, if there is a reasonable possibility that the accused has not committed the offence as alleged, the prosecution case must fail. The accused is not obliged to prove anything to secure his acquittal. 58 The elements of the offence with which the accused has been charged and which the prosecution must prove beyond reasonable doubt are discussed later in these reasons. Assessment of testimonial evidence 59 The testimonial evidence of witnesses must be assessed for both its credibility and reliability. 60 I am permitted to consider the demeanour of the witnesses when determining their credibility and reliability. In doing so, I am required to take into consideration that witnesses who come before the court vary in age, background, education, intellectual capacity, ability to express themselves and personal characteristics. 61 The assessment of the evidence of each witness requires a consideration of, amongst other things, its cogency and consistency, whether it is consistent with -- 8 of 89 -- [2024] SADC 97 7 other facts which I accept, whether the witness has made inconsistent statements in the past and whether the witness has been shown to have lied in the past. 62 I may accept or reject a witness’s evidence in its entirety, or I may reject some aspects of the evidence of the witness and accept other parts. 63 The prosecution case rests on the evidence of the complainant and I am required to scrutinise her evidence carefully. Evidence of the accused 64 The accused exercised his right to silence and did not give evidence. I do not draw any inference adverse to the case he puts forward from his exercise of that right. His silence cannot be used to fill any gaps in the prosecution case. He is not required to prove anything. Evidence of good character 65 It is an agreed fact that the accused does not have any criminal antecedents. No other evidence of good character was led. 66 I take into account the accused’s good character in assessing the likelihood that he committed the offence with which he is charged. Special arrangements for taking evidence from witnesses 67 The complainant KN gave evidence with special arrangements in place, namely the provision of a screen to obscure the complainant’s view of the accused, the presence of a court companion and the court being closed to the public. A witness, YL, gave evidence with a screen in place to obscure her view of the accused. I have not drawn any adverse inference against the accused from the fact that these arrangements were in place. I have not allowed the fact of these special arrangements to influence the weight that I gave to the evidence of the two witnesses involved. No prejudice, sympathy or fear in the assessment of the evidence 68 I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, prejudice, or fear. Discreditable conduct 69 The evidence in this case disclosed conduct which is not the subject of any charges in which the accused was apparently engaged which might reasonably be regarded as discreditable. 70 The evidence and its relevance can be summarised as follows. 71 It was said the accused was experiencing financial difficulties because of his involvement in gambling. The financial difficulties were the cause of disagreements between the accused and his two sons. There was evidence at trial -- 9 of 89 -- [2024] SADC 97 8 that the accused would ask his sons to borrow money and would yell and become abusive. It was said by Vince that he believed the accused had taken some money from him. The complainant knew the accused and her brothers argued over financial issues, including the non-payment of bills by the accused and monies allegedly owed by the accused to her eldest brother. 72 The evidence was relevant because it explains why KN’s brother Vince departed the accused’s home and the circumstances in which KN also left. 73 It was also relevant because it related in part to the financial issues, which on the defence case, provide a potential motive for the complainant to lie about the alleged sexual abuse. 74 The evidence was not objected to and was admissible pursuant to s 34P(2)(a) of the Evidence Act 1929 (SA) for a permissible use identified above. 75 The evidence of potentially discreditable conduct was not relevant for any other purpose. 76 The evidence, if accepted, is not to be used for the impermissible use, namely, to reason that because the accused has engaged in the discreditable conduct, he is a person of bad character and therefore more likely to commit the offence with which he is charged. Initial complaint and elaboration 77 In her evidence, KN said she made an initial complaint to her school friend YL in year 9 or year 10 at Woodville High School about her father’s alleged unlawful sexual acts. The evidence of the complainant was also that she elaborated on that initial complaint to her brother Vince after they moved into the St Clair premises. 78 I remind myself about the requirements under s 34M of the Evidence Act about the use of the initial complaint evidence and the evidence about an elaboration of that complaint. 79 Firstly, the evidence of the complaint by KN to YL and subsequently to her brother informs the court about when the allegations made by KN against her father first came to light. 80 The second permissible use is as evidence of the degree of consistency of conduct of KN. As a matter of law, the making of a complaint or disclosure of sexual abuse or misconduct is admissible and relevant in assessing the consistency of conduct of an alleged victim about that sexual abuse or misconduct. It may be taken into account to assess whether the complainant’s disclosure to YL and her brother about her father’s alleged conduct is consistent with the alleged conduct having occurred. In other words did the complainant, in reporting the conduct, act in a way consistent with the way a person who had experienced such conduct would have acted? Furthermore the content of the disclosure, the account given by -- 10 of 89 -- [2024] SADC 97 9 the complainant to YL and her brother, may be considered to assess the consistency of the evidence of the complainant given in court about the alleged sexual offending. 81 The evidence of KN’s disclosure of the alleged sexual abuse to YL and her brother is not evidence of the truth of what KN said to either of them. The law does not permit the use of what KN disclosed to them as evidence of the truth of what she said happened. Because she disclosed an allegation to them does not mean it was true when said. The disclosure cannot be used as evidence which supports the truth of the evidence she gave, namely that her father did any of the things alleged against him. 82 However, the disclosure can be used to assess KN’s credibility to the extent to which the disclosure demonstrated a degree of consistency of her conduct in making the complaint and the degree of her consistency in evidence about the alleged conduct of the accused. 83 It is for the trier of fact to determine the degree or extent of the consistency of conduct demonstrated in KN’s disclosures to YL and Vince. To the extent that the disclosure is consistent in terms of her conduct and her narrative, it may be used to support her credibility. 84 I also note that there may be a variety of reasons why an alleged victim of sexual offending makes a complaint or disclosure of alleged offending at a particular time to a particular person. It follows that there may be a variety of reasons why a complaint was not made at an earlier time or to another person. Motive to lie 85 On the defence case it was suggested that KN lied about the alleged sexual abuse by the accused, potentially because she was aggrieved about a disagreement between the accused and her brothers over money, the level of financial support the accused was providing for her and the fact he had remarried and she did not get along with the accused’s new wife. These suggested reasons for lying were interrelated. 86 I remind myself of the approach I must take when considering the evidence about which it is suggested by defence possibly provides a motive for KN to lie. 87 I must consider this argument and any evidence said to support such a motive to lie. I must consider whether that argument and evidence affects whether I accept KN’s evidence. 88 The defence is not required to prove that KN had a motive to lie. If I reject the argument or theories put forward by defence, that does not mean that KN is telling the truth. It does not strengthen the prosecution case. There may be many reasons why a witness may lie. -- 11 of 89 -- [2024] SADC 97 10 89 The defence have suggested possible reasons but if those reasons are rejected there may be another or indeed other reasons. It is not possible to discern why a person may lie. 90 I am not to treat KN’s evidence as more credible or more believable because I have rejected a possible reason or reasons for her to be lying. There may be other reasons that no-one has identified. 91 If I conclude that there is no evidence that KN has a motive to lie, or lied for a particular reason, I must not conclude that she has no reason to lie and is therefore telling the truth. Forensic disadvantage 92 As a trial Judge hearing a matter without a jury, I am not required to consider the question of whether the accused has suffered a “significant forensic disadvantage” which may have enlivened the obligation to direct myself in accordance with the provisions of s 34CB(2)(a) and (b) of the Evidence Act. 93 However, the circumstances of this case do require that I consider the circumstances which do give rise to a forensic disadvantage to the accused. 94 There is, in this case, a real possibility that the accused suffered a forensic disadvantage by virtue of the delay between the time it is said the alleged incidents occurred and when the allegations were first reported to the police and came to the attention of the accused. 95 The accused is disadvantaged by the passage of time because of its effect on his memory about details such as his movements and work arrangements. The disadvantage arises from a limitation on his ability to instruct his counsel sufficiently to challenge the complainant’s evidence about the details of the time and circumstances of the alleged acts of unlawful sexual conduct. Those issues were relevant on the defence case about the opportunity of the accused to have committed the unlawful sexual acts at the relevant times and with the frequency alleged. It was also relevant to the issue of who else may have been present at the premises at the time of the alleged unlawful sexual acts. Such evidence would be relevant indirectly to the issue of opportunity insofar as there may have been a risk of detection. 96 The delay in this case may have affected the accused’s capacity to contact potential witnesses who were living at the premises where it is said the alleged unlawful sexual acts occurred, and who may have been able to provide evidence about the issues identified above. Excluded evidence 97 During the trial, the defence sought the exclusion of proposed evidence on the prosecution case of an alleged conversation between the witness Vince and the -- 12 of 89 -- [2024] SADC 97 11 accused. The evidence of the alleged conversation was relevant on the prosecution case as a statement against interest made by the accused. 98 The proposed evidence was excluded. I gave reasons for the exclusion of the evidence at the time and it is not necessary to repeat those reasons. 99 There was no application at the time of the ruling that I should recuse myself having heard the evidence which was claimed to be confessional. 100 I disregard the excluded evidence from my deliberations. 101 Whether the prosecution has proven its case is to be decided only upon the admissible evidence. Elements of the offence - Maintaining an unlawful sexual relationship with a child 102 The offence of maintaining an unlawful sexual relationship with a child is comprised of four elements which the prosecution must prove beyond reasonable doubt. 103 The first element the prosecution must prove is that the accused maintained a relationship with KN during the relevant period covered by the charge. The charge relates to alleged conduct occurring from 13 December 2014 to 1 March 2018. There is no dispute that the accused is the complainant’s biological father. There was a continuing familial relationship of father and daughter between them which was maintained by the accused during the period of the alleged offending. 104 The second element the prosecution must prove is that there was an unlawful sexual relationship between the accused and KN. An unlawful sexual relationship is defined at law as a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child over the period encompassed within the particulars of the charge. An unlawful sexual act means any act that constitutes a sexual offence. The alleged unlawful acts are set out in the particulars of the charge on the Information. There are eight different unlawful sexual acts which are particularised on the Information. 105 The prosecution is not required to allege particulars of the unlawful sexual acts that would be necessary if the acts were charged as separate offences. The prosecution is not required to prove the particulars of the unlawful sexual acts as if the acts were charged as separate offences, but must prove the general nature or character of those acts. 106 As a matter of law, each of the particularised acts pleaded in the charge, if proven, constitute a sexual offence. 107 The acts particularised on the Information, at paragraph a) touching her nipples, paragraph b) touching her vagina, would each constitute the offence of indecent assault. -- 13 of 89 -- [2024] SADC 97 12 108 An indecent assault is an assault that is accompanied by or committed in circumstances of indecency. An assault for the purpose of this offence is simply any intentional, that is a deliberate rather than accidental, application of force to another person without lawful excuse or justification. Touching someone would be sufficient to constitute an assault for this purpose provided the touching was intentional and unlawful. 109 The application of force or touching must be unlawful, that is without lawful justification or excuse. The alleged acts in this case are denied and no such lawful excuse or justification has been raised. 110 The assault must be indecent. That means the assault must be accompanied by or committed in circumstances of indecency. Here 'indecency' means something which offends the community's contemporary or existing standards of propriety or decency and which has a sexual connotation or overtone. 111 The acts particularised on the Information at paragraph d) inserting his penis into her vagina, e) causing her to perform an act of fellatio on him and h) performing an act of cunnilingus, would each constitute the offence of unlawful sexual intercourse. The offence of unlawful sexual intercourse is established if the prosecution has proved that there was an act of sexual intercourse engaged in between an adult and a person under the age of 17 years. Sexual intercourse is broadly defined at law and includes the act of cunnilingus, that includes licking any part of the vagina. 112 The acts particularised on the Information at paragraph c) causing her to masturbate his penis, f) causing her to lick his testicles and g) masturbating in her presence would each constitute the offence of committing an act of gross indecency. 113 An act of gross indecency in the context of this case involves doing something of a sexual nature or with sexual overtones, with or in the presence of a person under the age of 16 years. Whether an act is indecent is to be determined according to contemporary standards of behaviour. A gross act of indecency means an extreme or flagrant act of indecency. 114 Returning now to the elements of the offence charged. In relation to the second element of the offence, namely, to establish that there existed an unlawful sexual relationship, the prosecution must establish beyond a reasonable doubt that there were at least two unlawful sexual acts during the period encompassed by the charge on the Information. 115 It is not necessary to prove all the alleged unlawful sexual acts occurred. It is necessary to prove only two or more sexual acts particularised on the Information occurred in the relevant period. -- 14 of 89 -- [2024] SADC 97 13 116 It does not matter which two of the particularised unlawful sexual acts are proven, so long as there have been at least two acts proven to have occurred over the period alleged in the charge. 117 The issue of consent or lack of consent of KN to any of the alleged acts of unlawful sexual conduct simply does not arise. As a matter of law, a child (for the purpose of these offences), someone under the age of 17 years, is deemed not capable of consenting to any form of sexual activity. During the period alleged in the charge, KN was under the age of 17 years and did not have the legal capacity to consent. 118 Thirdly, the prosecution must prove that KN was a child during the period of time encompassed by the charge. Again, for the purpose of this offence, a child is a person who is under the age of 17 years. KN was born on 17 January 2005. There is no dispute that she was a child during the relevant period. 119 The fourth element the prosecution must prove is that the accused PLN was an adult during the period encompassed by the charge. There is no dispute that between the dates charged the accused was an adult. Summary of Trial Evidence KN – The Complainant Examination in chief 120 At the time of giving evidence, KN was 18 years of age. She was born in Vietnam on 17 January 2005.8 121 Her mother is KXN who lives in Vietnam.9 122 KN has two brothers. Her oldest brother is XLN. Her middle brother is XQN, also known as Vince.10 123 KN’s parents separated when she was about two years of age and still living in Vietnam.11 After her parent’s separation, KN lived with her mother and saw her father on weekends. 124 In 2014, KN came to Australia with her father and brother Vince when she was nine years of age.12 When they first arrived, they moved in with KN’s great aunt and remained there for about two months. At that house KN, her father and Vince slept in the same room.13 8 T16.6-9. 9 T16.10-13. 10 T16.14-21. 11 T16.24-29. 12 T16.30-37. 13 T17.3-13. -- 15 of 89 -- [2024] SADC 97 14 125 When KN came to Australia she could not speak or write English. When she went to Kilkenny Primary School there was a special program for kids who had just moved to Australia. KN learned English from there.14 49 Days Road, Croydon Park 126 After leaving the great aunt’s house, KN and her family lived at 49 Days Road, Croydon Park.15 127 Initially, KN’s oldest brother, XLN, remained in Vietnam. XLN joined the accused, KN and Vince in Australia once they had moved to the Days Road address.16 128 KN was shown a document which she recognised had her name and signature written in her handwriting dated 26 August 2021. KN identified it as a document she drew of the floor plans of the houses in which she lived with her father. The floorplans were tendered as Exhibit P3. 129 The floorplan numbered 1 on Exhibit P3 was 49 Days Road. 130 With reference to the floorplan, KN identified the room in which a tenant stayed. That tenant’s name was Mr Loc. He was not related to her. He lived there for whole time her family lived at that address.17 131 KN also identified two rooms marked ‘Brother room’ where her brothers lived. Her oldest brother was in the room next to the tenant’s room. KN identified her middle brother’s room as the one next to the room marked ‘Dad’s room’.18 KN said that at Days Road, there was no separate bedroom for her. She shared a bedroom with her father.19 There was only one bed in the room and they slept on the same bed every night.20 132 While at Days Road, her father worked in farming.21 KN said her brothers XLN and Vince also worked with her father in farming.22 Her father worked every day except when it was raining. He was involved in seasonal work cutting apples and picking cherries.23 133 The tenant, Mr Loc, did not have any work that KN was aware of.24 14 T50.7-12. 15 T17.27-31. 16 T17.14-31. 17 T18-T19. 18 T19.5-11. 19 T19.12-18. 20 T50-T51. 21 T19.20-22. 22 T20.1-13. 23 T19.31-33. 24 T19.36-38. -- 16 of 89 -- [2024] SADC 97 15 First incident 134 KN identified the first alleged sexual incident involving her father, which occurred at the Days Road address. KN could not remember exactly what time of year it was, but it was around 2014 to 2015. She said she was not yet going to school because it was in December and it was school holidays.25 KN said she was sitting at her computer in her dad’s bedroom. On Exhibit P3, she marked the location of the computer desk.26 135 KN also identified a booklet of 12 photographs tendered as Exhibit P4 depicting 49 Days Road, Croydon Park. KN said that photograph number three was taken inside her father’s room. The headboard of the queen bed was up against the fireplace. The computer desk was on the opposite wall to the wardrobe shown in the photograph.27 136 At the time of the incident, KN said that she was wearing pyjamas, namely a long sleeve top with polka dots and long pants. Her father was wearing a T-shirt and shorts, which KN described as ‘at home clothes’.28 137 KN said that she was on the computer and her father was in the room with her. Her father told her to get on his bed. She did what he told her to do. He was already on the bed.29 138 When she got on the bed, her father was on her right side and she was on the left side of the bed. He was under a blanket and she got under the blanket too.30 KN was laying on her back.31 Her father was sitting up with his legs straight out.32 139 KN said that her father grabbed her right hand and placed it on his penis and made her touch it. KN demonstrated how she was holding his penis and agreed that she had wrapped her fingers around his penis.33 The accused’s hand was wrapped around her hand the whole time and he was demonstrating how to masturbate him. She said that he made her stroke his penis up and down.34 140 KN could not remember how long that went on for but estimated around five minutes.35 25 T20.33-38. 26 T20.19-24. 27 T28.7-32. 28 T21.1-6. 29 T21.8-21. 30 T21.22-T22.5. 31 T26.38-T27.5. 32 T21.29-30. 33 T22.13-23. 34 T22.36-38. 35 T23.1-3. -- 17 of 89 -- [2024] SADC 97 16 141 At that point, the accused had his pants pulled down to his knees, but still had his top on.36 KN did not see how the accused’s shorts came to be around his knees. The blanket was flipped over and the accused was no longer under the blanket.37 142 When the accused first put KN’s hand on top of his penis, she did not know what it was.38 143 KN said that the accused also put his hand up her shirt onto her chest. He placed his hands around her nipples and rubbed in a circular motion for about 30 seconds. While he did this, he still held her hand showing her how to masturbate his penis.39 144 KN said that after he touched her nipples, he moved his hand down to her vagina.40 KN still had her clothes on. The accused put his hand under her pants and inside of her underwear.41 His hand was on the ‘outside’ of her vagina, meaning that his hand was in contact with her vagina while rubbing it. He did not put his finger in her vagina.42 145 While rubbing her vagina, he was continuing to show her how to masturbate him. KN said that he rubbed her vagina until he ejaculated.43 146 KN said that at first, his penis was ‘squishy’ but then it got harder.44 147 At the time of this incident, KN did not understand ejaculation. She described that when he ejaculated, ‘white stuff’ came out of his penis.45 148 KN said that her father then took ‘some tissue’ and cleaned himself up.46 After wiping off, he put his clothes on and walked out of the room. He did not say anything as he left and pretended like it never happened.47 149 After this, KN said she was just lying there. At the time, KN felt confused and scared.48 She was thinking, ‘what just happened’ and ‘why is he doing this to me’. KN remembers that she knew that it was not normal.49 Aside from telling KN 36 T23.7-9. 37 T23.10-17. 38 T27.16-21. 39 T23.19-35. 40 T23.36-38. 41 T24.4-11. 42 T24.12-19. 43 T24.38-T25.2. 44 T25.12-13. 45 T25.14-19. 46 T25.20-21. 47 T25.32-38. 48 T25.22-23. 49 T26.7-13. -- 18 of 89 -- [2024] SADC 97 17 to get on the bed, the accused did not say anything else throughout the incident. KN said she just did what he told her to do. She did not say anything to him.50 150 At the time of this incident, KN remembers that the tenant was home but not in the house. He was in the backyard doing something. Her two brothers were not home.51 151 KN was asked when she was sitting at the computer and the accused told her to get on the bed, whether the accused said anything more to her about what she should do when she got on the bed. KN said that it was the first time it happened and she did not expect anything like that to happen. When she got on the bed, she lay on her back, but that was not because of anything her father had said to her.52 Second incident 152 KN said that around two days after the first sexual act there was another incident.53 153 KN said that at the beginning, she was sitting outside somewhere. The incident occurred at the same house at Days Road. KN was sitting in Vince’s bedroom.54 154 The incident began when her father said, ‘go into my room now’.55 KN felt scared because she did not know what was going to happen. There was no one at home, so she did what her father told her. KN went into her father’s room and he followed her from Vince’s room. Her father was behind KN when she went into his room. Her father then locked the door.56 155 Her father told her to get on the bed and KN did so. After her father had locked the door, he sat on top of his bed. He told KN to come and lay on the bed. Her father was wearing ‘at home clothes’ again, namely pyjamas, shorts and a cotton T-shirt.57 KN did not remember what she was wearing.58 156 When KN first got on the bed, she was sitting on the edge of the bed with her legs over the edge.59 157 Her father was sitting on the bed with his legs straight out while leaning on the bedhead.60 While on the bed, her father pulled down his pants and told her to sit on top of his penis. Before her father told her to sit on top of his penis, he took 50 T25.24-31. 51 T26.15-22. 52 T26.30-T27.5. 53 T28.33-T29.1. 54 T29.2-7. 55 T29.8-11. 56 T29.24-33. 57 T30.4-11. 58 T31.33-37. 59 T30.12-T31.8. 60 T31.22-28. -- 19 of 89 -- [2024] SADC 97 18 off her pants. Her underwear was also off.61 He said, ‘come, come sit on top of me’.62 KN did what he told her.63 158 KN sat on top of the accused. His penis went under her vagina but did not go into her vagina. She agreed that her vagina was positioned above his penis as she sat on him. His penis was under her vagina and was touching it.64 The accused still had his T-shirt on.65 159 After KN sat on the accused, he was trying to insert his penis into her vagina. After a few minutes, he was successful. KN said that it hurt ‘just a little bit’ but did not hurt that much.66 She said she could feel his penis in her.67 160 After the accused put his penis in her vagina, he told her to move her body. He told her to ‘ride him’. He said to move ‘up and down. Jump on it, bounce’.68 161 At this time, KN said she was really scared and did not know what was going to happen to her, but she just did what the accused told her.69 162 This did not go on for long. It came to an end when the accused was frustrated that KN did not know what to do, so he told her to get off him.70 She got off.71 KN knew he was frustrated from the way he looked and from what he said.72 The accused then made her suck his penis. KN was questioning him by saying, ‘What is this? What are you doing?’. In response, her father told her that he created her body and ‘he can have it whenever he likes, he can use it whenever he likes’.73 163 The accused told KN to suck on his penis, so she put her mouth over his penis and started sucking on it, like how she would suck on a straw.74 164 This did not go on for long. KN said she did not satisfy him, so he told her to stop sucking on it. After this, he told her to suck his balls/testicles. He told her to suck the skin of his ‘balls’.75 The accused told her, ‘Do not suck it on – too much, only, only suck on the skin outside, do not, do not use too much pressure’.76 61 T31.14-18-T32.7-10. 62 T31.30. 63 T31.31-32. 64 T32.30-36. 65 T33.2-3. 66 T33.10-12. 67 T33.9-12. 68 T33.16-18. 69 T33.19-21. 70 T33.24-26. 71 T33.27-28. 72 T37.19-31. 73 T33.33-36. 74 T34.1-4. 75 T34.8-11. 76 T34.16-19. -- 20 of 89 -- [2024] SADC 97 19 165 While KN was sucking his testicles, the accused’s body was still in the same position. KN was the one moving.77 166 KN was kneeling on her knees on the bed while trying to suck his balls. The accused was laying on his bed. She put her head near his private areas and sucked his balls. Her knees were closest to his bottom near the pelvis area. He was on her right side and she was on the left. Her whole body was on the bed. She was turning sideways to kneel on the bed and suck his balls.78 167 KN sucked on his balls for under five minutes, until he ejaculated. His hand was rubbing his penis while she was sucking his balls.79 When he ejaculated, the ejaculate got on his hands.80 The accused cleaned up the ejaculate with a tissue.81 168 The accused told KN that she should try to drink his semen because it ‘gave you beautiful skin’. He told her that her mum did it and, ‘that’s why she got nice skin’. He told her that she should practice drinking his semen.82 169 After wiping himself off with the tissue, the accused did not say anything. He just left the room and pretended like it never happened. He had put his clothes back on.83 170 After he left, KN sat in his room and cried. She was feeling as though he was not her father; he was not acting like it.84 KN put on her pants and underwear and sat on the bed and cried.85 Subsequent incidents 171 KN said that from then on, her father kept making her have sex with him continuously. She did not remember separate occasions because it was like a routine at that point.86 172 At the Days Road address, her father would engage in sexual acts with KN four to five times a week. There was a routine of sexual acts whereby her father would tell her to get into his room, he would lock the door and he would perform sexual acts on her. He would insert his penis into her vagina every time. He would sometimes make her suck his penis and sometimes he would suck/lick her vagina.87 The sucking or licking of her vagina would occur one to two times a week. When 77 T34.37-T35.4. 78 T35.5-T36.12. 79 T34.20-22. 80 T34.29-32. 81 T36.13-16. 82 T36.20-24. 83 T36.25-28. 84 T37.4-6. 85 T37.7-11. 86 T38.37-T39.5. 87 T39.25-38. -- 21 of 89 -- [2024] SADC 97 20 he could not get his penis in her vagina, he would try to lick her vagina to make it easier for his penis to go in.88 173 KN said that there were no other sexual acts that occurred in addition to those. 174 The accused would tell KN to go to his room and she would do as she was told. If she did not do what he told her, he would follow her around making her uncomfortable until she gave in.89 175 KN was asked whether the accused said anything to her about what might happen if she told anyone.90 He told her she would get in ‘big trouble’ if she said anything. He told her, ‘Don’t tell anyone’, and ‘Don’t let nobody know about this’.91 176 At Days Road, the routine of sexual acts happened in her father’s bedroom. KN remembered just one occasion where it occurred outside of her father’s bedroom. The tenant had moved out and her father was painting the walls and rearranging the room. She remembered that he was using a roller to paint the walls white. He told her to come to him. He took off his pants and made her suck his penis. She was kneeling down and he was standing up painting the walls. She did this for five minutes. After this, he pulled her and told her to come to his bedroom. In his bedroom, he had sexual intercourse with her by inserting his penis into her vagina.92 177 On the occasions that the accused made her have penile-vaginal intercourse, he would insert his penis into her vagina until he ejaculated.93 178 Before KN got her period, the accused would ejaculate inside her vagina. He would then clean up using a tissue to wipe her vagina and then clean up after himself.94 After she got her period, he would ejaculate outside of her vagina, on her pelvis area below her lower tummy.95 KN got her period when she was in year 6 when she was around 11 or 12 years of age. By that time, they had moved to a different address.96 179 While at the Days Road address, KN started attending Kilkenny Primary School.97 180 Her older brother XLN came to live with them at Days Road when he arrived in Australia a few months after the accused, KN and Vince. Her older brother was 88 T40.6-10. 89 T41.3-9. 90 T40.33-34. 91 T40.38-T41.1-2. 92 T41-T42. 93 T42.18-24. 94 T42.25-31. 95 T60.36-T61.6. 96 T42.32-38. 97 T42.15-17. -- 22 of 89 -- [2024] SADC 97 21 living at the Days Road address at the time of the first incident when her father touched her inappropriately.98 181 The incidents occurred often around the daytime when her brothers were working. Sometimes it would occur in the night-time. At this time, KN was attending school from 8:40am to 3:00pm and would arrive home at around 3:30pm.99 The incidents would occur after school before her brothers got home from work, or around bedtime when everyone was in their room and she was sleeping.100 17 Murchison Street, Mansfield Park 182 The accused, KN and her brothers moved from Days Road, Croydon Park to 17 Murchison Street, Mansfield Park towards the end of the year while she was still attending Kilkenny Primary School.101 KN stayed at Murchison Road until after she finished year 5 at Kilkenny.102 183 While at Murchison Street, XLN worked at a sushi restaurant. KN could not remember if he went to university when living there.103 184 KN could not remember if her brother Vince was still working in farming or doing something else when they moved to Murchison Street.104 185 KN identified the floorplan of Murchison Street which is marked number 2 on Exhibit P3. She identified her father’s room and marked the position of his bed. She marked the tenant’s room which was next to her father’s room. This was a different tenant to the tenant who lived at Days Road. It was a mother and daughter who shared the same room.105 Both of KN’s brothers shared the room marked ‘Brothers Room’.106 186 KN did not have her own bedroom at Murchison Street. She slept in her father’s room or her brothers’ room. There were multiple mattresses in the brothers’ bedroom. KN did not have her own mattress but the mattress in the brothers’ bedroom was big so they were spaced out when they slept. At Murchison Street, she mainly slept in her father’s room. There was just one bed in that room.107 187 KN identified a bundle of nine photographs of 17 Murchison Street, Mansfield Park (Exhibit P5).108 By reference to photograph eight in Exhibit P5, KN 98 T44.28-T45.6. 99 T45.24-33. 100 T45.34-38. 101 T43.1-7. 102 T50.16-17. 103 T71.29-T72.3. 104 T72.4-9. 105 T44.9-12. 106 T46.9-10. 107 T50.34-T51.24. 108 T50. -- 23 of 89 -- [2024] SADC 97 22 said that her father’s bedhead was up against the window/curtains. The bed was centred with space on either side of the bed.109 There was a desk with a computer in the room. This was to the left of the bed if you were looking at the bed.110 With reference to photograph 8 of Exhibit P5, the desk would have been to the left of photograph 8.111 188 At Murchison Street, the sexual acts always occurred in her father’s room.112 189 KN said that the frequency of sexual acts with her father stayed the same at the Murchison Street address, namely four to five times a week.113 The type of sexual acts also stayed the same. There was penile-vaginal intercourse all of the time. KN would suck his penis most of the time. He would suck or lick her vagina sometimes.114 He would put his hand on her vagina and rub her vagina every time he tried to have intercourse with her.115 He would rub her vagina every time at both Days Road and Murchison Street.116 190 In relation to the first time the accused rubbed her vagina at Days Road, KN was asked whether that action was the same or different compared to when she was at Murchison Street. KN said that, ‘now that he keep on having sex with me, he don’t have to do it for too long. He can just check if I’m prepared and then he would just enter’.117 The first time he touched her vagina for a long time, but once it became a frequent routine, he would not touch her for long before inserting his penis into her vagina.118 Subsequent incidents of sexual acts 191 On the second occasion of sexual activity, where the accused inserted his penis into KN’s vagina, he tried to put his penis into her vagina by using his hands. On subsequent occasions, he would use his hand again at the base of his penis and would try to slide his penis into her vagina. KN indicated a kind of forward guiding motion with her hand.119 192 During the instances of penile-vaginal intercourse after the first occasion where the accused told KN to sit on him, KN would often lay on her back and the accused would be on top of her. They would be facing each other.120 That was their position most of the time.121 Sometimes she would lay on her back and he would enter. Sometimes she would be in a position where her back was facing a pillow 109 T61.23-36 110 T61.37-T62.6. 111 T62.10-11. 112 T50.1-6. 113 T46.14-18. 114 T46.24-38. 115 T47.5-8. 116 T61.7-14. 117 T47.9-16. 118 T47.16-20. 119 T47.31-T48.8. 120 T48.20-27. 121 T48.15-19. -- 24 of 89 -- [2024] SADC 97 23 and the accused was behind her. He would insert his penis into her vagina from behind, whereby they would both be facing the same way. KN would be lying down on her stomach. This happened rarely, but it did happen.122 193 KN did not remember other positions where they had penile-vaginal intercourse.123 194 KN said there was no particular order to the sexual acts.124 195 KN could not remember whether the first incident of penile-vaginal intercourse was the only time intercourse occurred in that position whereby she was sitting on top of him.125 196 The act of the accused causing KN to masturbate his penis by using her hand did not happen again after the first alleged sexual act at Days Road. After he had shown her how to suck his penis, and after he inserted his penis into her vagina, he would not make KN masturbate him using her hands because most of the time he would insert his penis and make her suck his penis.126 197 There were other occasions when he masturbated himself in her presence. That happened some of the time.127 198 There was not a time when she physically resisted the sexual acts at Days Road.128 199 KN described her father’s penis as small.129 44 Liberty Grove, Woodville Gardens 200 After living at the Murchison Street address, the accused, KN and her brothers moved to 44 Liberty Grove, Woodville Gardens.130 201 While living at Liberty Grove, KN attended Woodville Gardens Primary School. She was 11 years old and in year 6.131 She stayed at Liberty Grove for the whole of year 6.132 202 At Liberty Grove, her father was doing seasonal farm work. He did that type of work at Days Road, Murchison Street, Liberty Grove and at the next address 122 T48.28-32. 123 T48.33-36. 124 T62.15-24. 125 T49.16-26. 126 T49.22-26. 127 T49.30-38. 128 T61.18-22. 129 T61.15-17. 130 T62.25-29. 131 T62-63; T69. 132 T74.9-10. -- 25 of 89 -- [2024] SADC 97 24 they resided at. The number of days he worked depended on the season. He would leave the house by 5:00am and would come back around 5:00pm.133 203 While at Liberty Grove, XLN worked in a sushi restaurant for some time. He was also enrolled at university. His hours of work and university were irregular and KN did not remember them.134 204 At Liberty Grove, Vince worked at a Vietnamese restaurant and studied at Woodville High School.135 KN could not remember the hours Vince worked at the restaurant but he did not arrive home until around 10:00pm or 11:00pm. She did not remember how many times he worked in a week but he did work weekends.136 KN did not know whether the tenant, Mr Loc, was still doing farm work at Liberty Grove.137 The other tenants were not permanent.138 205 At Liberty Grove, the frequency of sexual acts stayed the same, namely four to five times a week.139 The frequency of penile-vaginal intercourse was the same, namely all the time. The frequency of the accused making KN suck his penis was the same, which was most of the time. The frequency of the accused licking her vagina happened more often at Liberty Grove. The frequency of the accused rubbing her vagina stayed the same, which was every time. The frequency of her father masturbating himself in her presence stayed the same, which was some of the time.140 206 There were other acts of sexual abuse at the Liberty Grove address. 207 KN described an occasion where the accused was trying to put KN in a position where her face was ‘facing his penis’ and her vagina was ‘facing his face’. The accused was telling her to lick his penis while the accused was licking her vagina.141 KN did not remember whether this act occurred for the first time at their residences in Woodville Gardens, but she did not remember it happening before moving to Liberty Grove. This sexual act occurred more than once at Liberty Grove, but not a lot.142 208 KN said that they lived at that address for a year until she finished the whole of year 6.143 209 No other sexual abuse occurred at Liberty Grove.144 133 T70-T71.7. 134 T71.12-25. 135 T72.10-16. 136 T72.21-28. 137 T72.29-34. 138 T72.35-37. 139 T63.5-12. 140 T63-64. 141 T64.17-20 142 T65.3-7. 143 T64; T74. 144 T64.33-35. -- 26 of 89 -- [2024] SADC 97 25 210 KN identified floorplan number three in Exhibit P3 as her father’s bedroom at 44 Liberty Grove. KN had marked her brothers’ rooms and her father’s room. KN had marked a front door in her father’s room. She explained that his bed was in the living room where the front door was situated. This room did not have a privacy door, you could just walk in and see the accused’s bed in the lounge room. 211 KN was shown Exhibit P6 and identified photograph 3 as a photo of the loungeroom that had been turned into her father’s bedroom.145 In reference to the photo, the front door was on the opposite side of the heater. His bedhead was against the heater and under the air-conditioner. The side of the bed was up against the wall under the window. The bed was in the corner of the room.146 On the floorplan contained in P6, KN identified the room marked ‘Lounge’ as the room her father slept in as a bedroom.147 212 When people entered the house, they would usually enter from the front gate shown in photograph 13 in Exhibit P6 through the back door that leads to the carpark. That door lead into the laundry room, that then went into the kitchen and dining area.148 213 KN identified the tenant’s room in the top left of the diagram in Exhibit P3. The tenant was the same tenant that stayed at Days Road – Mr Loc.149 There was another tenant that stayed in the middle bedroom but KN said they had people constantly moving in and out, so she did not remember any of them.150 214 At Liberty Grove, KN usually slept in Vince’s bedroom. If there was no tenant, she would sometimes sleep in the tenant room. The sexual acts would mostly occur in her father’s bedroom. They sometimes occurred in Vince’s bedroom. KN did not remember if sexual acts occurred in any other room.151 33 Essex Street, Woodville Gardens 215 KN said their next address was 33 Essex Street, Woodville Gardens. 216 While living at this address, KN was in year 7 and was around 12 years old. She was still attending Woodville Gardens Primary School. 217 KN identified the floorplan of the house at 33 Essex Street on Exhibit P3. She identified where she marked her brothers’ bedrooms. The room that she marked with the word ‘Sister’ was her room. KN explained that in Vietnamese culture she would be referred to as sister.152 145 T66.35-38. 146 T66-T68. 147 T68.22-29. 148 T68.36-T69.10. 149 T69.22-27. 150 T69.28-32. 151 T73.12-38. 152 T74.29-34. -- 27 of 89 -- [2024] SADC 97 26 218 KN identified her father’s bedroom on the floor plan. She said the rectangle drawn in that room represents his bed with the bedhead up against the internal wall. The bedhead of her bed backed onto the other side of the same wall in the next room.153 219 While living at Essex Street the frequency of the sex acts stayed the same, namely four to five times a week.154 220 Her father would indicate to KN that he wanted to engage in sex by knocking on the internal wall between their rooms. That occurred four to five times a week.155 221 KN explained how she came to understand her father’s intentions when he first knocked on the wall. She said when he first knocked, she did not understand so she did not go to his room. The accused then came into her room and told her to go into his room. This routine continued. KN said every time her father knocked, she would go to his room. KN described an incident where the accused lost his keys and he borrowed her set of keys to make a new key. At that time he made a copy of her room key. Every time he knocked on the wall and she did not go to his room and had locked her door, he would use the key to unlock her room and tell her to get into his room.156 222 At Essex Street, all the sex acts occurred in the accused’s room.157 223 The sex acts always involved penile-vaginal intercourse. 224 The accused would make her lick or suck his penis the same frequency as at the previous addresses, which was most of the time. He would lick her vagina at the same or at an increased frequency as he had done at Liberty Grove. He would rub her vagina at Essex Street with the same frequency as he had done before. He would masturbate himself at Essex Street at the same frequency as he had done before. KN could not remember if at Essex Street the oral sex had occurred with her sucking his penis and him licking her vagina at the same time while facing each other.158 225 KN could not remember any other sexual acts her father made her perform at that address.159 Ambulance incident 226 KN remembered one time where her father’s leg was hurting and he tried to have sex with her that day. She said she ‘slightly pushed him away’ but he had sex with her anyway. The next day his leg hurt and he could not get out of bed. KN 153 T75.1-18. 154 T76.4-10. 155 T76.4-29. 156 T76.17-29. 157 T76.31-35. 158 T76.31-T77.23. 159 T77.24-26. -- 28 of 89 -- [2024] SADC 97 27 was at school and he called the school. A teacher told KN there was a family emergency and dropped her home. When she arrived home an ambulance was already there. She got into the ambulance and went to the hospital. Her father was a patient in the ambulance.160 227 At some point KN’s oldest brother, XLN, moved out of the Essex Street address. KN and Vince moved out less than two months after this.161 228 When living at Essex Street, KN could not remember XLN going to work but he sometimes worked on the farm with her father. He was no longer working at the sushi restaurant. XLN was still doing studies, the same as before, when they lived at Liberty Grove. XLN was working irregular hours at that time.162 229 When they moved to Essex Street, Vince’s work arrangements changed. He would sometimes do farm work with her father. The work was seasonal, and the days and hours would vary.163 230 The hours her brothers were out of the house for work varied.164 231 KN gave evidence that there was no tenant at Essex Street.165 Disagreements over money and moving out of the accused’s home 232 KN understood that her oldest brother XLN moved out due to a disagreement with her father. She did not know what the disagreement was about.166 233 KN said the reason that she and her brother Vince moved out of Essex Street was because of a disagreement between Vince and her father. She did not know what that disagreement was about.167 234 KN understood that there was some disharmony and disagreements about financial problems. The source of the financial problems was that the bills could not be paid on time. She did not know who it was that could not pay the bills.168 235 KN said that she could not say why the household bills were not paid on time because they never talked to her about money problems.169 160 T78.8-27. 161 T78.29-T79.6. 162 T79.13-36. 163 T79.37-T80.12. 164 T80.16-21. 165 T80.22-26. 166 T80.30-35. 167 T80.36-T81.12. 168 T81.13-29. 169 T81.30-33. -- 29 of 89 -- [2024] SADC 97 28 236 KN said she was aware that there were money problems but was not sure why.170 237 KN knew that the money problems were her father’s. KN knew that her father’s money problems were because of gambling.171 238 KN said that when her father and two brothers had a talk together and argued, she was not allowed to be in the same room. She was not allowed to listen to the conversation.172 239 KN moved out with Vince because Vince did not think it would be best for her to stay with her father.173 Living at the St Clair premises with Vince 240 KN moved to the St Clair address with Vince almost straight after they got back from a trip to Vietnam.174 241 She and Vince rented the premises at St Clair. She was 13 years old and had started year 8 when they moved to St Clair.175 It was the beginning of year 8 and she was going to Woodville High School. 176 It was Vince who arranged the rental property for them.177 242 The St Clair premises had two bedrooms. It was just KN and Vince living there and they had separate rooms.178 243 The sexual abuse by her father did not continue at St Clair.179 244 KN gave evidence that there was one occasion where her father was inappropriate at St Clair.180 245 Her father came over to look around at the new house. Vince was not at home. Her father told KN to get into her room and take off her pants. He then undressed himself. He was about to insert his penis into her vagina when Vince arrived home, so nothing happened.181 246 Before Vince interrupted her father, he had got undressed and taken off KN’s pants. They were in her room and were both on the bed.182 She was lying on her 170 T81.34-36. 171 T81.37-T82.5. 172 T82.6-12. 173 T82.16-19. 174 T86.5-12. 175 T82.25-26. 176 T82.29-31. 177 T82.20-27. 178 T83.8-14. 179 T82.32-34. 180 T82.35-37. 181 T83.2-7. 182 T83.25-30. -- 30 of 89 -- [2024] SADC 97 29 back and he was on top of her facing her. He was touching her breast and he was about to insert his penis into her vagina. It happened quickly and then her brother came home.183 She knew her brother had come home because she heard the door; it made a clicking sound.184 247 KN then put on her pants and got dressed. The accused quickly pulled up his pants and walked outside like nothing happened.185 248 While living at St Clair KN was unemployed. Her brother and father were supporting her financially. Her father gave her money every two weeks. He gave the money to her through her brother.186 249 Her father also gave her money directly when she asked for it. That would happen every week. The amount depended on how much she asked for, around $50-$200.187 250 KN did not have a bank account and the accused would often come over to her house and gave her cash directly.188 251 KN would ask for money to hang out with friends and buy some new shoes, or some new clothes. When hanging around with friends she agreed she would purchase food and entertainment, that sort of thing.189 252 KN operated a mobile phone. Her father bought her the phone and paid the ongoing phone bill.190 Vietnam trip 253 Around December 2017, before moving into the St Clair premises, KN went back to Vietnam with her brother Vince.191 They returned around 19 January 2018. The purpose of the trip was to visit their mother.192 254 When they returned from Vietnam, they started packing straightaway and moved into the St Clair premises within the next week after returning.193 255 The money that her father gave KN continued up until the day she reported the matter to police in May 2021.194 183 T84.9-12. 184 T84.13-16. 185 T84.18-19. 186 T84.20-30. 187 T84.31-38. 188 T85.1-5. 189 T85.11-23. 190 T85.24-31. 191 T85.33-T86.2. 192 T86.3-4. 193 T86.5-12. 194 T86.13-23. -- 31 of 89 -- [2024] SADC 97 30 Initial complaint 256 KN said the first person she told about what her father was doing to her was her friend, YL.195 257 She first met YL at Woodville Gardens Primary School. They both did year 6 and year 7 at that school.196 They met in year 6 and became best friends in the middle of year 6.197 258 They both later attended Woodville High School.198 259 The first time KN told YL of the offences was in class. They were at High School. KN could not remember whether it was in year 9 or year 10.199 260 KN gave evidence that the conversation occurred in either the Science or IT class, because they had the same teacher for those classes.200 261 The conversation came up when KN was feeling sad and was not having the best day.201 262 She told YL, ‘I’m going to tell you a secret, don’t tell anyone’. KN said it was easier to tell YL because she was not her family.202 263 KN could not remember the exact words she said to YL. She remembers the conversation was short. 203 264 KN said that in her memory she told YL, ‘Can you please keep this secret?’. YL said yes. KN then told her, ‘I got sexually abused at home’. YL asked her who abused her and KN said, ‘My dad did’.204 265 KN said that YL asked her if she meant that her father inserted his penis into KN’s vagina. KN replied, ‘Yes he did’.205 266 KN said that she did not say anything else to YL about the sexual abuse.206 195 T86.24-29. 196 T86.33-36. 197 T86.38-T87.6. 198 T87.7-8. 199 T87.9-19. 200 T87.20-26. 201 T87.27-29. 202 T87.29-32. 203 T88.1-7. 204 T88.7-10. 205 T88.21-23. 206 T88.27-28. -- 32 of 89 -- [2024] SADC 97 31 267 KN said that she did not describe to YL any of the sexual acts performed on her by her father or which he made her perform on him. KN said she only told YL that he inserted his penis into her vagina.207 Elaboration of complaint 268 KN said the second person she talked to about the sexual abuse was her brother Vince.208 269 The conversation began in the kitchen at the St Clair premises. They both then moved to Vince’s bedroom to talk privately.209 270 That conversation happened around year 9 to 10. KN was not sure what time of year it was.210 271 KN gave evidence about what led up to her telling her brother. She stated it was because she was not doing good at school. She was skipping school a lot and her brother asked her if she was okay. He asked, ‘What happened’.211 KN told him, ‘Can he please keep a secret?’. After he promised he would keep a secret, she told him what happened; that she had been ‘raped by my dad’. KN was begging Vince not to tell anyone.212 272 KN could not remember the exact words she said to her brother.213 273 KN said she straight up told Vince that her dad raped her, nothing more. KN said that she used the word ‘rape’.214 274 After she told Vince she had been raped by her dad they just sat there quietly. Her brother told her that he was confused and that he did not know what to do. He said, ‘this is a lot’.215 275 Her brother did not ask her anything after that.216 Complaint to police 276 KN gave evidence that she spoke to her mother in Vietnam by telephone around Mother’s Day in May 2021. Soon after the conversation, around 16 May 2021, she reported what her father did to her to the police.217 207 T88.33-38. 208 T89.2-3. 209 T89.12-17. 210 T89.18-22. 211 T89.24-26. 212 T89.26-30. 213 T89.31-33. 214 T90.1-7. 215 T90.11-16. 216 T92.15-20. 217 T92.25-34. -- 33 of 89 -- [2024] SADC 97 32 Cross-examination Family relationships 277 Before she moved to Australia, KN and Vince lived with their mother in Vietnam. The accused would sometimes see her and take her out on weekends.218 278 KN is close with Vince and she gave evidence she still lives with him.219 He has helped her with the court proceedings. He has spoken to the police on her behalf to arrange appointments and has gone with her to meetings with the police.220 279 KN was close with her mother between 2014-2021.221 KN would call her twice a week.222 Days Road address 280 KN went to Kilkenny Primary School.223 281 At 49 Days Road, KN would rarely sleep in Vince’s bedroom in the rear room of the house. She did not remember her father sleeping with her older brother.224 KN remembers her brothers sleeping together and she would sleep in the accused’s bedroom.225 282 The accused’s bedroom door had a lock, but KN does not remember what kind of lock, other than it being a key lock. The door could be locked from the inside. A key was required to lock it from the outside.226 283 KN gave evidence the offending mostly occurred after school.227 284 The accused worked as a fruit picker and farm hand. When he left for work, he would leave at about 5:00am or 6:00am and return at about 6:00pm. KN did not remember if Mr Loc would work with the accused.228 Her eldest brother, XLN, worked with the accused when he arrived in Australia.229 The accused also got Vince a fruit picking job. The accused would work at different times to her brothers.230 They would work in different places together.231 218 T93.16-18. 219 T93.27-37. 220 T93.38-T94.8. 221 T93.24-26. 222 T139.5-6. 223 T101; T119. 224 T94.26-32. 225 T94.29-32. 226 T99.27-T100.13. 227 T101.38-T102.5. 228 T103.8-20. 229 T104.19-23. 230 T104.24-32. 231 T105.7-9. -- 34 of 89 -- [2024] SADC 97 33 285 Vince was attending English Secondary school and then moved to Woodville High School.232 KN did not remember if Vince came straight home after school.233 286 KN agreed that it was rare for the offending to occur outside of the accused’s bedroom. She agreed that the first time she mentioned the incident that occurred while her father was painting a room at Days Road was during her evidence in court.234 She disagreed that this was because she was making it up. In re- examination, when asked why she did not mention to police the incident that occurred when her father was painting the walls, KN explained that this incident involved oral sex, and she had already given a statement to police that stated she had performed oral sex on her father, therefore did not mention this occasion.235 287 KN’s grandfather also lives in Australia.236 When she attended the English program at Kilkenny Primary School, buses were provided to drop the students off and take them home. When she finished that course at the end of the year, they stopped providing that bus service. At the end of the year, her grandfather would sometimes pick her up and take her home.237 He continued to do that until she started attending Woodville Primary School. She started riding her bike and walking to school after that.238 288 KN did not recall that when the accused was at work, Mr Loc would often be home. Mr Loc would sometimes go out of the house, but he would usually be at home when he was not working with the accused.239 Murchison Street address 289 At Murchison Street, KN said she sometimes slept in her brothers’ room. She disagreed that she slept with them all of the time.240 290 The accused’s bedroom had a door with a door handle. She was not sure if there was a lock.241 The offending mostly occurred after school. When KN was on school holidays, it would also occur during the day – in the morning, around lunchtime and before her brother got home.242 291 The accused would leave the house about 5:00am to go to work and return at about 6:00pm.243 Vince would work with the accused from time to time.244 232 T103.35-38. 233 T104.2-4. 234 T114.1-19. 235 T159.2-9. 236 T119.4-6. 237 T119.10-16. 238 T120.7-9. 239 T120.14-29. 240 T95.8-10. 241 T100.22-23. 242 T102.4-19. 243 T103.3-18. 244 T104.5-7. -- 35 of 89 -- [2024] SADC 97 34 292 KN did not remember if the tenant there (who was a mother with a daughter) had a disability.245 She remembered seeing the mother walk. The mother was not home quite often.246 293 KN did not remember how long she lived at Murchison Street, but she was still wearing her Kilkenny school uniform. In her mind, they lived there for a short time. She did not know what the daughter of the tenant did, they did not communicate much. KN is not in contact with them now. She was not aware if the mother had passed away.247 294 KN gave evidence that the other tenants would sometimes stay for months or weeks, not permanently. She recalled three or four tenants. The tenants did not talk to her, so she did not know when they were going to be home or not. KN did not know their routines. Liberty Grove address 295 The accused’s bed was in the corner of the bedroom near the heater. KN stated that this was the bed on which the accused did sexual things to her. She said she made a mistake when drawing the bed in front of the front door on Exhibit P3. She maintained that the bed was in the corner of the room. There was nothing blocking the front door.248 She does not remember if the front door opened. There was no internal door from the hallway into the lounge room (i.e. the accused’s bedroom).249 296 Again, KN gave evidence the offending mostly occurred after school.250 At Liberty Grove, the accused would leave the house about 5:00am to go to work and return at about 6:00pm.251 297 Mr Loc was a tenant at Liberty Grove for a short time. There were also other tenants that would stay for weeks or months. They were not permanent. KN remembered around three of four tenants and they would come and go at different times. KN did not know when they would be coming and going, they did not talk to her.252 KN did not know their routines.253 298 Vince would work at a Vietnamese restaurant. KN stated he did not just work there on weekends only. When asked, she said she was unsure if he mainly worked there on weekends.254 245 T120.36-38. 246 T121.1-3. 247 T121.11-19. 248 T98.3-26. 249 T99.10-12. 250 T102.10-23. 251 T103.26-29. 252 T121.23-38. 253 T122.1-3. 254 T104.8-12. -- 36 of 89 -- [2024] SADC 97 35 299 KN agreed that she told police that the accused’s bed was backed up against the front door and she drew a diagram of it in that position.255 KN advised she did not deliberately position the bed in front of the door, knowing that it was not the correct position, so that she could convince others that people could not walk in on the accused while he was performing sexual acts on her. KN said drawing the bed in front of the door was a mistake.256 300 KN said the accused would sometimes abuse her in Vince’s bedroom. This was different to the normal pattern of the offending occurring in the accused’s bedroom. She agreed that something ‘not in the pattern of things’ would stick out in her mind.257 She agreed that she did not tell police that the offending sometimes occurred in Vince’s bedroom. She agreed that she told police on 22 December 2021 that the offending occurred on the accused’s bed.258 Essex Street address 301 KN gave evidence that she had her own bedroom in Essex Street. She would sleep in that bedroom.259 302 The door of the accused’s bedroom had a handle and a lock. KN was not sure what kind of handle or what kind of lock.260 303 All of the sexual things that happened between KN and her father happened in the accused’s room.261 The offending mostly occurred after school.262 304 Again, the accused would leave the house about 5:00am to go to work and return at about 6:00pm.263 Vince worked with the accused sometimes on the farms.264 Vince was also attending Thebarton Senior College.265 305 KN knew that there was a man who stayed in the living room at Essex Street. She did not know if he was a tenant, because there was no room for him. She thought he was a friend. He slept on a sofa bed in the living room.266 KN does not remember him spending much time in the living room.267 255 T116.11-14. 256 T115-117. 257 T117.25-28. 258 T116-117. 259 T99.16-23. 260 T100.28-33. 261 T100.24-27. 262 T102.4-5. 263 T103.13-17. 264 T104.13-15. 265 T104.16-18. 266 T124.24-38. 267 T125.1-4. -- 37 of 89 -- [2024] SADC 97 36 306 KN was shown Exhibit P3. She said the living room was directly outside her bedroom. The accused’s bedroom was right next to her bedroom.268 307 KN did not know if another mother and daughter tenant moved into the Essex Street premises after she moved to St Clair. When asked, KN did not recall meeting a woman called Tran Hahn or another woman called Tran Noc.269 308 After KN moved out of Essex Street she never went back to that address. She did not recall going back to Essex Street and she had never met a woman there.270 She did not know who the accused was living with. She denied spending the night at Essex Street sometimes after she moved out. She denied that Vince spent the night at Essex Street after moving out.271 St Clair address 309 The landlord at the St Clair residence was Uncle Murphy, the accused’s half- brother.272 310 No one saw the accused try to have sex with her at this address.273 This was the only time the accused did anything inappropriate at this address. It was the last time that anything sexual happened with the accused.274 KN agreed that the first time she mentioned this incident was in her statement to police on 6 June 2023.275 Finances 311 At each of the four houses that they lived at, KN said the accused and her brothers paid rent.276 The accused and her brothers never involved her in anything to do with money.277 She remembers the accused working and paying for groceries.278 312 The family moved to Essex Street when KN commenced year 7. XLN lived with the family at Essex Street. XLN moved to Melbourne when KN was at the end of year 7, the same year.279 When she was living in Essex Street, KN found out that the accused gambled.280 313 KN did not know if her father asked XLN to borrow money due to his gambling. She did not know if the accused would ask Vince for money. She knew that the accused and her brothers argued about money because of the accused’s 268 T125.10-17. 269 T125.27-30. 270 T125.36-T126.3. 271 T126.18-23. 272 T118.12-14. 273 T118.4-11. 274 T118.22-24. 275 T118.29-36. 276 T102.32-36. 277 T102.34-36. 278 T102.37-T103.1. 279 T136.31-38. 280 T136.12-14. -- 38 of 89 -- [2024] SADC 97 37 gambling and that fact the household bills were not being paid. The accused was responsible for buying the groceries.281 314 Vince would never mention money to KN. Vince moved out because of arguments about money and gambling. Both KN and Vince did not like the accused gambling. KN thought that the accused should have spent the money he spent on gambling on the household, supporting her and her brothers.282 315 KN stated that Vince told her he was not happy with the accused and she then moved out with Vince into Uncle Murphy’s house. Vince arranged the move.283 They moved into that house almost as soon as KN got back from a trip to Vietnam. When she was in Vietnam, she stayed with her mother.284 She agreed that her mother has always told her to stay close to her brother and that she wants KN to have a close relationship with him. KN said her mother always reminded her about that, even in phone calls.285 She would speak with her mother twice a week.286 316 Vince did not tell her that he thought the accused had stolen money from him while at Essex Street. He and the accused would argue in a separate area. They would sit in the room and talk calmly and KN could not hear them. They would tell her to go into her room. She could sometimes hear them say ‘money’. She knew they were arguing.287 317 When KN was living at Essex Street, she wanted a dress for her year 7 graduation. The accused told her that he could not afford to give it to her. She agreed that she argued with him about it.288 First occasion of offending 318 KN said that they came to Australia around December 2014. They stayed with her grandmother for one night and then stayed at a unit in Ferryden Park.289 319 KN, the accused and Vince shared a room at the unit. They stayed at the unit until her eldest brother arrived in Australia. They then moved to the Days Road address. The first occasion of offending occurred at Days Road.290 281 T137.2-23. 282 T137.26-38. 283 T138.3-10. 284 T138.14-16. 285 T138.22-29. 286 T139.5-7. 287 T139.18-32. 288 T139.37-T140.9 289 T105.17-23. 290 T105.24-35. -- 39 of 89 -- [2024] SADC 97 38 320 KN had not started school at that point.291 She would stay home all day on the computer, chilling at home while the accused and her brothers went to work. She woke up and they would all be gone.292 321 KN remembers clearly the first time that her father made her touch his penis.293 322 The accused did not put his fingers in her vagina the first time something inappropriate happened. KN agreed, after refreshing her memory from her statement to the police dated 16 May 2021, that she had told police that on the first occasion the accused put his finger inside her vagina and moved it in and out.294 KN agreed that was different to what she had said in her evidence, but she was not asked which account was accurate.295 323 KN said the only thing the accused told her was to get on the bed. He did not say anything else to her and she did not say anything else to him on this occasion. KN accepted that he did not tell her not to tell anyone on that occasion.296 Second occasion of offending 324 KN said that the second occasion occurred about two days after the first occasion, also at Days Road. She had not started school by the time of the second occasion because it occurred in the middle of the day. She was at home with the accused and the tenants.297 325 KN stated that this was the first time that the accused put his penis in her vagina.298 KN agreed with defence counsel’s suggestion that this was a ‘very big deal’ for her and accepted the suggestion she would remember ‘the details of how it happened’. She agreed that she had said in evidence that she was sitting on top of him when he put his penis in her vagina.299 KN disagreed with the suggestion of defence counsel that she told the police on 6 June 2023, two days before the trial commenced, that the accused was on top of her when he put his penis inside her vagina.300 326 A statement of agreed facts tendered as Exhibit P9 includes the following agreed fact at paragraph 21; On 6 June 2023, the complainant told the Police (in relation to the second alleged incident of inappropriate behaviour) that the accused “got up and got on top of me and tried to put 291 T105.36-38. 292 T106.1-6. 293 T106.18-21. 294 T110.20-35. 295 T110.30-35. 296 T111.2-16. 297 T111.17-34. 298 T111.35-38. 299 T112.6-9. 300 T112.10-T113.7. -- 40 of 89 -- [2024] SADC 97 39 his penis inside my vagina. He put his penis in and out of me for about 5 minutes but he got frustrated and got off me.” 327 KN was not given the opportunity to refresh her memory from her written statement of 6 June 2023 or the opportunity under cross-examination or re- examination to explain the apparent inconsistency between her evidence and the prior statement in writing given to the police. 328 KN agreed that she did not tell police that the accused told her that her mother drank his semen. KN said that she did not make it up. 329 KN said in evidence that after the second incident, her father told her that she should drink his semen and that her mother drank his semen. KN agreed it would be shocking to hear her father say that and it would stick in her mind. KN agreed that none of her statements mentioned this incident about drinking semen. She denied making it up in her evidence.301 330 KN said in her evidence that almost all of the offending happened in her father’s various bedrooms. There was one occasion where it happened in another room when her father was painting walls at the Days Road address. KN agreed that the sexual acts happening in another place was rare and it would stick out in her mind. KN agreed that the first time she mentioned that incident was in her evidence. She denied that this was because she was making it up.302 331 KN described in her evidence an incident at Liberty Grove where simultaneous oral sex occurred. KN agreed that she said this happened more than once, but not often. KN agreed it was different and not in the usual pattern of things that would happen. KN agreed it was the sort of thing that would stick out in her mind. KN agreed she had not mentioned this incident in any of her statements to police.303 Pattern of offending 332 KN was questioned about one of the patterns of the acts, when the accused would rub the outside of her vagina, she would have to suck his penis, he would lick her for about a minute and then he would have penile-vaginal intercourse with her. KN stated that it was not all like that. Except for putting his penis in her vagina, he did various things at different times.304 Subsequent occasions of offending (various addresses) Period from Days Road to Essex Street 333 During the period from Days Road to when KN moved out of Essex Street, the alleged sexual abuse would occur at least four to five times per week. During 301 T113.12-34. 302 T114.1-22. 303 T114.23-T115.21. 304 T130.33-T131.9. -- 41 of 89 -- [2024] SADC 97 40 that period, there was a gap in the offending when KN went to Vietnam and when she took a trip for three days to Melbourne with her aunt.305 334 KN was cross-examined about the ambulance incident and her evidence that on that particular occasion, when she slightly pushed her father away, he proceeded to have sex with her anyway. KN responded that she told police on 6 June 2023 that her father had sex with her after she attempted to push him away.306 335 During the period when KN started living at Days Road through to when she moved out of Essex Street, KN said Vince went to Melbourne once or twice. Vince was not in Melbourne every week.307 Vince lived with KN for that whole period.308 336 Before XLN moved to Melbourne permanently, he went with Vince to Melbourne once or twice.309 337 KN gave evidence that the frequency of what would happen stayed the same when they moved into a new house. This was the same when they moved into Liberty Grove.310 338 KN’s father would call her to go into his room when he would do inappropriate things to her. Most of the time, she would go into his room.311 At Essex Street, he would knock on the wall between the adjoining rooms and most of the time she would then go into his room.312 During the period from Days Road to when she moved out of Essex Street, if she ever ignored the accused, he would come to her and make her uncomfortable until she ‘gave in’. He would stare at her and stand there until she came into his room. He would follow her from her room to his room. This would occur at Essex Street and Liberty Grove.313 339 KN agreed that she had said in evidence that on one occasion she had pushed the accused away and an ambulance attended the next day and took him to hospital. She agreed that on that occasion the accused still had sex with her. It was suggested to KN that in her statement of 6 June 2023 she told the police that on that occasion the accused did not have sex with her. KN said that she did tell the police that the accused had sex with her that day.314 340 A statement of agreed facts tendered as Exhibit P9 includes the following agreed fact at paragraph 22; 305 T126-T127. 306 T135.13-T136.8. 307 T101.8-21. 308 T134.23-25. 309 T101.25-32. 310 T128.7-12. 311 T134.3-9. 312 T134.10-16. 313 T134-T135. 314 T135-T136. -- 42 of 89 -- [2024] SADC 97 41 On 6 June 2023 the complainant told the Police that on the occasion when she alleges an ambulance attended the next day, her father did not have sex with her. 341 KN was not given the opportunity to refresh her memory from her statement of 6 June 2023 or the opportunity under cross-examination or re-examination to explain the apparent inconsistency between her evidence and the prior statement in writing given to the police. Complaint to Vince 342 KN was in year 9 or 10 when she made her complaint to Vince. It was 2019 when she was in year 9 and 2020 when she was in year 10. They moved out of Essex Street at the start of 2018. The conversation she had with Vince was about two years after they moved out of Essex Street.315 Even then, Vince was still angry with the accused about his gambling.316 343 It was suggested to KN that before she made the complaint to Vince, he had been ranting and raving that day about the accused’s gambling issue. KN responded that Vince never ranted or raved to her about the accused’s gambling addiction, he just told her that he did not like their dad gambling. She said that Vince would never make a big issue, he would tell her calmly that he was not happy her dad gambled.317 344 KN said she was not sure if she said in her police statement of 22 December 2021 that before she told Vince, he was ranting to her about her father’s gambling addiction.318 After she refreshed her memory from her statement of 22 December 2021, KN agreed that she told police on 22 December 2021 that before she made the complaint to Vince, he was ranting to her about the accused’s gambling. She agreed that what she told the police was correct. By ranting, she meant that Vince would tell her that he was not happy and that the conversation did not go on for long.319 345 KN’s complaint to Vince began in the kitchen and then they moved to Vince’s bedroom. They moved to the bedroom because it was more private. There was no one else at the address at the time and no one else lived there. 320 KN was concerned about privacy because they lived in a unit and there were people next to them.321 346 KN disagreed that Vince told her to keep it a secret. She said that she asked Vince to keep it secret. KN agreed that after she disclosed to Vince what her father 315 T140.10-32. 316 T140.38-T141.2. 317 T141.3-T141.12. 318 T142.6-11. 319 T142.30-T143.11. 320 T148.29-34. 321 T149.7-13. -- 43 of 89 -- [2024] SADC 97 42 had been doing, he suggested she keep a secret for longer because she needed money from the accused.322 347 KN agreed that she did not tell Vince everything. She just told Vince that her dad raped her.323 School friend YL 348 KN gave evidence that her friend YL would sometimes visit at Liberty Grove, but not often.324 YL would visit KN at her home when she was living at Essex Street every day after school.325 349 When living at Essex Street, KN knew the accused would try to rape her, so she brought YL home. YL would walk with KN and stay at KN’s house. KN stated that she purposely brought YL home with her so the accused could not try to do stuff with her after school.326 The sexual acts would still happen as at some point YL would need to go home.327 Complainant’s relationship with the accused 350 The accused married in July 2018 to MN. KN was not close to the accused’s new wife. KN said she has anxiety and it was hard for her to get close to new people. They did not get the chance to bond because they did not live in the same house and KN did not get to communicate with her very much. She met MN in the presence of the accused. KN said that she would not say she did not like MN. KN said she did not have a problem with her at all.328 351 KN did not remember the accused telling her before he remarried that he would give her and Vince $5,000. She did not remember this promise and she did not receive $5,000.329 352 KN lived in rental houses the whole time they lived in Australia. It was difficult moving from house to house.330 She found out that her father purchased a house on Hanson Road with his new wife. It was suggested to KN that she did not like the fact that he had purchased a house. KN responded that she did not say anything about it.331 353 KN agreed that after she moved to St Clair, she would call the accused often and ask him for money and he would come over and give her money. KN agreed that the accused was giving Vince $400 a week to survive on at St Clair. KN agreed 322 T149.15-22. 323 T149.32-35. 324 T150.27-28. 325 T150.24-26. 326 T150.34-38. 327 T151.1-5. 328 T143-T144. 329 T144.6-24. 330 T144-T145. 331 T146.2-10. -- 44 of 89 -- [2024] SADC 97 43 she liked the money she was receiving from the accused. She used it to go out with friends, buy clothes and shoes, and fun things in life.332 354 KN never went back to Essex Street after she moved out. She did not stay the night at Essex Street after she moved out.333 355 KN was not sure if the amount of money the accused had been giving her decreased after the accused remarried in 2018, because the times he gave her money were random. There were occasions before and after the accused was married that he would refuse to give KN money. She disagreed that as time went by, he would say no to her requests for money more often.334 356 KN disagreed with the suggestion that the accused stopped giving her money at some stage before she reported the allegation to the police in May 2021. She did not know if the accused had stopped giving Vince money. She said Vince did not mention that to her.335 357 KN denied the proposition put to her by defence counsel that none of the sexual acts happened. She denied that she was making up the allegations. KN said ‘it’s the truth’.336 Re-examination 358 KN remembers that the St Clair unit was a two-storey unit block and they were on the top floor in the middle unit. They had neighbours on either side of the kitchen area. The shared wall was her bedroom and Vince’s bedroom was in the middle of the unit.337 359 KN did not tell police about the accused trying to rape her in the St Clair address because he would rape her so many times that she could not remember. In her memory, everything was ‘combined into one’ and she tried to forget it, which is why she forgot to put something in her statement.338 360 KN did not tell police about the offending occurring in Vince’s bedroom at the Liberty Grove address because most of the time it would occur in the accused’s bedroom and it was rare for it to occur in Vince’s bedroom.339 361 KN did not tell police about the sex act where she and the accused performed oral sex on each other, where her face was near his penis and his face was near her vagina, because she would often suck his penis and he would lick her vagina. 332 T146.11-31. 333 T146.35-T147.12. 334 T147.13-36. 335 T148.6-18. 336 T151.4-5. 337 T151.7-32. 338 T152.9-16. 339 T152.17-35. -- 45 of 89 -- [2024] SADC 97 44 Therefore she thought that it was already counted because she mentioned it before.340 362 KN explained that she made the mistake about the bed being up against the front door at Liberty Grove because these events happened when she was young and she could not remember exactly what happened. Therefore when she drew the pictures, she could not remember where the bed was.341 KN agreed that the room marked ‘lounge’ on page 15 of Exhibit P6 was in fact her father’s bedroom. She compared that floorplan to the one she drew (Exhibit P3) and agreed it was something of a different shape. She agreed that her drawing of the accused’s bedroom at Liberty Grove was wrong. She had drawn a small rectangle, but the room took the whole space. She accepted that she drew the door in the wrong place. She was not trying to mislead anyone. She did not see the photos of the Liberty Grove address before she drew the diagram for the police.342 363 KN agreed that she told police that her father put his finger in her vagina on the first occasion. She said it was because she remembered that he did not have sex with her that time and he did not need to put his finger inside to ‘prepare her’. KN said that after the time they had sex, when that became routine, he did put his finger inside her.343 364 KN said that she did not tell police about the accused telling her to drink his ejaculate, because she did not want to tell the police at all. She said her family forced her to go to the police and she did not want to. She could not tell her whole story because it was ‘triggering’ to her.344 365 KN said that she did not want to go to the police because at the time she still loved her father and still saw him as a father so she did not want to go to the police.345 366 KN did not tell the police about the incident of oral sex while the accused was painting a room at Days Road because it involved oral sex and she had already told police about oral sex.346 YL – Initial Complaint Witness Examination in chief 367 YL is currently 18 years old. She met KN at school when they attended Woodville Gardens Primary School. YL was in year 6 when they met in 2016. YL completed primary school with KN and then they both went to Woodville High 340 T154.9-20. 341 T155.5-14. 342 T156-T157. 343 T157.23-34. 344 T157.35-T158.11. 345 T158.31-34. 346 T158.35-T159.9. -- 46 of 89 -- [2024] SADC 97 45 School. They are close friends now. They became close friends at the start of year 7.347 368 While at primary school, she would go to the complainant’s house three to four times a week. The complainant lived there with her two brothers and the accused, all of whom YL met.348 369 When KN started high school, she had moved close to Woodville High. YL did not know that address. YL would go there nearly every day. KN lived there with her brother.349 370 YL said that KN spoke to her about the allegations in an IT class when they were in year 9 at Woodville High. When KN told her, YL was really shocked. KN said her dad ‘raped’ her.350 KN did not tell YL about the frequency, but said it would happen when her brother was out of the house. YL did not remember making any inquiries about what KN’s dad did to her. KN told YL it occurred at the house at Woodville Gardens.351 Cross-examination 371 YL said that KN lived with her brother Vince at a unit in St Clair. Before that KN lived at a house in Essex Street.352 372 YL went to the complainant’s house three to four times a week after school. This was during primary school.353 373 YL would also attend at KN’s house at Liberty Grove.354 YL only visited Liberty Grove a few times, which was after school. She did not see the accused there.355 374 YL said that KN told her that the offending would happen when her brother was out of the house and when her brother was in Melbourne.356 Vince (XQN) – Civilian Witness Examination in chief Leith Street 375 Vince was 25 years old at the time of giving evidence.357 347 T160.4-27. 348 T161.2-11. 349 T161.12-25. 350 T162.8-24. 351 T162.30-38. 352 T163.2-16. 353 T163.20-26. 354 T163.30-38. 355 T164.1-9. 356 T164.10-15. 357 T226.4-5. -- 47 of 89 -- [2024] SADC 97 46 376 Vince came to Australia end of December 2014 with his father (the accused) and his sister KN. He first lived together with his sister, father and a relative whose name and relationship he does not recall. They lived in a two-bedroom unit next to Leith Street in Ferryden Park.358 377 Vince thought he was 17 to 18 years old when he first lived at that location.359 He and his father were doing farm work when living in this unit.360 378 Vince said that he would work four to five days per week, waking up at 5:00am, getting picked up around 6:00am, working until 3-4:00pm, and arriving home around 6-7:00pm.361 Vince did not recall if there were any days that he worked in the same place as his father.362 Days Road 379 Vince’s brother XLN arrived in Australia around a month or two after Vince, his sister and father arrived in Australia.363 380 At the Days Road address, both his father and KN shared the same bedroom.364 381 While living at Days Road, Vince did both farm work and worked at a Vietnamese restaurant. He also studied at the Adelaide Secondary School of English. He recalls working on the farms still when he moved in, but he changed to working at the restaurant instead while living at Days Road.365 382 Vince started working at the restaurant around 2015.366 He started at school around February-March 2015. He would go to campus about three to four days per week, starting at around 8-9:00am and finishing around 3-4:00pm, regularly. He either walked or rode his bike there as it was 500-600m away. The course involved intensive English study to allow him to enter the ‘mainstream’ schooling.367 He transferred to Woodville High School after six months, whilst he was living at the Murchison Street address.368 383 At the restaurant he started work around 4-5:00pm and finished around 10:00pm. He would work three to four days per week and cover most of the weekends, when he would start around 8-9:00am and finish at 10:00pm.369 358 T226-T227. 359 T227.33-34. 360 T228.24-28. 361 T228.26-38; T229.1-2. 362 T229.5-10. 363 T229.13-25. 364 T230.21-22. 365 T230-T231. 366 T231.20-22. 367 T231-T232. 368 T232; T237.21-30. 369 T232.19-36. -- 48 of 89 -- [2024] SADC 97 47 384 While at Days Road, Vince’s father also did farm work. It was inconsistent work that depended on the season. The hours depended on the kind of work required and who he was working with. Sometimes his father would work for a couple of months and sometimes he had no work. When the accused was working, it was four to five days a week getting picked up at 6:00am to about 3:00-4:00pm, but the accused woke up earlier because he drove other people around and had his own car.370 385 While living at Days Road, XLN also did farm work. Vince and XLN would be picked up together. Their father would get picked up by someone else. The accused worked at a different farm to Vince and XLN.371 386 Referring to the time they were living at Days Road, Vince said that at some stage XLN commenced work at a sushi restaurant. He worked at a different restaurant to Vince but with similar hours. XLN worked most weekends and when he was studying, would work afternoons. Vince could not recall if XLN was studying during that time.372 387 In the first few months at Days Road, Vince did not recall seeing Mr Loc working. Later the accused would pick Mr Loc up to do the same type of farm work. Vince did not recall whether Mr Loc worked with the accused or not, nor whether Mr Loc was picked up by someone else. Mr Loc started doing farm work while Vince was doing farm work.373 388 When the family lived at Days Road, KN was about 10 years old. She would stay at home for the day. He did not recall KN being at school while at Days Road.374 389 The family lived at Days Road for five to six months before moving to Mansfield Park in 2015.375 Murchison Street 390 Vince gave evidence about the layout of the premises at Murchison Street where the family lived and the sleeping arrangements. The accused and KN shared a bedroom. Vince and XLN shared a bedroom. A Vietnamese woman and her daughter also lived at the Murchison Street premises and slept in the same room.376 370 T233.2-31. 371 T233.32-T234.11. 372 T234.21-37. 373 T235.3-13. 374 T235.15-22. 375 T235.30-35. 376 T235.37-T236.22. -- 49 of 89 -- [2024] SADC 97 48 Vince’s work arrangements while living at Murchison Street 391 Vince transferred to Woodville High from the Adelaide Secondary School of English after the family had moved to Murchison Street.377 392 While living in Murchison Street, Vince worked at a number of different restaurants. In total, he worked at three restaurants. The hours he worked remained the same.378 Woodville High School 393 Vince commenced attending Woodville High School while at the Murchison Street premises. He attended for regular school hours (8.30am-3:00pm, five days each week). He remembered skipping school because he was not coping well with work and study at the same time.379 He said he did not skip school very often when at Murchison Street, but he skipped school more after moving to the premises at Liberty Grove. Accused’s work while at Murchison Street 394 Vince gave evidence that the accused continued seasonal farm work when at Murchison Street. He continued to work early starts and finish in the late afternoon. Sometimes he would not work for one to two weeks or a couple of months. Whether the accused worked depended on various factors including weather, such as rain or when it was too hot. There would be various factors that would impact on the availability of the farm work.380 XLN’s work at Murchison Street 395 Vince said that XLN continued working at the sushi restaurant while living at Murchison Street. XLN did not change jobs until they moved to Essex Street. XLN went to TAFE for a few months to study English and then he may have gone to university to do cyber security. He said that XLN studied English at TAFE for a year. Vince did not remember what XLN’s contact hours were like.381 Mother and daughter tenants 396 He said that the mother and daughter who lived at Murchison Street slept in bedroom 1. He believed that the daughter was a nail technician. He was not able to recall whether the mother worked or if she was doing a similar job. When asked what hours the daughter worked, he said he thought they would ‘pretty much’ work all day, but he did not remember. He did not really pay attention to which day they would work.382 377 T236.38. 378 T237.20. 379 T237.25-30. 380 T238.20-23. 381 T238-T239. 382 T239.17-29. -- 50 of 89 -- [2024] SADC 97 49 KN’s schooling when living at Murchison Street 397 He believed KN had already started attending school by the time they were living at Murchison Street. Vince did not know the name of the school. KN eventually went to Woodville Gardens Primary School but not while they were still at Murchison Street. 398 The family only lived at Murchison Street for a couple of months.383 Liberty Grove 399 In 2016, they moved to Liberty Grove, Woodville Gardens.384 Vince outlined the sleeping arrangements by reference to the house plan shown on Exhibit P7. 400 The accused used the main living room referred to as bedroom 1 on the plan. XLN was in the bedroom numbered 2. Vince and KN were in bedroom 3. A tenant was in the bedroom numbered 4, opposite his bedroom. He said the front door was in the living room which had been repurposed for his father to sleep in.385 The accused’s work arrangements while living at Liberty Grove 401 The accused continued to undertake farm work. The hours and inconsistency of work remained the same while they lived at the Liberty Grove Premises.386 Vince’s school and work arrangements while living at Liberty Grove 402 While at Woodville Gardens, Vince worked at a Vietnamese restaurant, where he remained for two years. He worked much more while living at the Liberty Grove address. He worked more than he studied in comparison to when he lived at the Murchison Road address. He skipped school more when at Liberty Grove for the purpose of attending work. He would finish studying around 3:30-4:00pm, then start his shift at 4:30pm and finish at 10-11:00pm.387 If he was not skipping school, he would work three to four days a week and worked most weekends. On weekends, he would start work between 6:00am and 7:00am and finish at 10:00pm.388 403 He also continued attending Woodville High School while living at the Liberty Grove address.389 404 The family stayed at Liberty Grove for six to seven months. Vince started having issues at school due to skipping it too much; he would be at work in the day rather than going to school.390 383 T240.7-10. 384 T241.1-5. 385 T241.6-29. 386 T242.1-8. 387 T242.9-T243.1. 388 T243.3-13. 389 T245.22-23. 390 T243.19-25. -- 51 of 89 -- [2024] SADC 97 50 405 XLN worked at the sushi restaurant for a long time while he lived at the Liberty Grove premises. Vince was unsure what XLN was studying while living there. XLN started working more while living at the Liberty Grove premises.391 406 Mr Loc, who previously lived with the family at the Days Road address, also lived with the family at Liberty Grove for the entirety of their stay there. Vince understood that Mr Loc was doing farm work while living at Liberty Grove but he was not sure about the exact time Mr Loc would go ‘back and from work’.392 407 KN was still going to the Woodville Gardens Primary school while living at Liberty Grove.393 Use of the front door leading to the accused’s bedroom 408 Vince said that people would enter and exit the Liberty Grove house through the back door. He said that the front door led to an area covered in spiky weeds and unpleasant grass. He said people would not usually walk in that area. He said they all came in the house through the back.394 Essex Street 409 Vince said that they moved to Essex Street roughly around 2016 to 2017. He moved out with KN at the start of 2018 and so he was there for about one year.395 410 He explained by reference to the floor plan of the premises (Exhibit P7) where each of the occupants slept and the location of the beds in each bedroom. The floor plan showed the accused and KN had adjacent rooms and shared an internal wall. The beds in those rooms abutted the common wall between the rooms.396 411 There was another person living at the premises, not as a tenant, but as a ‘temporary stay person’. He ‘kind of’ lived there in the living room for a couple of months. Vince was not sure if that person paid rent.397 412 Around the third or fourth month of staying in Essex Street, Vince stopped working at the third restaurant, where he had spent two years.398 He then went back to doing farm work. There were a couple of days where his father would take them to do farm work and other times other people would pick them up. Sometimes his brother would take them. Vince worked more with his brother during that time than he did with his father.399 391 T243.26-T244.3. 392 T244.20-23. 393 T244.24-37. 394 T244.38-T245.10. 395 T245.24-37. 396 T245.38-T246.27. 397 T246.28-34. 398 T247.9-17. 399 T248.15-25. -- 52 of 89 -- [2024] SADC 97 51 413 Vince transferred to Thebarton Senior College to study year 12 equivalent courses in around 2017. He attended three to four days per week from 7:00am (the drive to the college took two hours) and returned home around 4-5:00pm.400 He remembers working more than he attended at Thebarton Senior College.401 414 KN started attending Woodville High School while at Essex Street.402 The accused’s work arrangements while living at Essex Street 415 The accused was doing farm work for the first couple of months while they lived at Essex Street. He would start from about 6:00am and get home around 6 or 7:00pm. There was a period towards the end of 2017 when the accused would not go to farms. He was not working as much compared to other times. He stayed home more than he worked and most of the time he was out and about. 403 Vince said he did not know where his father was going. The reduction in work occurred in the fourth or fifth month towards the end of the family’s stay in Essex Street. 416 XLN stopped studying completely and continued to do farm work.404 417 Vince and KN moved out of Essex Street at the start of 2018. He said that towards the end of 2017 and start of 2018, he went to Vietnam.405 418 A couple of weeks after returning, he and KN moved out of Essex Street because he did not feel that they were being taken care of. He said a lot of people would knock on doors to ask where their father was and ask about money he owed. On one occasion towards the end of 2017, his father told him he owed a lot of people a lot of money. He remembers it was $48,000. He said the accused asked XLN to lend him money ($5,000) and XLN refused. The accused started yelling, smacking doors, cursing, then he went outside and started screaming.406 419 Vince gave evidence that XLN said that he was ‘done with him’. Vince immediately felt that he did not want to live with the accused any more.407 Move by Vince and KN to the unit at Torrens Road, St Clair 420 Vince and KN moved from Essex Street to an address at Torrens Road in St Clair.408 400 T249.4-23. 401 T249.15-18. 402 T248.35-T249.2. 403 T247.20-29. 404 T249.26-7. 405 T249.33-38. 406 T250.3-21. 407 T249.28-T250.23. 408 T250.37-T251.3. -- 53 of 89 -- [2024] SADC 97 52 421 XLN moved to Melbourne before Vince and KN moved out of Essex Street, and a month before their trip to Vietnam.409 Tenants from previous residence 422 Vince had no contact details for the tenant known as Mr Loc. He did not have contact details for the mother and daughter tenants who had lived with them at Murchison Street.410 423 The last time Vince had contact with his brother XLN was in 2021, when he came to Adelaide for a couple of weeks to visit.411 Initial complaint conversation with KN 424 Vince said the first time KN told him about what their father did, it occurred when he was sitting outside of the living room, in the kitchen area, at the premises at Torrens Road, St Clair.412 KN approached him. The conversation was held using a mix of English and Vietnamese. KN said in English, ‘Can I tell you a secret? Please don’t tell anybody’.413 He responded in Vietnamese, ‘If you say it, just say it, if you don’t want to say it, then don’t’.414 KN said in English, ‘Dad rape [sic] me’.415 He said that the term ‘rape’ was specifically used. KN told him the accused raped her when they were still living at 33 Essex Street.416 425 Vince asked KN in English if the accused penetrated her using his penis. KN then said she could describe everything and tell him everything. He could not recall word for word what came after this part. He recalled that KN mentioned the time he visited his brother in Melbourne for a couple of weeks and if he recalled the accused calling and asking him to return to Adelaide. Vince said that he then recalled the time the accused called him in Melbourne, telling him to come back because he had fallen. He told KN that he recalled the incident and that he had called for an ambulance from Melbourne for the accused. Vince said that KN told him that during that day the accused went to her room and asked for sex. KN told him that she refused and she pushed the accused, causing his back to give out and he could not move.417 426 KN told Vince that the accused had a ‘really small penis’,418 and that she could not feel anything when he was ‘doing it to her’. He said KN was adamant that she did not want Vince to tell anyone about this information.419 409 T251.1-9. 410 T251.10-24. 411 T251.25-30. 412 T254.4-9. 413 T252.1-7. 414 T252.8-T253.2. 415 T253.1-5. 416 T253.5-6. 417 T253.9-T253.25. 418 T253.30. 419 T253.32-33. -- 54 of 89 -- [2024] SADC 97 53 427 Vince gave evidence that KN said her father would knock on her room, on the other side of the bed from his side of the bedroom. Vince stated that at 33 Essex Street, the accused’s and KN’s rooms were connected. First, he would knock to ask her to come over to have sex with him. If she did not respond, he would ‘come into her room and unlock’, ‘using the door keys … in order to have sex with her’.420 428 He said KN told him that there was also a time when the accused had called the school and requested KN to come home, so that he could have sex with her. This was when she was attending Woodville Gardens.421 429 He said besides asking if the accused used his penis, he did not really ask KN further about the details because he found it disgusting, and he did not want to hear the details unless she was comfortable.422 Cross-examination 430 Vince agreed that he was close to his sister. Vince agreed that he travelled to Vietnam with his sister in 2018 and that they stayed with their mother.423 Days Road 431 The Days Road address was the only house they stayed at in the suburb of Croydon Park.424 432 Vince agreed that his evidence was that KN slept in the same bedroom as the accused when they lived at Days Road, Croydon Park.425 He did not tell the police on 16 May 2021 that he and KN slept in the same bedroom when they lived at Days Road. He then refreshed his memory from that statement and said he would have said that to police if it was in his statement.426 He said that sometimes KN slept in the accused’s bedroom and sometimes in his bedroom. He agreed that there was no mention of KN sleeping with their father at Days Road.427 433 Vince did not recall KN attending school when the family were living at the Days Road property. However, he did recall that she went to a school other than Woodville Gardens Primary School. He said he had a recollection it was Kilkenny Primary School, because that rings a bell in his memory.428 He had no recollection of KN attending school at Days Road at all, but he did remember her attending Kilkenny at some stage.429 420 T256.9-17. 421 T256.17-28. 422 T256.33-38. 423 T257.2-7. 424 T258.1-8. 425 T258.15-17. 426 T264.8-17. 427 T268.1-3. 428 T271.4-19. 429 T271.28-30. -- 55 of 89 -- [2024] SADC 97 54 434 Vince gave evidence that he would wake up at 5:00am to get ready for fruit- picking/farm work, leave home by 6:00am, then finish work at the farm around 3- 4:00pm, and then eventually get back home around 6 or 7:00pm. This would constitute a ‘full day’ of working on the farm while he was at the Croydon Park address.430 He would work these hours during the weekend or during the day.431 435 He said the accused did farm work when they lived at Days Road. He could not say whether the accused would work most days when at Days Road because Vince was going to school or work, and when he would return home, the accused would tend to be at home. He did not remember which days the accused went to work or how long he worked.432 436 After refreshing his memory from the statement he gave to police on 6 June 2021, Vince agreed that he told police that when living at Days Road the accused worked most days farming and pruning, and most of the time Mr Loc would work with him. He said he would not have been able to recall exactly when the accused worked because he was studying and working at farms and restaurants. He agreed that the accused worked very often back then. He agreed that the accused worked when he could and there were periods when he worked many days in a row. He said the accused would not work if it was raining, ‘out work’ or any other reason.433 437 Vince said that Mr Loc was living at the Days Road address and that the accused and Mr Loc would work together on the farm. The accused would drive Mr Loc and himself to work.434 Sometimes when the accused was not at work Mr Loc would get picked up by someone else.435 438 He disagreed that when the accused was home Mr Loc would also be at home.436 Vince could not confirm whether Mr Loc would be at home if he was not working.437 Murchison Street 439 Vince said KN did not sleep in his bedroom at all when they lived in the Murchison Street house.438 He said he recalls that they stayed at the Murchison Street address for ‘a couple of months’. He said he could not remember for how long; he said it was not up to a year. It was a couple of months. 439 430 T272.5-19. 431 T272.23-31. 432 T273.1-12. 433 T275-T277. 434 T282.32-T283.4. 435 T283.6-10. 436 T283.15-21. 437 T286.36-T287.6. 438 T268.19-23. 439 T268.24-27. -- 56 of 89 -- [2024] SADC 97 55 440 Vince agreed that the accused worked a lot on farms while living at Murchison Street. If work was available there, he would take it. There were periods when the accused worked many, many days in a row, if work was available.440 441 In relation to the tenants at Murchison Street, Vince was uncertain on whether the daughter was a nail technician or a student because he did not talk to them often.441 He did not recall the mother having a disability. He could not recall seeing anything wrong with her.442 442 Vince said the mother would often leave the house. He would not see either the mother or the daughter until the evening or afternoon, where they would be at home cooking and preparing to go to bed.443 He believed the mother and daughter would usually have both already been home when he arrived back from studying around 5-6:00pm, but he could not say if this occurred every day.444 Liberty Grove 443 Vince agreed that the accused slept on a pull-out bed in the living room when they lived at the Liberty Grove address. There was no door from the kitchen/living area to the room used by the accused as a bedroom.445 444 He said that when people entered the Liberty Grove property, they mainly entered through the back door of the house. He agreed that the front door of the Liberty Grove property could be opened.446 445 At Liberty Grove, the accused was still doing farm work. Mr Loc was also living with them. Mr Loc was either working with the accused or was picked up by someone else, it depended on the day. The same factors impacted the work – rain, heat, off-season.447 446 Vince could not confirm whether the accused worked most days while living at Liberty Grove because Vince was doing his own work at the time as well. Vince did not have his father’s work schedules.448 447 He disagreed that the accused worked most days, all day at the time they lived at the Liberty Grove address. He said there were occasions when he saw the accused at home.449 440 T277-T278. 441 T287.7-17. 442 T287.7-25. 443 T287.34-38. 444 T287.34-T289.11. 445 T269.3-26. 446 T270.1. 447 T278.77-22. 448 T278.23-28. 449 T278.29-31. -- 57 of 89 -- [2024] SADC 97 56 448 When put to him, Vince remembered telling police on 6 June 2021 something ‘along that line’; that the accused worked most days, all day depending on the type of farm/pruning work, the season and other factors.450 He agreed the statement he made to police was accurate. Whenever work was available, the accused would have worked. Vince said he did not have definitive information that he would have worked most days.451 He agreed with defence counsel that his father would work many days in a row if the work was available.452 449 Vince said that the accused also engaged in work driving a contractor to different locations. Sometimes the accused needed to be at home so that he could drive the contractors where they were needed.453 450 He agreed that Mr Loc was a tenant at the Liberty Grove premises when the family lived there. The accused and Mr Loc worked together while at Liberty Grove.454 He could not confirm that Mr Loc would be at home quite often when he was not working. He disagreed that when the accused was not working, Mr Loc would have also been present at home. Vince said that if Mr Loc was not driven to work by the accused, that ‘he would get picked up by someone else’.455 451 Vince said that this situation was the same for him and his older brother. Ultimately, if the accused did not take them to work, they would get picked up by someone else.456 Vince could not say whether Mr Loc would be home often when he was not working. Vince could not say ‘one way or the other’ whether Mr Loc would be home often when the accused was not working.457 452 Vince said that he did not remember tenants other than Mr Loc staying at the Liberty Grove property, even for a short period of time.458 He said that no one else was living at the property besides Mr Loc, himself and the other family members.459 Essex Street 453 He agreed that at the Essex Street property, KN and the accused had their own bedrooms. He could not recall whether there was a handle on the door to the accused’s bedroom.460 454 Vince said that for a period the accused worked for quite a while, but then towards the end of the year there was a period he was not working.461 He disagreed 450 T278.32-T279.16. 451 T279.28-35. 452 T279.36-T280.1. 453 T280.8-12. 454 T283.11-14. 455 T283.18-19. 456 T283.20-21. 457 T287.1-6. 458 T289.21-32. 459 T289.33-34. 460 T270.10.29. 461 T280.17-23. -- 58 of 89 -- [2024] SADC 97 57 with the suggestion that the accused was working a lot when living at Essex Street.462 455 He agreed that in his statement of 6 June 2021 he said something along the lines that his brother and the accused were working a lot on the farming/pruning work when living at Essex Street. He said this was true for a period, but there was a period when the accused stopped work. When the accused had stopped work, Vince did not know what he was doing, where he was going or when he would come back.463 He agreed he had not said in his statement that the accused had reduced the amount of time he worked.464 He said he did not tell police about this because he did not remember it at the time and he did not find it relevant until counsel started asking him about it in court.465 456 Vince said there was a person that slept in the living room of the Essex Street property, which was an open area of the house with no doors.466 457 Vince said that person stayed at the house for a couple of months. He did not move in within the first couple of months of the family moving there, but he started to live there towards the end.467 458 He agreed that the living room area where that person was living was directly outside the accused’s room and KN’s bedroom. He said by reference to Exhibit P7 that it was right next to the kitchen.468 459 The witness was unable to say whether after moving out of the Essex Street address whether there was a mother and daughter who moved into that address. He stated that he did not know if there was anyone else who moved in after he, his brother (XLN) and the complainant left.469 Vince’s movements While at Days Road 460 Vince said that initially he was working at a farm while the family was staying at the Days Road property. While he was working at the farm, he was also studying at the Adelaide Secondary School of English. He said he commenced the classes in February of 2015.470 At this school he would finish about 3:00-4:00pm in the afternoon. The school was not far from his house. He would come straight home from school.471 He did not skip days at this school. In the period that he was 462 T280.38-T281.3. 463 T282.2-7. 464 T281.14-20. 465 T282.15-30. 466 T290.1-10. 467 T290.13-16. 468 T290.20-29. 469 T290.37-38. 470 T283.22-35. 471 T283.30-T284.7. -- 59 of 89 -- [2024] SADC 97 58 not working at the restaurant, he was going to school most days and the farm work was mainly on the weekends.472 461 After Adelaide Secondary School Vince went to Woodville High School. This would have been towards the end of 2015. He would finish school around 3:00pm to 4:00pm. He did not go straight home as he would have been working at the restaurant at this time, which he started in mid-2015.473 462 Vince disagreed that he worked at restaurants for only about a month when he was living at Days Road and then went back to farm work. He said he did not enjoy the outdoor work involved in farming. He stuck with restaurant work for a really long period of time. He disagreed that he did not work in restaurants again until Essex Street.474 Vince’s older brother XLN 463 Vince’s brother was doing farm work while the family was living at the Days Road property. His brother was still working at the farms and stuck around with farm work for ‘way longer’ than Vince did.475 464 Vince thought XLN commenced working at the sushi restaurant when the family moved into the Murchison Street Property. He did not recall XLN working at the sushi restaurant while the family was at the previous Days Road property.476 465 He said XLN stopped working at the sushi restaurant around the time that the family started living at the Essex Street address. He could not provide the exact hours of when his brother was working at the sushi restaurant. He agreed that it was fair to say that XLN was working at the sushi restaurant in the period between Murchison Street and when Vince left the Liberty Grove property.477 466 Vince could not remember if XLN was studying at Days Road.478 Vince could not say what hours XLN might have been studying at Murchison Road and Liberty Grove. At Essex Street, XLN had stopped studying.479 When Vince moved out of the Essex Street property 467 Vince said that to the best of his knowledge, neither he nor KN ever went back to the Essex Street property once they moved out.480 472 T284.18-23. 473 T284.27-37. 474 T285.3-7. 475 T285.20-21. 476 T285.24-26. 477 T285.32-35. 478 T286.6-8. 479 T286.12-25. 480 T291.2-12. -- 60 of 89 -- [2024] SADC 97 59 Observations of interactions between the accused and KN 468 Vince agreed that from his observations from the period the family was living at the Days Road property up until they moved out of the Essex Street property, there were times when KN would not respond to the accused when he called out to her.481 469 He agreed that KN would just ignore the accused and he thought that KN was just being ‘a typical teenager’ when she would not respond.482 470 He disagreed that KN would just walk off.483 He said KN would not respond to the accused until he ‘approached her directly in person to tell her something’.484 Finances 471 Vince conceded that he never saw the accused gamble, but when they lived in Leith Street the accused told him that he was gambling.485 Vince said that the accused also told him that he was gambling while the family were living at the Essex Street premises.486 He concluded from that, that the accused was gambling the entire time they were living together. 472 Vince agreed that when they lived at Essex Street the accused would ask to borrow money from XLN. Vince said the accused never asked to borrow money from him, only XLN.487 473 He agreed that the accused and XLN argued about that. He said it was a ‘one- time event where they had a big argument regarding money’.488 Vince said that it was on that day that he decided to move out with KN.489 Vince said that KN was not present for that argument, but she came out and he told her about it.490 474 He said that he could not remember how he came to know the accused had lost $48,000. When it was suggested that the amount was an unspecified lower amount, he said to his knowledge, it was around $48,000.491 The accused’s marriage 475 Vince gave evidence that he did not remember the exact time when the accused remarried. He became aware of it when he was living at Torrens Road. He 481 T291.13-20. 482 T291.23-31. 483 T292.2-6. 484 T292.2-6. 485 T292.10-12. 486 T292.12-16. 487 T292.17-19. 488 T292.29. 489 T292.30-31. 490 T292.37-38. 491 T293.4-16. -- 61 of 89 -- [2024] SADC 97 60 did not recall going to the wedding. He said that he had met MN, the accused’s then wife.492 476 He said that there were some occasions when he and KN would go to the accused’s house to have dinner once they moved out of the Essex Street premises.493 He disagreed strongly that KN disliked the accused’s new wife. He said KN did not say anything bad about her. He said KN found her to be a really nice person to talk to.494 He said that to say that KN disliked the new wife was ‘nowhere near the truth’.495 Elaboration of complaint by KN to Vince 477 Vince agreed that KN told him that the accused had raped her at 33 Essex Street. He denied that he had asked her exactly where the abuse had started. He denied that she had told him that the abuse had begun at 33 Essex Street. He said that KN told him that ‘Dad raped me at 33 Essex Street’, she did not say it started there.496 478 Vince agreed that he told the police when he made his first statement in May 2021 that he had asked KN when it started and KN said, ‘When we were living together at 33 Essex Street’. He told the police that because it was what he recalled from the best of his memory at the time.497 479 He denied suggesting to KN that he told her to keep the allegations a secret for longer. He said his sister had asked him to do that, not the other way around.498 480 He denied telling KN to keep it a secret for longer so more money could be obtained from their father.499 He said that was a ‘laughable’ suggestion.500 481 He agreed that the accused transferred money to him to take care of his sister. He said it was $400 a fortnight, not $400 a week. He agreed that the money reduced after the accused remarried, but KN started to receive her own payments.501 Additional evidence about the accused’s work arrangements 482 Vince explained what he meant when he referred to the accused working ‘many days in a row’. He said it varied from two, three weeks straight or it could 492 T293.17-32. 493 T294.1-5. 494 T294.14-17. 495 T294.14-17. 496 T295.15-27. 497 T296.20-38. 498 T297.1-5. 499 T297.6-8. 500 T297.13. 501 T297.27-32. -- 62 of 89 -- [2024] SADC 97 61 mean one week when he worked constantly, including weekends. He agreed this meant any time up to about a fortnight continuously.502 483 When Vince came home from school or work there were occasions when the accused and KN would be home alone, with no other person present. He could not say how frequently that occurred.503 Vince’s English language skills 484 During the process of providing statements to police, including being shown his statement, being invited to check it, make corrections and alterations and signing it, at no point was an interpreter available to Vince.504 At the time of giving his first statement, Vince’s English skills were the same as when he gave evidence in court.505 485 The witness stated that a ‘considerable amount of time’ or ‘a years [sic] almost’ had passed between the time his sister told him about the alleged sexual abuse and when the witness made his first statement to police.506 Re-examination 486 In re-examination Vince said in his second statement to police dated 26 August 2021, was the first time that he was asked to recall in more detail his and other family members’ work commitments while at the various residences.507 He said that he was asked to recall the sleeping arrangements of the family for the first time in the second statement.508 Detective Brevet Sergeant Michael Peter Wilckens Examination in chief 487 Detective Brevet Sergeant Michael Wilckens gave evidence as the investigating officer in this matter. On 16 August 2021, Detective Wilckens sought the driver’s licence record address details of the accused from the Department of Transport and Infrastructure. That document from the Registrar of Motor Vehicles was tendered as Exhibit P8. His understanding was that you are given 14 days to make a formal request to change your address with the Registrar of Motor Vehicles when you change your residential address. On the document, ‘date from’ indicates the date the application was made or received by the Registrar.509 488 Detective Wilckens said he made attempts to contact the accused’s brother ‘Uncle Vu’. On 6 June 2021, he contacted Uncle Vu and on 6 September 2021 he 502 T298.9-20. 503 T298.21-29. 504 T298-T299. 505 T299.10-16. 506 T299.27-T300.4. 507 T301.11-18. 508 T301.19-22. 509 T303-T304. -- 63 of 89 -- [2024] SADC 97 62 attended his home. He asked Uncle Vu if he wished to make a statement. Uncle Vu declined to make a statement. 489 Detective Wilckens contacted XLN and on 14 July 2021 at about 10:20am spoke to him about providing a statement to police. XLN initially said he did not want to be involved.510 490 Detective Wilckens made subsequent attempts to contact XLN without success.511 491 Detective Wilckens identified Exhibit P4 as photographs of the Days Road address which he accessed from realestate.com on 16 August 2021.512 The photos were taken in August 2017. 492 Detective Wilckens identified Exhibit P5 as photographs of the Murchison Street address accessed from domain.com on 16 August 2021. The photos were taken August 2009.513 493 Detective Wilckens identified Exhibit P6 as photographs of the Liberty Grove address which he accessed from realestate.com on 13 September 2021. The photos were taken July 2017.514 Cross-examination 494 Detective Wilckens said that he did not make inquiries about the identity of the tenant at the Days Road premises. He said KN and Vince were not able to recall the names of the tenants at subsequent premises or provide forwarding information. He did not make further inquiries into the identity of those unnamed tenants.515 Re-examination 495 Detective Wilckens got information about the tenants at other addresses from KN and Vince. 496 In relation to attempts to find the tenants, he searched the Certificate of Title to see who owned the premises, he did a search of the organisation that holds the security bonds when someone enters into a residential tenancy lease, and he also spoke to the owners at all the addresses. Vince and KN were sources of information in relation to who the tenants were and what they could recall at each house. The owners of the houses were also spoken to, to see if they would remember who lived 510 T306.8-19. 511 T306.19-33. 512 T307.2-13. 513 T307.18-28. 514 T307.29-T308.3. 515 T308.12-T309.7. -- 64 of 89 -- [2024] SADC 97 63 in their houses at particular times. They were not able to recall the names of the tenants.516 Consideration Assessment of the Evidence of the Complainant – KN 497 KN gave evidence over an extended period including a substantial period of cross-examination. Her evidence covered a wide range of topics and incidents which occurred over a period of several years. 498 KN remained composed and calm for the most part during her evidence, including under cross-examination. She remained firm in her rejection of some of the propositions put to her by defence counsel but did not become histrionic or otherwise react inappropriately. KN became emotional and upset at several points during her evidence. On those occasions, her demeanour was not inappropriate having regard to the subject matter which was under consideration. Her responses appeared to be sincere and a genuine expression of distress. She appeared to try to contain her emotions. KN did not demonstrate any hostility towards the accused. Her evidence was for the most part delivered in a matter-of-fact manner. 499 When assessing her evidence, I have considered that at the time of the alleged conduct constituting the offence, KN was only about nine to 13 years of age and was 18 years of age when she gave evidence. I have also considered the sensitive and embarrassing nature of the topics upon which she gave evidence and was cross-examined involving alleged sexual contact. 500 I considered KN to be an impressive witness. 501 KN was questioned about the details of the work and study arrangements and schedules of other persons, extending over a three to four year period when she was aged between nine and about 13 years. This included family members and tenants. She was asked about the details of living arrangements and the layout of four premises in which she lived, sometimes briefly, over the same period. Her evidence about the working arrangements of her father, brothers and others who lived with them from time to time lacked particularity. However, I was left with the clear impression she was doing her best to recall the details and was not obfuscating. 502 Counsel for the accused made extensive submissions about the credibility and reliability of the complainant’s evidence. Ultimately, it was submitted that the infirmities in the complainant’s evidence were such that her evidence should not be accepted beyond reasonable doubt in proof of the charge. I will now turn to address the central submissions of defence counsel. 516 T309-T311. -- 65 of 89 -- [2024] SADC 97 64 Opportunity to offend and the frequency and regularity of the alleged offending 503 Counsel for the accused submitted that on the evidence of the complainant, the alleged unlawful sexual acts occurred four to five times a week for the period of the offending, for the most part after school, and that there were no significant gaps in the conduct other than when KN travelled interstate to visit an aunt, or to Vietnam to visit her mother. 504 It was submitted by defence that ‘the evidence does limit the opportunity for the accused to be present with the complainant and in a position to offend against her with that regularity in that time frame’. 505 On the other hand, counsel for the accused acknowledged that the evidence is not that the offending occurred only after school. 506 Despite that concession, defence counsel submitted that the court should ‘primarily focus’ on the time after school when considering evidence about opportunity to offend. 507 Counsel for the accused identified several factors on the evidence which pose obstacles to the prosecution establishing the opportunity for the accused to offend after school with the degree of frequency and regularity alleged by the complainant. 508 I propose to examine the factors that defence suggests limit the opportunity for offending as alleged. Before doing so, there are several issues which ought to be identified which bear upon the consideration of those factors and the issue of opportunity generally. 509 Firstly, to prove the charge, the prosecution is required to establish beyond reasonable doubt at least two alleged acts of unlawful sexual conduct by the defendant against the complainant over the relevant period. It is not required to prove that the unlawful sexual conduct occurred four to five times a week, excluding times that the accused and the complainant were away. The challenge to the complainant’s evidence that the sexual abuse occurred with that frequency is therefore relevant to her credibility and reliability. That much is acknowledged by the defence. In essence, if the court accepts that the complainant’s evidence about the regularity and frequency is wrong, does that give rise to a reasonable possibility (when considered on its own or in conjunction with other factors) that her evidence lacks credibility and/or reliability? 510 In other words, if I do not accept that the sexual abuse occurred four to five times per week over the relevant period of several years, must I conclude as a reasonable possibility that the complainant has fabricated the allegation that the sexual abuse occurred at all, or that her evidence is so unreliable that I cannot be satisfied that the alleged conduct occurred at all? -- 66 of 89 -- [2024] SADC 97 65 511 Secondly, the defence submits that the complainant’s evidence is that although the alleged offending occurred not only after school, the court’s primary focus should be on this time when considering evidence about opportunity. That submission acknowledges that the complainant’s evidence was that the alleged offending occurred after school. However, KN also said that when she was on school holidays it would occur during the day, in the morning, around lunchtime and before her brothers got home. She also said it would occur on weekends and in the evening, including at bedtime and during the night. Importantly she said that at Days Road sometimes the incidents occurred at night. She said the incidents also occurred around bedtime when everyone was in their room and she ‘is sleeping’. 512 In effect, the defence submission. while acknowledging opportunity for offending other than after school, invites the court to all but disregard that evidence when considering opportunity. 513 The evidence therefore discloses a wide range of opportunity for the alleged offences to have occurred at times other than after school. 514 The complainant’s memory about the frequency of the acts of sexual abuse did not vary between the various premises where she lived with the accused. 515 The submissions of defence counsel about the opportunity to offend must be assessed by consideration of the evidence of opportunity to offend generally, and not just after school. 516 Finally, there is inherently a risk of detection with all offending and perhaps more so for sexual offending within a family. When considering the effect of the risk of detection on the opportunity to offend, the issue is what risk is a particular offender prepared to take. 517 An offender always takes the risk that the victim might disclose the behaviour to others. This may be a risk which the offender might consider he can manage by grooming or otherwise manipulating the victim, or simply by threats. Once the risk of disclosure is accepted by the perpetrator, it is difficult to assess the degree of risk an individual is prepared to accept when he continues to offend sexually. Common experience shows that sexual offenders will take real risks in pursuing their sexual gratification. 518 The evaluation of the risk in a particular case is primarily an objective assessment. Whether the accused has accepted that risk is a subjective assessment. The suggested limiting factor of the accused’s work arrangements 519 It was submitted that the evidence is clear that the accused; • Worked throughout the period; -- 67 of 89 -- [2024] SADC 97 66 • His work involved departing the home between 5:00am to 6:00am and returning between 5:00am and 6:00pm; • Although there were days off because of rain or no work he worked very often and many days in a row; • The work arrangements remained similar at all the places of residence, although according to Vince, when living at Essex Street, there was a period that the accused would not work, but was in any event not at home during that time. 520 Defence counsel suggests that the accused’s work commitments left limited opportunity to offend after school as the accused would have been at work. Defence submitted that this, coupled with the complainant’s account that there were no gaps in the offending, while not precluding the opportunity to offend, does not sit well with the complainant’s evidence. 521 The evidence does establish that the accused worked as a farm hand frequently for long hours during the day, returning home in the late afternoon or early evening. The evidence therefore indicates that when working, the accused would not be at home during what one might regard as a time described as ‘after school’ when the alleged unlawful sexual acts were said to have often occurred. 522 The evidence of the accused’s absence while at work during the time described as ‘after school’ in the context of opportunity to offend should be considered in the context of other evidence relating to the accused’s work arrangements. 523 The work was seasonal and there were times between seasons when the accused did not work at all. There were times when seasonal work was available, but he was unable to work due to inclement weather. There is the uncontradicted evidence of Vince that for a time, while the family lived at Essex Street, the accused was not engaged in farm work, although it appears that he would often be absent from home during that time. 524 It is not apparent from the evidence how much time the accused was at work relative to the times that he was not at work. However, it must be acknowledged that the times the accused worked were significant and would have affected the opportunity to offend against KN at times that might be regarded as ‘after school’. 525 However, the irregular nature of the accused’s work did leave substantial time when the accused was not working and when there was opportunity to offend against KN after school. This, of course, is in addition to the opportunity for the accused to offend against KN at bedtime when others were getting ready for bed or when KN was sleeping. There was also a period of time when the accused was doing delivery work and would sometimes need to be at home. -- 68 of 89 -- [2024] SADC 97 67 The suggested limiting factor of Vince’s school and work commitments 526 Counsel for the defence submitted that a further factor limiting the opportunity to offend was the school and working arrangements of the complainant’s brother Vince, who was likely to be present at the times of the alleged offending after school. It was said that Vince was involved in farm work initially and then school when he was living at Days Road. It was said he did not begin working in restaurants until mid-2015. This was described as a ‘lengthy period’. 527 The evidence by way of an agreed fact shows that the accused, KN, Vince and the older brother XLN lived at Days Road from 6 February 2015 to 6 August 2015, a period of only eight months. During that period, Vince was engaged in farm work initially but then began working in a restaurant in mid-2015 while attending school. The evidence was that once he had commenced working in the restaurant he would go to work straight after school. He would then return home after work in the late evening. Vince would also work weekends. 528 The evidence also shows that Vince continued to work in restaurants after school during the relevant period, other than a short time when he resumed farm work. His evidence was that he had a strong preference to work in restaurants and disliked working outdoors in the weather. 529 The implication that the opportunity for the accused to have offended against KN was limited by the presence of Vince during the relevant period at the family home is not in my view borne out by the evidence. 530 The evidence discloses that Vince was, for the most part, at work and absent from the family home when the complainant returned home after school for most of the relevant period. I therefore do not accept that the presence of Vince after school was a factor in limiting the opportunity to offend. 531 The submission also tends to ignore as previously indicated, the other opportunities that did exist for the accused to offend against KN when Vince was present at the family home, including at bedtime or when the complainant was asleep. 532 There is another aspect to the defence submission that needs to be addressed. 533 The suggestion that the presence of Vince at the family home limited the opportunity for the accused to offend to the extent alleged by the complainant is predicated on the view that his presence would have posed a risk of detection that the accused would not be prepared to take. 534 However, the evidence is that the alleged unlawful sexual acts occurred in the privacy of a bedroom, including in some instances a bedroom shared by the accused and the complainant. As KN and the accused often shared a bedroom, it was not uncommon or unusual for them to be in the bedroom together. The -- 69 of 89 -- [2024] SADC 97 68 evidence indicates that there were, for the most part, locks on the bedroom door. I note that in the case of the premises at Liberty Grove, the accused used a lounge room as his bedroom where there was no door. I will address this issue later. 535 Furthermore, I consider it unlikely that other occupants of the premises, including family members, would enter one another’s bedrooms without knocking or otherwise announcing their intentions and awaiting a response to enter. 536 I consider that the occasions upon which Vince may have been present, either after school or at other times at which the unlawful sexual acts are alleged to have occurred, would not have posed a serious risk of detection to the accused and thereby limited the opportunity to offend. 537 However, the photographs and floorplan of those premises (Exhibit P6), show that the lounge room used as a bedroom is separated from the adjacent rooms by a short hallway. The short hallway leads to another hallway from where other rooms including the kitchen, toilet and bedrooms can be accessed. The plan shows that all those rooms have doors. Importantly, it is apparent from the floorplan that the line of sight from outside the lounge/bedroom significantly reduces the ability to see any activity in the room. I note that the uncontested evidence is that the bed in that room was against the wall in the corner furthest from, and diagonally across, from the hallway entrance. In that position the bed was not in view until the room was entered. As I have already indicated, I consider it unlikely that other occupants of the house including family members would enter one another’s bedrooms without knocking or otherwise announcing their intentions and awaiting response to enter. 538 I do not consider that the layout of the house at Liberty Grove and the fact that the room used by the accused and where the alleged acts occurred rendered it inherently unlikely that the accused committed the alleged unlawful sexual acts because of an increased risk of detection. The suggested limiting factor of XLN’s study and work commitments 539 Counsel for the defence acknowledged that the evidence relating to the study and work arrangements for XLN were not precise enough for the court to form any conclusions about his presence. 540 To the extent that there was evidence about the study and work arrangements for XLN it tends to suggest that he too, like Vince, worked long hours and was engaged in study. His work patterns and absences from the family home on account of work were similar to the accused when they were both engaged in farm work. Significantly, at times, XLN, like his brother Vince, worked in restaurants. As such, XLN was often absent in the evening at times when KN was home and the accused was likely to be at home, having finished work or not having had worked. 541 I do not consider that the study and work arrangements for XLN would have had a substantial effect on the opportunity for the accused to have committed -- 70 of 89 -- [2024] SADC 97 69 unlawful sexual acts against KN noting that he was very often not present. Furthermore, I do not consider that when he was present this would have posed a serious risk of detection to the accused and thereby limited the opportunity to offend. After school visits by KN’s friend YL 542 Counsel for the defence suggested that the frequent after school visits at the family home at Essex Street by KN’s school friend YL limited the opportunity for offending. As counsel for the defence noted, the complainant’s evidence was that she would deliberately arrange for YL to visit after school as a protective measure against the sexual conduct of the accused. 543 I accept that the presence of YL would have limited the opportunity for the accused to have committed the offences at times described as ‘after school’. 544 The evidence discloses that YL attended the Essex Street premises after school with KN frequently and the former premises at Liberty Grove infrequently. 545 The evidence is that the family moved into the Essex Street property in about January 2017. KN and Vince moved out of the property after returning from a three-week visit to Vietnam in early February 2018. The after school visits by YL therefore occurred during school terms during 2017 when she and KN were at Woodville High School. 546 While this is a significant period during which YL visited, it is not clear how long she remained at KN’s house and therefore the extent of the limited opportunity for the accused to offend. However, KN said in evidence that the sexual acts occurred because YL had to leave to go home.517 547 It does not address the issue of opportunity for the alleged offences to have occurred at bedtime or when KN was sleeping. In this context, it must be noted that the evidence of the alleged offending at Essex Street involved the accused summoning KN to his bedroom when she was in her bedroom by knocking on the shared wall between their rooms. The evidence suggests that the alleged unlawful sexual acts at Essex Street often occurred during a time other than after school, when YL may not have been present. The suggested limiting factor of the presence of tenants 548 Counsel for the defence in his submissions suggested that the presence of tenants at various premises where the accused and KN lived would have posed an extreme risk for the accused to offend in the manner described by the complainant. It was submitted that as a matter of common experience, it is one thing to offend within the confines of the family home where there are predictable and familiar 517 T151.1-3. -- 71 of 89 -- [2024] SADC 97 70 routines, and quite another with the complexity of introducing tenants into the picture. 549 Counsel for the defence identified the presence of tenants at various properties including Mr Loc who lived with the family at the Days Road and the Liberty Grove premises, and the mother and daughter living in the premises at Murchison Street. 550 I accept that the presence of others at the premises, including but not limited to tenants, potentially increases the risk of detection and may thereby operate as a limit on the opportunity to commit offences of the kind alleged by the complainant. 551 I repeat the observations I have made previously about the risk of detection to the accused. Those observations relate to the circumstances in which the alleged offences were said to have occurred; in the privacy of a bedroom and one often shared by the accused and the complainant, the fact the bedrooms were generally fitted with locks, and the unlikelihood that another occupant would enter another occupant’s bedroom without warning or acknowledgment that it is appropriate to enter. It was not unusual for KN and the accused to be in the bedroom. The perpetrator would likely have taken steps on each occasion to reduce the risk of detection. It should also be acknowledged that offenders will almost always face the risk of detection and it is difficult to assess the degree of risk a sexual offender is prepared to take to satisfy their prurient interest and thereby the effect on the opportunity to offend. 552 In this case, I do not consider that the risk of detection by tenants or any other occupants of the house was so great in the circumstances in which the offences were allegedly committed as to preclude the offending as a reasonable possibility. 553 The evidence suggests that the tenants led quite separate lives to the accused and his family. The evidence indicates that the tenants were not well known to KN and Vince and their interactions were not deep. In those circumstances, it is difficult to conceive that the tenants would be in a position to observe the alleged sexual conduct between the accused and KN in his bedroom either after school, or during the day when the accused was not working, and when KN was on school holidays, during bedtime or while KN was sleeping. 554 Similarly, I do not consider that there was a significant risk to the accused of detection of the alleged conduct occurring at Essex Street by the man who slept on the lounge room floor outside the accused and KN’s bedroom for about two months. The alleged offending at Essex Street occurred in the confines of the accused’s bedroom and there is no suggestion that the complainant protested or gave voice to her situation. The evidence was that she would occasionally try to ignore the accused but was otherwise reluctantly compliant. -- 72 of 89 -- [2024] SADC 97 71 Conclusions about the opportunity for the offences to have occurred with the frequency and regularity alleged by the complainant 555 The evidence of the complainant did indicate that the alleged offending occurred four to five times a week during the relevant period, other than gaps when she or the accused were away. 556 I accept that on a literal view of the evidence, it is very unlikely that there was adequate opportunity for the offending to have occurred at that frequency and with such regularity for the entire period. It is unlikely that the opportunities would have presented themselves in such a consistent and sustained way over several years. 557 There is good reason in my view not to adopt a literal view of the evidence about frequency and regularity. The alleged offending occurred while the complainant was still very young and was recalled in evidence some years later when the complainant, although an adult, was still quite young. Our own experience tells us that the recollections of events that occurred during childhood can be distorted, particularly in relation to matters of timing, including frequency and sequence. What appears as a childhood memory to be a frequent and regular event may often have been more sporadic or a less regular occurrence. The traumatic and distressing nature of the conduct and its impact would in my view likely affect a child’s perception or memory of frequency and regularity. 558 In my view, the complainant’s evidence about the frequency and regularity of the alleged conduct means nothing more than it occurred frequently and regularly during the relevant period, including possibly on some occasions for four to five times a week but at times less regular or frequent. 559 There was, in my view, adequate opportunity for the alleged offending to have occurred frequently and regularly over the period, including in circumstances where the accused worked long hours and there were other occupants of the premises including family members and tenants present. 560 Accordingly, I do not consider that the criticisms made of the complainant’s evidence about the frequency and regularity of the alleged offending in the context of opportunity undermine the complainant’s credibility or reliability as to the alleged conduct itself. Apparent inconsistencies in the complainant’s accounts which the defence contends undermine her credibility and reliability Timing of the first alleged unlawful sexual act 561 In his closing address, counsel for the defence highlighted the complainant’s evidence was that the first alleged unlawful sexual act by the accused against her occurred in the house at 49 Days Road prior to her commencing school. The complainant said that it occurred in December and during the holidays. Counsel for the defence said that the objective evidence was that she arrived in Australia -- 73 of 89 -- [2024] SADC 97 72 on 12 December 2014 (Exhibit P1, point 5) and was enrolled in school from 28 January 2015 [sic] (Exhibit P9, point 1 establishes she was enrolled on 27 January 2015 at Pennington Primary School), prior to the family renting the Days Road house on 6 February 2015 (Exhibit P9, point 14).518 Hence, defence counsel submitted that the evidence establishes that KN could not have been residing at Days Road, where the first incident is alleged to have occurred, prior to her starting school.519 562 It was submitted that the inconsistency was a troubling piece of evidence, especially when considered in the light of KN’s reliance on her memory about the timing of the incident associated with being at home all day on the computer and ‘chilling’. It was said that the discrepancy is something that should cause real concerns about her recollection of that incident. 563 I do not accept the submission that the inconsistency in her evidence ought to give rise to serious concerns or doubts about the fact that such an incident occurred at all. 564 The complainant said the incident occurred in the bedroom she shared with her father at the Days Road property. She describes sitting at the computer desk right before something happened.520 565 In relation to the timing, KN said that she could not remember exactly, but that it was around 2014 to 2015.521 When asked, she said that she was not yet going to school because it was December school holidays.522 566 It is apparent from her evidence that her memory about the timing is not clear. Her broad recollection is that it was either in 2014 or 2015. KN later gave evidence that she was not yet in school because it was school holidays. That evidence is consistent with her evidence that the incident may have occurred in 2015 or at least the early part of that year.523 567 In any event, there appears to be an element of reconstruction in her evidence in relation to the timing of the first incident about details including on her not being at school on that occasion, but on the computer at home at Days Road ‘chilling’. 568 KN’s evidence that she was not yet at school is plainly inconsistent with her evidence that the first incident occurred when living at the Days Road property about which she was unequivocal. However, she was giving evidence about this incident in 2023, some eight years after the alleged incident occurred, having 518 T350. 519 T350. 520 T20. 521 T20. 522 T20. 523 T20. -- 74 of 89 -- [2024] SADC 97 73 conceded an inexact memory about the time of year and relying on a reconstruction of the offence to recall the time. 569 There may be a number of reasons the complainant was not at school on that occasion, for example, it may not have been a school day. 570 Having regard to all those factors, I consider that the inconsistency identified by defence counsel is no more than an honest mistake that does not affect the credibility and reliability of the complainant’s evidence about the incident itself. 571 The same criticism was made in relation to the complainant’s evidence about the second alleged unlawful sexual act that occurred two days after the first. I reject that submission for the same reasons. Inconsistency about digital/vaginal penetration occurring as part of the first alleged unlawful sexual act 572 Counsel for the defence identified an inconsistency between the complainant’s evidence at trial and her statement to the police about whether there was digital penetration of her vagina during the first alleged unlawful sexual act. In her evidence, KN said that the accused had rubbed the outside of her vagina.524 It was established in cross-examination that in her statement to the police, she had said that during the first alleged unlawful sexual act, the accused had put his fingers in her vagina and had moved them in and out.525 573 It was submitted that the inconsistency was something that should cause real concerns about her recollection of that incident. 574 Counsel for the defence submitted that on one view of the evidence, there is some kind of reconstruction involved in the complainant’s evidence which he submits is also problematic. The suggestion of reconstruction arises because the complainant says that the accused would place his fingers in her vagina every time they had sexual intercourse to check that she was ready to have sex. The complainant concludes that because there was no sexual intercourse on the first occasion, there was no need for him to place his finger inside her vagina and therefore it did not occur.526 It was submitted that the explanation does not provide the reason why she knows now that the accused did not put his finger in her vagina. 575 I do not accept that the inconsistency between KN’s evidence and her statement to the police undermines her credibility and reliability about whether there was an unlawful sexual act on this occasion involving the accused touching the complainant on the outside of her vagina. 576 In the context of alleged offending that occurred commencing about eight years prior to the complainant giving evidence and continuing regularly and 524 T24. 525 T110. 526 T157. -- 75 of 89 -- [2024] SADC 97 74 frequently over several years, it is unrealistic to expect that the complainant would accurately recall all the details of each occasion. Although this was the first alleged incident of an unlawful sexual act, in my view it is understandable that the complainant, then aged only nine years, might not accurately recall whether the touching of vagina involved inserting fingers into the vagina to some degree, given the time that had elapsed and the frequency of the same or very similar conduct over several years. 577 I do not accept that the complainant’s explanation which relies upon her memory of the circumstances of subsequent digital penetration undermines her credibility or reliability. On the complainant’s account the unlawful sexual acts occurred over many years and involved multiple sexual acts over the entire period. Some of the alleged sexual acts were repeated more than other acts. It is reasonable to expect that a young person unfamiliar with sexual experiences in the circumstances in which she alleged sex abuse occurred may not have an entirely clear or accurate recollection about when specific acts occurred or the sequence in which certain acts first occurred. There is in these circumstances a tendency for memory to blur. Inconsistency about the position in which the accused first engaged in penile/vaginal intercourse with the complainant 578 Counsel for the defence identified an inconsistency between the account given by the complainant in evidence and her statement to the police, concerning the first occasion in which the accused engaged in penile/vaginal intercourse with her. 579 In evidence, the complainant said that she recalled that on this occasion she was on top of the accused. KN described that she was told to ‘ride him’, move up and down, ‘jump on it’ and ‘bounce on it’.527 580 The complainant agreed with the suggestion of defence counsel that the first occasion of penile/vaginal intercourse would have been a ‘very big deal’ for her. She accepted that she would remember the details of how that happened.528 581 However, in a statement given to the police on 6 June 2023 in the presence of the prosecutor, two days before the trial, KN said that in relation to the second alleged incident of inappropriate behaviour (the first occasion of penile/vaginal intercourse), the accused got on top of her and tried to put his penis inside her vagina. In that statement, she said that he put his penis in and out of her for about five minutes but got frustrated and got off her (Exhibit P9, point 21). 582 KN denied having said that in her statement to the police and maintained in her evidence that she was sitting on top of the accused.529 It was submitted that the 527 T33.15-19. 528 T111.35-38; T112.1-5. 529 T112.38-T113.7. -- 76 of 89 -- [2024] SADC 97 75 court knows the fact she said that occurred, because there is an agreed fact to that effect. 583 Counsel for the defence submitted that this was a significant issue because not only was KN unwilling to accept that she had made that statement, which affects both her credibility and her reliability, but that it was at odds with what she said would usually happen, namely, that most of the time the accused was on top of her during sexual intercourse. 584 In my view, KN may have been wrong about the position in which the accused first engaged in sexual intercourse with her. Despite her confidence in remembering the details of the first occasion, I consider it not at all surprising that she could make a mistake about whether the accused was on top of her or she on top of him, or perhaps whether the act occurred in both positions. On her evidence, as I have noted, the accused engaged in regular and frequent unlawful sexual acts, most of which involved penile/vaginal sexual intercourse. The complainant could not recall whether the occasion about which she gave evidence was the only occasion when she was on top.530 585 Having regard to the age of the complainant at the time, the considerable effluxion of time and the regularity and frequency of sexual intercourse, it is in my view entirely possible that the complainant was simply wrong about whether it was on this first occasion that she was on top of the accused. While such an incident might be memorable, particularly closer to the event, there is of course the opportunity for memory to fade about the sequence of the incidents and their details. 586 More troubling perhaps, is that it appears on the evidence that the complainant has given two different versions about the details of this first incident of sexual intercourse within two days. 587 The apparent change in the account was not explained by KN because she was given no opportunity to reconsider her evidence or to provide an explanation for the change. 588 The complainant was not shown her statement and given the opportunity to reconsider her denial or to offer an explanation for the inconsistency. She could not, from the context in which the asserted inconsistency was made, explain the statement. 589 Instead, the prosecution agreed that there was an inconsistency and in so doing, deprived the complainant of the opportunity to recant and/or explain. 530 T48. -- 77 of 89 -- [2024] SADC 97 76 590 In those circumstances, I am reluctant to accept that the complainant’s denial about having made the statement two days earlier reflects on her credibility or reliability. 591 In considering this issue overall, I am not satisfied that the inconsistency undermines the otherwise credible and reliable evidence given by the complainant. Evidence of the complainant omitted from police statements 592 Counsel for the defence identified that KN had said in evidence that the accused had told her that she should drink his semen as her mother had done because ‘it gives you beautiful skin’.531 The complainant accepted that she had not included that allegation in her statements to the police, including the statement made two days before the trial. 593 Counsel for the defence submitted that given the nature of the allegation, it is something that would not sit well with a truthful account. 594 The explanation offered by KN for this omission to police was that she did not want to go to the police initially because it was triggering. She also explained that she did not want to go to the police initially because at the time, she still loved her father and saw him as her father.532 595 I am not persuaded that the omission of the accused’s comment about drinking his semen undermines the credibility and reliability of the complainant’s evidence. 596 KN provided an explanation as to why she did not initially refer to that specific allegation. Furthermore, her statements to the police, including the statement just prior to trial, cover a significant period of time dating back about eight years involving incidents at multiple premises with a high degree of regularity and frequency. It cannot be expected that a witness, especially a child witness, would deal with every incident, every detail or everything said by the accused. One would expect substantial omissions. 597 Counsel for the defence referred to the omission by the complainant to include in any police statement the allegation made in evidence that the accused caused her to engage in fellatio upon him while he painted the tenant’s room at Days Road. It was submitted that this unlawful sexual act occurred outside the pattern of usual alleged offending which took place in the father’s bedroom and that therefore this incident should have stood out and by implication, therefore, should have been included in the complainant’s statement. 531 T36.17-24. 532 T158.31-34. -- 78 of 89 -- [2024] SADC 97 77 598 The explanation for the omission given by KN was that she had already told the police in her statement that she had given the accused oral sex and for that reason did not mention the oral sex on the occasion he was painting. 599 I am not persuaded that the omission bears upon the credibility or reliability of the complainant for the reasons I have previously identified, relating to the age of the complainant at the time of the alleged offending, the effluxion of time since the alleged offending and the regularity and frequency of the alleged unlawful sexual acts which most often involved, amongst other acts, fellatio. I accept the complainant’s evidence that she did not mention this specific incident of engaging in oral sex with the accused because she had already given evidence of that type of act. I do not consider that the fact the unlawful sexual act occurred outside the accused’s bedroom to be of particular importance, bearing in mind that on her evidence, the accused then took her to his bedroom where a further, and arguably more serious, unlawful sexual act occurred, namely penile/vaginal intercourse. This is consistent with her evidence that the unlawful sexual acts would always occur in the accused’s bedroom. 600 Counsel for the defence referred to the evidence of KN that the accused had engaged in an unlawful sexual act involving mutual oral sex with the complainant. Counsel rightly identified that the complainant accepted that she had not mentioned such an incident in any of her statements to the police. It was submitted that such an act was different from the usual routine, and as such might stand out to her and by implication, one would expect that it would be mentioned in a police statement. 601 I do not accept that submission and I am not satisfied that the omission of any allegation of simultaneous oral sex between the accused and the complainant undermines the credibility or reliability of the complainant. 602 The complainant’s evidence is that oral sex, both cunnilingus and fellatio, occurred between her and the accused very frequently from almost the beginning of the commencement of the sexual abuse and continued throughout the period that they lived together in the various homes before KN moved out. 603 I consider it unsurprising that the complainant did not mention to police acts of mutual oral sex when she had identified that cunnilingus and fellatio were frequent aspects of the accused’s conduct. 604 An adult, or at least some adults, may find the sexual practice of mutual oral sex particularly erotic and therefore noteworthy. I would not expect a child, in the circumstances of the complainant, having her father cause her to engage in such an act, to have the same view. A child in the complainant’s circumstances may simply see it and describe it as her ‘sucking his penis’ and him ‘licking her vagina’ without any reference to the mutuality of the act. -- 79 of 89 -- [2024] SADC 97 78 605 The complainant’s omission from the police statements of the description of simultaneous oral sex does not adversely affect my assessment of her credibility or reliability. 606 KN gave evidence of an alleged incident which occurred at the rental property she shared with her brother Vince after she moved from the accused’s home. The incident occurred outside the period in which the charged acts are said to have occurred. In her evidence, KN said that the accused attended the premises when she was alone. He directed her to the bedroom and told her to get undressed and she complied. He then undressed himself and they both were on the bed, with him on top touching her breasts. Before he inserted his penis in her vagina, her brother Vince arrived home and the accused quickly pulled his pants up and walked outside as if nothing happened. 607 The incident is not reported in any of the complainant’s police statements. 608 It was submitted that the uniqueness of the alleged incident, namely that it was the last incident that occurred between the accused and KN, would cause it to stand out and not to blur with other incidents alleged to have occurred. 609 I accept that the incident is one which would stand out in the complainant’s mind because it was the last occasion on which the accused behaved in a sexual manner towards her and because it was the only occasion at the St Clair apartment. 610 However, on the evidence of the complainant, on this occasion the accused did not engage in any completed acts of unlawful sexual conduct. The usual sexual acts alleged against him over the previous several years did not happen. The accused did not perform cunnilingus on the complainant, she was not required to engage in fellatio, he did not insert his fingers in her vagina and he did not engage in penile/vaginal intercourse. These acts formed the gravamen of her complaint. 611 I do not consider it surprising that KN did not make mention of this incident to the police because the accused did not engage in the usual sexual acts. The fact that those usual acts including sexual intercourse did not occur, in my view, explains the omission. There were, on the complainant’s evidence, many completed acts about which she could tell the police. 612 I do not consider that this omission adversely affects the credibility or reliability of the complainant. Alleged inconsistency about sexual intercourse occurring on the day the complainant pushed her father 613 KN gave evidence of an occasion where the accused had hurt his leg and had tried to have sex with her. She said that on this occasion she slightly pushed him away, but he had sex with her anyway. She said that the next day his leg was still hurting and he could not get out of bed and an ambulance attended and took him to hospital. -- 80 of 89 -- [2024] SADC 97 79 614 Under cross-examination, KN confirmed that the accused had sex with her on the day she pushed him. It was suggested to her that several days before the trial, she told the prosecutor and the police that the accused did not have sex with her on the day that she ‘slightly pushed him’. The complainant rejected that suggestion and said that she did tell them that he had sex with her. 615 The agreed fact at point 22 of Exhibit P9 states that on 6 June 2023, KN told the police that on the occasion when she alleges an ambulance attended, the next day her father did not have sex with her. 616 Counsel for the defence submit that this establishes not only an inconsistent statement but a serious blight on the complainant’s credibility because she denied something that was said to police days earlier. However, the complainant was not given the opportunity to refresh her memory from her statement, nor was she shown the statement before being contradicted. She was not given the opportunity to see the statement and possibly correct her account or offer any explanation about the apparent inconsistency. 617 While I do not speculate about the reasons for the apparent inconsistency, the lack of opportunity for the complainant to either correct herself or explain assumes greater relevance where there is a young witness for whom English is a second language and there are factors which may have caused her to misunderstand questions asked of her by the police. Certainly, there were numerous examples in her evidence where the complainant required an explanation of questions, the rephrasing of questions, and instances where it appeared that she was at cross purposes with counsel. 618 It was in my view important that KN be given the opportunity to see her statement before she was contradicted and given the opportunity to explain any inconsistency she identified. 619 In any event, I am not satisfied that the apparent inconsistency undermines my assessment of the credibility or reliability of KN. I would not expect even an honest and reliable witness to be completely consistent. I do not consider such an inconsistency in this case to be sufficiently serious to affect my assessment of her. 620 Having regard to the lack of opportunity for the witness to read and comment on her statement to the police does not give any weight to the defence submission that the complainant’s denial in the face of the agreed fact undermines her credibility. Absence of grooming behaviour 621 Counsel for the defence observed that the alleged sexual offending commenced without the sort of typical grooming behaviour. It was submitted that the alleged conduct involved a boldness on behalf of the accused. It was suggested that the absence of evidence of discreditable conduct meant this concern could not be circumvented. It was further submitted that nothing was said by the accused to -- 81 of 89 -- [2024] SADC 97 80 the complainant about remaining silent until after the alleged conduct purportedly commenced and without the testing of the waters. It was submitted that it would be difficult to accept such evidence. 622 As a corollary to that submission, counsel for the defence suggests that it was curious that KN did not suggest that moving out of her father’s home was anything to do with the sexual offending. 623 The relevance of evidence of discreditable conduct in such cases is often relevant and can be highly probative in terms of explaining the acquiescence and response by the complainant to the accused’s conduct. However, the absence of such evidence in this case is quite neutral in terms of assessing the complainant’s conduct in response to the alleged offending. The complainant’s response must be assessed on the evidence which the court accepts. The cogency of that evidence must be assessed in all the circumstances of the case. 624 In this case, KN was highly dependent on the accused. She was very young. The objective evidence establishes that she had only recently arrived in Australia and had little or no English language skills on arrival. The accused was in the position of sole parent and guardian following the family’s migration to Australia. It is not surprising, in my view, that the accused would have some confidence about the low risk of detection when he engaged in the first unlawful sexual act with the complainant. The accused had a very significant degree of control over the young complainant. The escalated alleged unlawful sexual acts which followed were accompanied by demands of the accused of the complainant’s silence. There is the likelihood too, that in the circumstances alleged by the complainant that she did not make a complaint for some time, that the accused’s confidence grew about the risk of detection. 625 I do not consider that the absence of grooming behaviour or the absence of demands of silence at the initial stages of the offending undermine the credibility or reliability of the complainant. I am also not satisfied that the complainant’s credibility and reliability is affected by the evidence that she moved out of the family home for reasons apparently unrelated to the offending behaviour. Those other reasons relate to financial issues which are addressed below. Financial arrangements 626 It was suggested by counsel for the defence that in her evidence KN demonstrated a real reticence to talk about financial matters. It was submitted that her reluctance in this respect was relevant to her overall credit. 627 I accept that the complainant told the court that her older brother moved out of the family home following a disagreement with the accused, but that she did not know what it was about. KN agreed that about two months later she and Vince moved out to an address in St Clair. She said that that was also following a disagreement with the accused. She said that she did not know what the disagreement was about. The complainant was then asked whether there was a -- 82 of 89 -- [2024] SADC 97 81 common reason that disagreements would occur. KN then identified financial problems as the common reason for disagreements. The complainant said that bills could not be paid on time. She said that the accused and her brothers never talked to her about money problems and she was not sure why there were money problems. The complainant told the court that it was her father who had the money problems and not her brothers. She said it was her father who had money problems because of gambling. Importantly, the complainant said that when the accused and her brothers would argue and talk together, she was not allowed to be in the same room as them. KN said that she was not allowed to listen to the conversation. She agreed that the best she knew was that there were money problems and her dad gambled. 628 I do not consider the complainant’s evidence about the financial difficulties of the family undermined her credibility or reliability. I accept her evidence that she was not directly involved in the discussions between the accused and her older brothers about financial problems. It is clear from her evidence that she was deliberately kept out of those discussions. Bearing in mind the complainant’s age at the time, one might expect that she would not be involved in these discussions to avoid any embarrassment and disrespect of her father. In addition, the complainant would have been aware by virtue of her exclusion from discussions of the sensitivity of the subject. In those circumstances it is unsurprising that it was a subject that she approached with caution as a sensitive family issue about which she knew little. Complaint evidence 629 Counsel for the defence suggested that there were circumstances in which the complainant found herself where it might be thought natural to complain and where one ought to have complained and no complaint was forthcoming. These circumstances included the fact that she was living away from her father with her brother Vince, among other points. It was submitted that absence of a complaint in those circumstances is relevant to the consistency in the sense of having made a complaint. 630 As I understand the submission, it is to suggest that there was an inconsistency of conduct in the making of the complaint because a complaint was not made when it would have been expected to have been made. 631 It was submitted that this was relevant to the complainant’s credibility. 632 Counsel for the defence specifically disavowed any suggestion that the delay by the complainant in the making of a complaint was in any way probative. 633 Section 34M(4(c) of the Evidence Act requires as a matter of law that a direction be given about the use of complaint evidence, namely that there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person. -- 83 of 89 -- [2024] SADC 97 82 634 The evidence of KN was that she was reluctant to report her father to the police because at that time she still loved her father and still saw him as her father. I am satisfied that her evidence on this topic was sincere. Although that evidence related to a report to the police, it is relevant to the extent that it discloses the nature of her relationship with her father and her attitude generally to disclosing his behaviour. 635 The complainant’s evidence about disclosing her father’s sexual misconduct to YL is also relevant. KN told the court that she disclosed the allegation to her school friend because she was not having the ‘best day’ and it was easier to tell her friend because she was not her family.533 The complainant also asked her friend not to tell anyone. 636 KN finally disclosed the accused’s alleged conduct after she had left her father’s home and was living with her brother at St Clair. She said that she was not doing well at school and was skipping school a lot. Her brother Vince asked her if she was okay and what had happened. KN then disclosed the allegation after he promised that he would keep it a secret. The complainant told the court that she was begging Vince not to tell anyone. 637 I accept the complainant’s evidence that she was reluctant to disclose the allegations to family members and that the disclosure of the offence was precipitated by Vince’s inquiries about her well-being because of her school attendance and performance. 638 Considering that evidence, I am satisfied that the circumstances in which the allegations were disclosed both to the school friend and the brother do not adversely affect the consistency of the conduct of the alleged victim. 639 It was suggested that there were ‘significant discrepancies’ between the complainant’s evidence and the complaints that she made which ‘significantly undermines the consistency of conduct inherent in making a complaint’. It was submitted that the evidence undermines, rather than buttresses, the complainant’s credibility. 640 It was also submitted that there was an inconsistency between the terms of the complaint and the complainant’s evidence. 641 Counsel for the defence identified an apparent discrepancy between the complainant’s evidence about her complaint to her school friend YL and YL’s evidence. The complainant was not able to remember her exact words to YL but in her memory, she told YL that she ‘got sexually abused at home’.534 YL asked KN whether she meant that the accused inserted his penis into her vagina and KN responded, ‘yes, he did’.535 However, the evidence of YL was that the complainant 533 T87.27-32. 534 T88.7-10. 535 T88.7-28. -- 84 of 89 -- [2024] SADC 97 83 had told her that her father had ‘raped’ her. It was also submitted that nothing was said about the frequency of the sexual acts but that it was said it occurred when the complainant was living at Woodville Gardens and when her brother was in Melbourne. 642 It was submitted that there was an inconsistency in relation to the offending occurring at the Woodville Gardens premises and not elsewhere. It was suggested the omission in the complaint about abuse occurring in other premises and the evidence that the brothers went to Melbourne only once or twice undermines KN’s evidence about the frequency of the acts of sexual abuse. 643 However, YL’s evidence about frequency was that KN told her it would happen when her brother was out of the house generally, without reference to her brothers being in Melbourne.536 Other evidence clearly establishes that KN’s brothers were often out of the house for educational and employment purposes. 644 The only location identified in the complaint to YL was Woodville Gardens. 645 I do not consider the discrepancies identified by the defence counsel on this topic are sufficiently material to undermine the reliability and credibility of the complainant. It was no doubt an important conversation between the complainant and the witness and its uniqueness would have made it memorable. However, in my view, neither the complainant nor the witness could be expected to recall the terms of the conversation between them word for word. KN believed her words to be that the accused ‘sexually abused’ her. When asked by YL, she agreed that her father inserted his penis into her vagina. The difference between the complainant agreeing that the accused inserted his penis into her vagina and YL’s recollection that the complainant had told her that her father had ‘raped’ her, are in my view a matter of semantics. The import of the conversation was that the complainant told her friend that her father ‘sexually abused’ her and had sex with her. 646 The apparent discrepancies relating to frequency and the identification of the locations where the unlawful sexual acts were said to have occurred does not undermine the credibility of the complainant. In my view, a young complaint witness in the context of a schoolyard conversation cannot be expected to have recounted all or even many of the alleged incidents of offending committed over a period of several years. One might reasonably expect, having made a complaint, that she was alerting her friend generally to a very significant and personal issue. This is consistent with KN’s evidence that she said she was ‘sexually abused’, rather than describing specific acts, times and places. One might reasonably expect the complainant not to elaborate on the type of detail required in evidence in court. 647 Counsel for the defence identified discrepancies between the complainant’s evidence and the second complaint witness, her brother Vince. 536 T162.30-32. -- 85 of 89 -- [2024] SADC 97 84 648 The first inconsistency identified by counsel arises from the evidence given by Vince. In cross-examination, Vince said that KN told him that the accused had raped her at Essex Street but that she did not say that it began at Essex Street.537 Vince then agreed that he had told police that during that conversation, he had asked KN when the abuse started and KN said it started when they were living together at 33 Essex Street, Woodville Gardens.538 Vince said that he told police that because that is what he recalled KN saying to him to the best of his memory at the time.539 However, the evidence of KN was that the sexual abuse commenced at an earlier point when living elsewhere (Days Road) and concluded at the time the family were living at Essex Street. 649 I do not consider that very much turns on the difference between the complainant’s account and Vince’s evidence on this point. The evidence shows that Vince provided a statement to police some considerable time after the complaint made by his sister. It is clear from the evidence of Vince that the complainant was reluctant to disclose the allegations and did not make extensive references to particular incidents or acts of abuse. The complainant, on her evidence, was anxious to ensure that her brother did not further disclose the allegations. In his evidence Vince said he did not ask for details because he felt it was ‘quite disgusting’.540 In those circumstances, one might expect that KN provided minimal detail in order to avoid her brother taking the matter further. I consider that in those circumstances, the evidence of Vince that the complainant told him that the abuse started at the Essex Street house is likely to be an impression or a conclusion he drew from the conversation which was sparse in detail about locations and specific acts. 650 Counsel for the defence also raised another discrepancy that involved KN telling Vince that the accused called the complainant home from school to have sex with him. I do not draw any significance from this alleged discrepancy. It is an issue of inconsistency that at best goes to the weight of the complaint evidence. 651 The final alleged inconsistency between the complainant’s evidence and that of her brother Vince relating to the complaint concerns the complainant’s evidence that the brother suggested that she keep it a secret for longer because they needed their father’s money. In his evidence, Vince denied that he had made such a suggestion. 652 I do not consider this to be an inconsistency in relation to the complaint evidence. The evidence of KN that her brother suggested that she keep it a secret for longer for financial reasons is not evidence of a complaint by the alleged victim. It is evidence of an inconsistency between the evidence of the complainant and her brother. It is difficult to see how it is relevant other than to the general reliability of the complainant as a witness. In any event, I find the evidence is not terribly 537 T295.26-28. 538 T296.20-25. 539 T296.26-38. 540 T256.33-35. -- 86 of 89 -- [2024] SADC 97 85 relevant, particularly as it does not expose any motive to lie on the part of the complainant on either view of the evidence. 653 In summary, I do not consider that the inconsistencies, such as they are in the complaint evidence, undermine the credibility or reliability of the complainant. However, bearing in mind the absence of detail and differences in language used, I find the complaint evidence to be of only limited value and then, only in relation to the making of a complaint, when it would be expected to have been made and why the alleged victim did not make the complaint at an earlier time. Due to the paucity of detail, the complaint evidence provides little if any support for a consistency in the narrative of the complainant. Motive to lie 654 Counsel for the defence submitted that there were aspects of the ‘family scenario’ as it was put, which provides a motive for the complainant to have made false allegations about the accused. 655 The motives relate to KN’s alleged resentment of her father’s marriage to his second wife and reduced financial support for the complainant. 656 KN denied any ill feeling towards the accused’s second wife, her stepmother. The complainant only said that they did not have a close relationship.541 Her evidence in this regard was consistent with the evidence of her brother, Vince. There was no direct evidence to the contrary or any other evidence that might suggest the complainant had cause to, or exhibited, any ill feeling towards her father’s second wife. 657 I am satisfied that KN was not motivated to lie and make false allegations about her father, the accused, because of his marriage to her stepmother or a resentment of her father’s marriage to her stepmother. 658 The evidence does establish that there was disharmony within the family over financial issues. The evidence discloses that the complainant’s two older brothers and the accused argued over the family’s financial situation and the accused’s gambling issues. As discussed earlier, the evidence does not disclose that KN was involved in those discussions or was aware of the detail of the financial issues between the accused and her brothers. There appears to have been no disharmony that involved the complainant. The best KN knew was that there were money problems and her father gambled.542 659 Accordingly, I am satisfied that the dispute over financial matters between the accused and the complainant’s brothers did not motivate KN to fabricate the allegations against the accused. 541 T143.24-26. 542 T82.13-15. -- 87 of 89 -- [2024] SADC 97 86 660 The evidence also discloses that the accused stopped making payments to Vince on behalf of the complainant after the complainant and Vince moved to St Clair. However, the complainant’s evidence was that the payments that the accused would give to her did not stop at any time up until KN made a report about this matter in May 2021.543 The evidence suggests that the complainant was then unaware of the cessation of the payment which was an issue between her brother and the accused.544 661 The evidence discloses that the accused continued to make direct payments to the complainant after she left the accused’s home. These payments were used for what might be described as discretionary spending. 662 It is clear that financial matters were of importance to the family, including the complainant. In my view that is to be expected. The complainant and her family at the time of the alleged offending were new arrivals to Australia. Their father, the accused, was engaged in casual seasonal employment in the farming sector. His hours of work varied significantly based not only on the seasons but also weather conditions. The complainant’s older brothers were required to engage in seasonal farm work and casual restaurant work for income and to support their studies. The family lived in rental accommodation which turned over rapidly and the accused took in tenants to provide additional income. 663 In those circumstances, one might well expect family, including the complainant, to have some focus on their financial security as well as their security of accommodation. It is unsurprising therefore that the complainant’s evidence might show focus on financial issues. 664 KN’s evidence about her financial interests did not in my view motivate her to fabricate allegations against her father. I reject such a proposition is a reasonable possibility. I accept the complainant’s evidence that despite the accused’s conduct, she still loved her father, saw him as her father and was reluctant to have him reported for his sexual abuse. Conclusion 665 As previously indicated there is no dispute about the following matters and I am therefore satisfied beyond reasonable doubt that; 1. There was a continuing familial relationship between the accused and the complainant of biological father and daughter which existed throughout the charged period; 2. The accused was an adult; 3. The alleged victim of the offence was a child. 543 T86.13-16. 544 T147.15-18. -- 88 of 89 -- [2024] SADC 97 87 666 I accept that the complainant KN was a credible and reliable witness. For reasons I have elaborated upon, I reject as a reasonable possibility that the complainant has fabricated the allegations against the accused of unlawful sexual acts by him upon her. I find that the imperfections and any infirmities in her evidence do not, for reasons I have given, undermine her reliability. 667 In relation to whether the prosecution has proven that the accused maintained an unlawful sexual relationship with the alleged victim, I am satisfied beyond reasonable doubt based on the evidence of the complainant that the prosecution has established that; 668 During the relevant period the accused maintained a relationship with KN and on two or more occasions engaged in unlawful sexual acts with KN over the relevant period involving: (a) touching her nipples; (b) touching her vagina; (c) causing her to masturbate his penis; (d) inserting his penis into her vagina; (e) causing her to perform an act of fellatio on him; (f) causing her to lick his testicles; (g) masturbating in her presence; and (h) performing an act of cunnilingus on her. 669 Accordingly, I find the accused guilty. -- 89 of 89 --