[2024] SADC 100

Prosecution: R Counsel: MR P MULVIHILL - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: KMP Counsel: MS C DEMERTZIS - Solicitor: KUDRA & CO Hearing Date/s: 03/07/2023 to 07/07/2023 File No/s: DCCRM-22-372 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 KMP Criminal Trial by Judge Alone [2024] SADC 100 Reasons for the Verdicts of his Honour Judge Handshin 23 August 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES The accused is charged with sexual offending against three of his nieces, KH, NV and AP. Count 1, which was alleged to have occurred in or around 1981/1982, involved an allegation that the accused, who was staying overnight at KH’s parents’ house, caused KH to masturbate his penis after calling her over to his sleeping bag which was set up in the lounge room of the residence. KH also alleged that, some years earlier, the accused had pressed his penis into her back as he sat behind her during a horse ride at the accused’s parents’ Riverland property. Count 2, which was alleged to have occurred in or around 1990/1991, involved an allegation that the accused incited or procured NV, who was then 11 or 12 years old, to touch his penis, after she discovered him masturbating. No further offending against NV was alleged. Count 3 related to four discrete episodes of alleged offending committed against AP, the youngest of the three complainants, between 2002/03 and 2005/06. The particularised unlawful sexual acts included digital penetration, fellatio, indecent assault and an act of gross indecency. The prosecution also led evidence from the younger sister (CS) of the accused’s brother’s wife, who gave an account of the accused forcing her hand down his pants in the lounge room of the Riverland property, in the mid-1970s when she was 7 or 8 years old. The evidence of the complainants and CS was said to be universally cross admissible for improbability and propensity reasoning. The accused was arrested and charged in March 2021. He participated in an interview with police during which he denied the allegations of KH, NV and AP. As to the allegations of CS, the accused agreed that there had been an incident between him and CS in the lounge room of the Riverland property, during which he claimed that CS told him she wanted to have sex with him. Held: -- 1 of 114 -- The evidence of CS, KH and NV was cross admissible on a similarity of account basis. The evidence of CS, KH and NV was not cross admissible for a propensity use. The evidence of AP, which was qualitatively dissimilar to the accounts of CS, KH and NV in various material respects, was not cross admissible in respect of counts 1, 2 or the uncharged incident involving CS, and vice versa. The prosecution has disproved collusion and contamination beyond reasonable doubt. Notwithstanding inconsistencies and various shortcomings in their accounts, the complainants were credible, reliable and convincing witnesses. The accused’s denials in his record of interview can be rejected as not reasonably possibly true. The elements of each offence are proved beyond reasonable doubt. The accused is guilty of counts 1, 2 and 3. Criminal Law Consolidation Act 1935 (SA) ss 49(1), 49(7), 50(1), 50(12), 56, 58(1)(a) and 58(1)(b); Evidence Act 1929 (SA) ss 34CB, 34L(2)(a), 34M, 34P, 34R and 34S; Statutes Amendment (Child Sexual Abuse) Act 2021 (SA) ; Uniform Evidence Acts s 97; , referred to. Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 274 CLR 531; R v Dookheea (2017) 262 CLR 402; De Silva v The Queen (2019) 268 CLR 57; (2019) 94 ALJR 100; R v Alwazan [2016] SASCFC 155; Liberato v The Queen (1985) 159 CLR 507; Robinson v The Queen (No 2) (1991) 180 CLR 531; Stafford v The Queen (1993) 67 ALJR 510; JGS v The Queen [2020] SASCFC 48; Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257; R v T, WA (2014) 118 SASR 382; R v R, PA [2019] SASCFC 19; Angus (a pseudonym) v The King [2024] SASCA 101; Bates v The King [2023] SASCA 65; Ayles v The Queen (1993) 66 A Crim R 302; R v Castiglione (1962) 63 SR (NSW) 393; Attorney-General's Reference (No.1 of 1975) [1975] Q.B. 773; JJP v The Queen [2021] SASCA 53; R v Bonython-Wright (2013) 117 SASR 410; MDM v The Queen (2020) 136 SASR 360; R v C, CA [2013] SASCFC 137; Slape v The Queen [2022] SASCA 91; McRoberts v The King [2024] SASCA 92; R v Marshall [2023] SASCA 105; DES v The Queen [2020] SASCFC 32; Phillips v The Queen (2006) 225 CLR 303; Hughes v The Queen (2017) 263 CLR 338; McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045; TL v The King [2022] HCA 35; (2022) 275 CLR 83; The Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15; JS v The Queen [2022] NSWCCA 145; Hofer v The Queen (2021) 274 CLR 351, [2021] HCA 36; Rout v The King [2024] SASCA 72, considered. -- 2 of 114 -- R v KMP [2024] SADC 100 Criminal Jurisdiction 1 The accused is charged on Information with the following offences allegedly committed against three of his nieces who I will refer to as KH, NV and AP: First Count Statement of Offence Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935). Particulars of Offence [KMP] between the 17th day of June 1980 and the 16th day of June 1982 at Osborne, indecently assaulted [KH] by causing her to masturbate his penis. Second Count Statement of Offence Inciting or Procuring Gross Indecency. (Section 58(1)(b) of the Criminal Law Consolidation Act, 1935). Particulars of Offence [KMP] between the 13th day of February 1990 and the 12th day of February 1992 at Moorook, incited or procured the commission of an act of gross indecency by [NV], a person under the age of 16 years, with [KMP], by causing her to masturbate his penis. Third Count Statement of Offence Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935). Particulars of Offence [KMP] between the 1st day of January 2002 and the 1st day of January 2006 at Moorook, maintained an unlawful sexual relationship with [AP], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely: (a) Inserting a finger or fingers into [AP’s] vagina on more than one occasion; (b) Procuring [AP] to touch his penis on more than one occasion; (c) Masturbating in [AP’s] presence on at least one occasion. (d) Procuring [AP] to perform an act of fellatio upon him on at least one occasion. -- 3 of 114 -- [2024] SADC 100 2 In the alternative to Count 3, [KMP] is charged with the following offence: Fourth Count Statement of Offence Unlawful Sexual Intercourse with a Person under 12 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935). Particulars of Offence [KMP] between the 1st day of January 2002 and the 1st day of January 2004 at Moorook, had sexual intercourse with [AP], a person under the age of 12 years, by inserting a finger or fingers into her vagina. In the alternative to Count 3, [KMP] is charged with the following offence: Fifth Count Statement of Offence Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935). Particulars of Offence [KMP] between the 1st day of January 2002 and the 1st day of January 2004 at Moorook, indecently assaulted [AP] by causing her to masturbate his penis. In the alternative to Count 3, [KMP] is charged with the following offence: Sixth Count Statement of Offence Committing an Act of Gross Indecency. (Section 58(1)(a) of the Criminal Law Consolidation Act, 1935). Particulars of Offence [KMP] between the 1st day of January 2003 and the 1st day of January 2005 at Moorook, committed an act of gross indecency in the presence of [AP], a person under the age of 16 years, by masturbating in the presence of [AP]. In the alternative to Count 3, [KMP] is charged with the following offence: Seventh Count Statement of Offence Unlawful Sexual Intercourse with a Person under 12 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935). -- 4 of 114 -- [2024] SADC 100 3 Particulars of Offence [KMP] between the 1st day of January 2005 and the 1st day of January 2006 at Moorook, had sexual intercourse with [AP], a person under the age of 12 years, by causing her to perform an act of fellatio upon him. 2 Counts 4, 5, 6 and 7 are alternatives to count 3. 3 The accused pleaded not guilty to the charges and elected to be tried by a judge sitting without a jury. I now publish my reasons for the verdicts that I deliver. The prosecution case 4 The accused was one of seven children born to TP and BeP. The accused grew up on the family property at Moorook, in the Riverland, where all but one of the offences with which he is charged are said to have been committed. His eldest sister, JP, is the mother of KH, who is in turn the eldest of the three complainants, having been born in June 1969. The accused’s older brother, WP, is the father of NV, the second oldest complainant, who was born in February 1979 and the accused’s younger brother, RP, is the father of AP, the youngest complainant, who was born in September 1996. 5 The family tree set out below may assist to help visualise the relationships between the various witnesses and others referred to in the course of the evidence, and is derived from exhibit P1. TP married BeP Parents of seven children 6 The charges relate to a number of discrete episodes of abuse allegedly occurring between 1981/1982 and 2005/2006. 7 Count 1 is alleged to have occurred in or around 1981/1982 when KH was 12 years old and the accused was 22-23 years old. The prosecution case is that during an overnight stay by the accused and his parents (KH’s grandparents) at KH’s family home in Osborne, the accused called KH over to his sleeping bag, which was set up in the lounge room, after she got up during the night to get something from the kitchen. It is alleged that after KH got into the accused’s sleeping bag, the accused placed KH’s hand on his penis and made her stroke his JP (daughter) married CB (OSBORNE) ♂ DWB ♂ SAB ♀ KH ATP (son) married DJP (RIVERLAND) ♀ HAG ♂ ADP ♂ SJP WJP (son) married JMP (DARWIN) ♀ NV ♀ JP LSP (son) married BLP (RIVERLAND) ♂ MAP ♂ RSP ♀ TLP WEP (daughter) married DJH (DARWIN) ♂ BJH ♂ CAH KMP (son) (unmarried) (MOOROOK) (Accused) RP (son) married REP (ROXBY DOWNS) ♀ AP ♂ BJP ♂ NAP ♂ JSG ♀ CS (JMP’s sister) -- 5 of 114 -- [2024] SADC 100 4 penis for two minutes, after which KH returned to her bedroom. KH gave evidence that the following morning, her father, CB, spoke to her about finding the accused in her bedroom. It was the prosecution case that KH thereafter complained to her mother, JP, that the accused ‘did stuff to me last night’, but nothing came of the complaint. 8 CB gave evidence on the prosecution case about an occasion when the accused and his parents stayed at Osborne. CB described an unusual occurrence of finding the accused behind the door to KH’s bedroom on this particular evening. This was the subject of discussion the following day between CB, his wife JP, and KH and served to link the incident described by KH with the occasion about which CB gave evidence. 9 KH’s mother, JP, also gave evidence on the prosecution case on the topic of initial complaint. Contrary to KH’s evidence, JP1 said that KH did not make a complaint to her about the accused. 10 Count 2 is alleged to have occurred in or around 1990/1991 when NV was 11 or 12 years old and the accused would have been 32-33 years of age or thereabouts. The prosecution case is that during a visit by NV and her family to her grandparents’ property at Moorook, where the accused also lived, NV came across the accused masturbating in the lounge room. The accused said something to NV and she approached him. It is alleged that the accused then procured or incited NV to touch and stroke his penis for a few seconds before NV left the lounge room. 11 Count 3, and its alternatives, are alleged to have occurred between 2002/2003 and 2005/2006, when AP was aged between six and 10 years old. Again, the offences are alleged to have been committed on occasions that AP and her family stayed at the Moorook property. Count 3 concerns four discrete episodes about which AP gave evidence. 12 The first is alleged to have taken place when AP was six years old. The accused told AP he wished to show her something. She accompanied him to his bedroom where the prosecution allege that he digitally penetrated AP. 13 The second incident is alleged to have taken place around a week later and during the same stay at Moorook. The prosecution case is that, on this occasion, AP saw her uncle driving some farm equipment into a shed on the property, prompting her to essentially investigate what he was doing. AP entered the shed whereupon the accused approached her with his penis exposed and had her masturbate him for a period of time. 14 The third incident is alleged to have taken place around a year later, when AP was seven years old. On this occasion, the accused is alleged to have taken AP 1 To maintain consistency with the family tree set out earlier, I will refer to JP using her maiden initials and not her married initials of JB. -- 6 of 114 -- [2024] SADC 100 5 to an old shed on the Moorook property and masturbated to ejaculation in her presence. 15 The final incident is alleged to have occurred some years later, when AP was nine or ten years old. The prosecution case is that on one night during this stay at Moorook, AP got out of bed to use the toilet, the entrance to which was directly across from the accused’s bedroom door. On her way back to her bedroom, AP saw the accused standing in the doorway to his room. He told her to ‘suck his dick’. AP complied and performed fellatio on the accused before running to the toilet and vomiting. 16 No evidence of initial complaint was led other than in respect of count 1 and, as I have said, there was a conflict in the evidence of KH and her mother JP on this topic. 17 In addition to the evidence of the complainants, the prosecution also led evidence from CS – the younger sister of JMP, who married one of the accused’s brothers. CS gave evidence about an uncharged incident involving her and the accused and which was said to have taken place at the Moorook property in or around 1975 or 1976, when the accused invited CS to look at some kittens in the lounge room of the property. CS was seven or eight years old at the time. She accompanied the accused into the lounge room where the accused asked CS to lay on a sofa with him, which she did. The accused is alleged to have grabbed CS’ hand and put it down his pants and in contact with his genitals. The accused then asked CS to ‘show yours’ at which point she shouted ‘no’ and left the room. 18 The allegations against the accused appear to have primarily come to light in around 2018/2019, in the aftermath of the funeral of one of the accused’s brothers, LSP. Thereafter, KH, NV and AP made disclosures to each other about abuse allegedly perpetrated by the accused in circumstances that it will be necessary to set out in some detail. 19 A brief chronology of the charged and uncharged acts, and the age of the accused, the complainants and CS at the relevant times, is as follows: 16 September 1958 Accused’s date of birth. 29 March 1968 CS’ date of birth. 17 June 1969 KH’ date of birth. June 1974-June 1977 Horse riding incident (uncharged) involving KH (5- 7yo) and the accused (16-18yo). 1975/1976 Uncharged incident involving CS (7-8yo) and the accused (16-18yo) in the lounge room at Moorook. -- 7 of 114 -- [2024] SADC 100 6 13 February 1979 NV’ date of birth. 1981/1982 Count 1 involving KH (12yo) and the accused allegedly occurs at Osborne. 1990/1991 Count 2 involving NV (11-12yo) and the accused allegedly occurs at Moorook. 16 September 1996 AP’ date of birth. 2002/2003 Count 3 (particulars (a) and (b)) involving AP (6yo) and the accused (44-45yo) allegedly occur at Moorook. 2003/2004 Count 3 (particular (c)) involving AP (7yo) and the accused (45-46yo) allegedly occurs at Moorook. 2005/2006 Count 3 (particular (d)) involving AP (9-10yo) and the accused (47-48yo) allegedly occurs at Moorook. 31 March 2021 Accused arrested. The defence case 20 Much of the background evidence given by KH, NV and AP concerning the time they spent with the accused and family visits to Moorook (and, in KH’s case, the accused visiting Osborne with his parents) was not in dispute. The evidence of other witnesses called by the prosecution – CB, JP and RP, was not challenged in cross examination. 21 The defence case did however challenge the credibility and reliability of the evidence of the complainants and CS as to the alleged offending (charged and uncharged). In short, the defence case was that none of the alleged sexual acts occurred and that the evidence of the complainants and CS was unreliable having regard to the lengthy passage of time between the events the subject of the charges and the trial and their young age at the time of the events about which they gave evidence. The defence also challenged the credibility and reliability of the complainants’ evidence on the basis of inconsistencies in their accounts; as between their accounts and having regard to the asserted implausibility of aspects of their evidence. 22 It was also argued that the circumstances in which the complainants came to disclose to each other their allegations of abuse, and variations in their evidence as to the nature and extent of the ensuing conversations they had, gives rise to the possibility that their memories, and hence their evidence as to the charged acts, has been contaminated. Although counsel for the accused expressly disavowed any -- 8 of 114 -- [2024] SADC 100 7 suggestion of collusion,2 it remains necessary for the prosecution to disprove collusion beyond reasonable doubt. 23 There was no suggestion that CS had been involved in any such conversations. 24 No application for severance of any count on the Information was made by counsel for the accused.3 25 Finally, the defence relied on the accused’s denials of any wrongdoing during his interview with police, following his arrest. The accused was 62 at the time of his arrest. 26 It is convenient at this point to set out what the accused said during his interview. The accused’s denials during his interview are to be approached in the following way. The burden of proving the charges beyond reasonable doubt rests on the prosecution. The accused has the presumption of innocence in his favour and does not have to prove anything. I do not have to believe the accused’s denials for there to be a reasonable doubt. If the accused’s denials are even reasonably possibly true, the prosecution will have failed to prove its case. 4 Even if I reject the accused’s denials as not reasonably possibly true, it would not follow that the prosecution has proved one or more of the charges. The accused can only be convicted if I reject his denials as not reasonably possibly true and I am satisfied beyond reasonable doubt that the elements of the offences have been proved based on the evidence of KH, NV and AP respectively. 27 I will assess the accused’s demeanour, credibility and reliability in his interview with the police in the same way as I assess the evidence of all other witnesses.5 I give the accused credit for answering police questions in circumstances where he was not obliged to. 28 Detective Rethus, the investigating officer, gave evidence that the accused was arrested on 31 March 2021 and charged with the offences now before me, after voluntarily attending at the Berri Police Station in response to a request by Detective Rethus. The accused participated in an interview with police. A recording of the interview was tendered (P13) and a transcript provided as an aide memoire (MFIP13A). It was, of course, open to the accused to decline to answer police questions but he chose to do so and, as I say, I give him credit for taking a course he was not obliged to take. 2 T311. 3 That is unsurprising given the nature of the defence case. See, for example, Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 274 CLR 531. 4 De Silva v The Queen (2019) 268 CLR 57; (2019) 94 ALJR 100, [10]-[11]; R v Alwazan [2016] SASCFC 155, [3]. 5 Robinson v The Queen (No 2) (1991) 180 CLR 531, 535-536; Stafford v The Queen (1993) 67 ALJR 510; Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257. -- 9 of 114 -- [2024] SADC 100 8 29 After the allegations were introduced to the accused broadly early on in the interview, the accused told Detective Rethus that his niece had been ‘hassling me all on the phone all the time…on Facebook all the time. Yeah it’s pretty bad’. He said further that his niece had attended his house after midnight on an occasion and wrecked his door and thrown a brick through the kitchen window and tried to break into his shed. It later became apparent the accused was referencing his niece, TLP, who, it will be seen, was involved in some of the discussions between KH and AP about the allegations before me. When the accused was told that ‘this is not…anything to do with [TLP]’, he responded, with apparent surprise, ‘oh’. The accused later commented that he was not allowed to attend his brother’s funeral because of TLP and H – which would seem to be a reference to the funeral of his brother LSP, which assumes a significance in terms of the disclosure amongst the complainants of their respective allegations and which I will come to in due course. 30 I pause here to indicate that I have not drawn any inference adverse to the accused from what he described in his interview as TLP or H’s conduct; the only relevance of what the accused said to the police on this topic is to inform my analysis of the questions of collusion and contamination. As I have said, TLP in particular was involved in a number of the conversations that KH had with AP about the accused. 31 The accused denied NV’s and KH’s allegations and, as to the latter, denied being discovered by CB in KH’s bedroom on the occasion the subject of count 1. 32 As to AP’s allegations (count 3 and its alternatives), the accused steadfastly rejected any suggestion of abuse. He said further that the newer shed closer to the homestead was not built until around 2011. 33 As to the alleged incident involving CS, I set out the accused’s remarks during interview: Q So you’re laying down on the couch, and you ask her to lay down next to you- A Mm. Q So you lay down face to face to sort of- A Mm. Q Enclose the kittens, and the kittens were running around in between you. She, she’s alleging that you’ve grabbed her hand and then you put it down your pants, and then you used her hand to fondle your penis, okay, those are the allegations that [CS] has made in relation to you. Do you wish to make any comment in relation to that. A Yeah, um, well I know that she wanted, she wanted to, um, um, I know that she wanted, er, um, um, be, um, er, er, have sex, and I’m, and I said, no. Q The, sorry- A She wanted to have sex then, and I said, no, and her mum came in, and said, no, um,, um, get out, and, yeah, all get out. -- 10 of 114 -- [2024] SADC 100 9 Q Well can you explain that a little bit more to me. A Well, er, well, she, she wanted to, um, play around with me, and I said no, yeah, it was on the, on the lounge, yeah, I know that. Yeah. Q Okay, so, so basically, what I’ve just described to you- A Mm. Q Is that what happened. A Yeah, not, not what, the way she’s saying, no. Yeah. Q Okay, so you went to the lounge room- A Yeah. Q You asked her, and there was kittens there- A Er, not kittens, no, er, it was only, er, I only had one little kitten, that’s all. Q Okay. A Yeah. Q Okay, so you said she’s wanting to have-– A But had her sisters there. Q Right. Can you explain that a little bit more for me. A Two, two, her other two sister, older sister and a little- Q Yeah. A And a younger sister. Q Yeah. Sure. A Yeah, and er, yeah, she just, yeah, she wanted-, and then, well she wanted- Q Explain that further to me, I-, again, this-, you’re saying that she wanted, sex- A Yeah. Yeah. Q She wanted to have sex with you. A Yeah, yeah. Q Can you explain what- A I- Q You mean by that. A Oh, she wanted to, er, ha-, have sex, and then, and then I said no. -- 11 of 114 -- [2024] SADC 100 10 Q What did she do. What did she say. A She, she, she wanted erm, play around with me, and I said, no, I, I don’t want, um, what, what are you doing, and, yeah, and she wanted to go, wanted to go-, I said I wanted to go out, and she wanted, no, with the, with the two sisters, and that- Q Mm hm. A And, er, yeah, and, and then the mother come in and said, er, get out, so yeah- Q How did you know that [CS] wanted to have sex with you. A Well, ‘cos she said, yeah. Q What did she say. A She wanted to have sex with me and I- Q Is that what she said. A Yeah. Yeah, and- Q Did she do anything. A No. No, er, ‘cos I stopped her, and, but when, when um, we went to Burra, or somewhere, um, she wanted to, um, join up with me again, and I was out the, out the, on his, er, it was her brother, um, what’s his name, um, oh what’s his name, I can’t think of his name, the, the older brother, and they, and she wanted to go out with me, and I, I wasn’t feeling good, and I sat outside, and I didn’t wanna, nothing to do with her, not after that, yeah. Q So how much longer, after the lounge room- A Oh this was- Q Incident- A Mu-, much later, yeah. Q Much later. A She wanted to, she wanted to be a, um, like, marry, or something, to me, or not. I said, no- Q How old were you at the time. A Oh I don’t know how old I’ll be, I was going to high, er, high school, er no, either high school or primary school at the time, yeah, and er, they said, no, go and have a dance with her, I said I didn’t wanna dance with her. Q Well how old was [CS]. A Oh, I’m not sure, but, mm, um, I’m not sure how old, how old she is, it’s so long ago, yeah. Q Mm hm. -- 12 of 114 -- [2024] SADC 100 11 A It was, um, maybe about, maybe, maybe 15 or 16, no, it will be 16 or- Q Mm hm. A Something like that, yeah, 16 or 17. 34 And a little later: Q I’m talking about the lounge room incident- A Yeah, oh yeah, yeah. Q Okay. So how old-, were you in primary school, were you in high school. A Er, I’m not sure if I was in primary school or high school at the time, yeah, I’m not sure. It might have been them, it might have been, er, maybe fi-, er, first year high school, I s’pose, I don’t know. Yeah, I’m not sure. Q But you said [CS’s] quite a bit younger than you. A Oh yeah, a bit- Q She’s saying- A Yeah. Q That she was- A Well she- Q Seven or eight years old when this happened. A Oh I think she was older than that, yeah. Yeah, she’s a bit older than that. Yeah. Q But she’s saying she was seven- A Yeah. Q Or eight years old when this happened with the kittens in the lounge room. A There’s only one kitten we had, yeah, and, no, she, she would have been older than that because, ‘cos her, um, her younger daughter would have been, er, younger sister, would have been about seven or eight years, yeah, ‘cos she’s middle age, yeah, and yeah, she would, her, um, older, er, [S], she would be um, maybe, er, maybe would, er, be, so be about 17, and she would have been about, about 16, I, I reckon, or, or 15, something like that, yeah. I’m not sure, yeah. Q You said she was around about 15 at the wedding- A Yeah. Yeah, I’m not sure, yeah- Q Yeah, so you’re saying, is there- A Yeah, I’m not sure- -- 13 of 114 -- [2024] SADC 100 12 Q Has there been only one incident in the lounge room- A Yeah. Q With [CS]. A Yeah. Q Okay, but are we talking about the same- A I think she wanted- Q Incident. A Yeah, and this is years later when she went to his wedding- Q Yeah, yeah- A And- Q But you’re saying, when you were- A She wanted to- Q In the lounge room with the kitten or the kittens- A Yeah, kitten. Q That she wanted to have sex with you then. A Yeah, yeah. Yeah. Q But you said you may have been at primary school and- A Er yeah, either- Q Or first, first- A Primary school- Q Year of high school. A It might have been, er, yeah, it might have been high school, yeah, I don’t know, not sure, yeah. I can’t remember. Q But she’s younger than you- A It was a long time- Q So she would have been- A Oh yeah, she’s a lot young than me, yeah. Q Right, and she- A Yeah. -- 14 of 114 -- [2024] SADC 100 13 Q Asked you for sex. A Yeah, yeah. Yeah, that’s right, and I didn’t want, I didn’t, and I said, no. Q So she would have been about seven or eight years- A And, and [CS]- Q Old when she asked you for sex. A And [CS] and [R] was there, um- Q In the lounge room with you. A Yeah, yeah, they were in that, in that, sitting on the lounge together, all there. Yeah, and they, they were saying, um, and I said, no, we’re not, nothing, not doing anything like that, and, no, and she wa-, she wanted to, and I said, no, I’m not going- Q Okay, so you tell me what she said to you, to make you think that she wanted to have sex with you when she- A Yeah. Q Would have been clearly a child- A Yeah. Q Of seven or eight years of age. A Yeah, she just wanted to have sex with me and I- Q Yeah, yeah, what did- A Yeah. Q She say. A Oh, I don’t know, she just said she wanted to have sex with me, and I said, no. I said, no. Q And you’re saying both her sisters were in the lounge there when she- A Yeah. Q When she asked you to have sex- A Yeah. Q With her. A Yeah, [CS] and [R]. Yeah. And then her mum- Q Do you wanna make any- A And then her mum came in and I told her to- -- 15 of 114 -- [2024] SADC 100 14 Q That what, sorry. A And then her mum came in and told her to get out, so, er, them to get out, so yeah, but er- Q In the lounge room. A Yeah, yeah, her mum, yeah- 35 It can be seen that the accused told Detective Rethus that there was an incident between him and CS in the lounge room at the Moorook property during which the accused claimed that CS told him she wanted to have sex with him. Although the accused’s responses to Detective Rethus’ questioning on this topic were somewhat discursive, he ultimately appears to have agreed with the suggestion by Detective Rethus that CS was a child at the time, noting that the accused is 10 years older than CS. 36 The accused went on to mention other occasions on which there appears to have been some suggestion that he and CS should have some sort of romantic involvement. Legal directions 37 The prosecution bears the onus of proving the guilt of the accused. The standard of proof is beyond reasonable doubt. The accused is not required to prove anything. He is presumed innocent of the charges unless and until the prosecution proves each element of the offences charged beyond reasonable doubt. In this respect, I keep in mind the comments of the High Court in R v Dookheea (2017) 262 CLR 402 at [41] concerning the standard of proof: …being satisfied of guilt beyond reasonable doubt does not simply mean concluding that the accused may have committed the offence charged or even that it is more likely than not that the accused committed the offence charged. What is required is a much higher standard of satisfaction, the highest known to the law: proof beyond reasonable doubt. 38 It is a corollary of the prosecution’s burden of proof that if, having considered all of the evidence, I am unsure where the truth lies in relation to a charge, my verdict must be not guilty. 39 Equally, the question for me is not whether I prefer the evidence of the complainants to the version given by the accused during his interview.6 Nor can I resolve the issues in dispute by making a choice as between the conflicting bodies of evidence.7 The accused may be found guilty if, and only if I am able to reject his denials as not reasonably possibly true and I am satisfied beyond reasonable doubt that the prosecution have proved each and every element of the offence under consideration. 6 Liberato v The Queen (1985) 159 CLR 507, 515. 7 De Silva v The Queen (2019) 268 CLR 57; (2019) 94 ALJR 100, [10]-[11]. -- 16 of 114 -- [2024] SADC 100 15 40 As the finder of fact, it is necessary for me to make an assessment of the truthfulness and reliability of the witnesses who gave evidence. It is of course my prerogative to accept or reject all or parts of a witness’ evidence. 41 At the conclusion of the prosecution case, the accused indicated that he would neither give nor call evidence in his defence. This was his right and I draw no adverse inference from the exercise of his right. I have not used his silence as a make weight or to fill any gaps or deficiencies in the prosecution case. To do otherwise would be to undermine the accused’s right to silence. Plainly enough, the fact that the accused elected not to give evidence does not alter the burden of proof which remains fixed on the prosecution; nor does it affect the weight that must be given to the presumption of innocence. 42 In deciding whether an offence has been proved beyond reasonable doubt, I must have regard to the whole of the relevant and admissible evidence on that charge. This will require me to evaluate any inconsistencies in the evidence of the complainants or as between their evidence (in relation to questions of contamination and collusion), together with any other shortcomings in the prosecution evidence which bear upon the discharge of its burden. The significance of any asserted inconsistencies or other shortcomings in the evidence going to a particular count are to be evaluated collectively and not compartmentalised. I indicate that I have taken this approach when considering the evidence of the witnesses. 43 In considering the evidence and whether I am satisfied to the criminal standard of the elements of the offences, I have brought an open and unprejudiced mind to bear. I remind myself of the importance of making a decision without sympathy, prejudice or fear. 44 I must give each of the charges the accused faces separate consideration by reference only to the evidence admissible in support of a particular charge. The charges do not rise or fall together. My verdict in relation to any one charge cannot dictate my verdict in relation to the other charges. Out of court discussions 45 The complainants gave evidence of discussions they have had amongst themselves and with other members of their family – in particular, TLP – primarily after LSP’s funeral in July 2019. 46 The evidence of these conversations was not before me to prove the truth of any facts expressly or impliedly asserted and I have not used the evidence for that purpose. The evidence is not admissible as prior consistent statements of the complainants and I have not used it to support the credibility or reliability of the complainants’ accounts in anyway. 47 As will be seen, because of the findings I have made, I am not satisfied that there is any admissible evidence of initial complaint within the meaning of s 34M -- 17 of 114 -- [2024] SADC 100 16 of the Evidence Act 1929 (SA) in relation to count 1 and it was not suggested by the prosecution that any disclosure made by NV or AP amounted to an initial complaint for the purpose of counts 2 or 3. 48 There are three permissible uses of the evidence of out of court discussions: first, the discussions are important on the defence case of contamination and, to the extent I must exclude it as a possibility, collusion; secondly, any demonstrated inconsistencies between what a complainant said out of court during these conversations, their witness statements and in court evidence may have an adverse effect on my assessment of the credibility and reliability of that complainant’s evidence; thirdly, the evidence may reveal contradictions or inconsistencies as between the complainants in relation to particular conversations and, depending on the findings I make, this too may have an adverse impact on my assessment of a complainant’s credibility and reliability. Forensic disadvantage 49 I say something now about the significant forensic disadvantage that I consider the accused confronts in defending allegations which date back many decades. Whilst s 34CB of the Evidence Act has no application to trials before a judge sitting without a jury,8 the principles enshrined in s 34CB emanate from the common law’s recognition of the impact of delay on an accused’s ability to test and challenge a prosecution case and to marshal evidence relevant to his or her defence of a criminal charge. It will be appropriate for a judge sitting without a jury to apply these principles when evaluating whether the prosecution has met its burden of proof in circumstances in which s 34CB would otherwise apply. 50 It is apparent from the brief chronology set out earlier, that the allegations against the accused date as far back as the mid-1970s. The critical events about which the complainants and CS gave evidence are all alleged to have occurred when they were young children. 51 The significant forensic disadvantage to the accused has a number of dimensions. For one, the lengthy passage of time may have impacted upon the accused’s memory of the relevant events and surrounding circumstances and hence impaired his capacity to instruct his lawyers and test the evidence. Had the trial been conducted more proximately to the alleged events, the accused may have been able to give or lead evidence as to his whereabouts or movements on a particular occasion, or who he might have been with, which might have revealed inconsistencies related to or implausible aspects of the prosecution case. The accused may have been in a position to marshal documentary or other evidence in support of his defence of the charges. 52 In addition, the accused’s parents, TP and BeP have since passed away, and it can be inferred that there are other witnesses who, but for the passage of time, 8 JGS v The Queen [2020] SASCFC 48, [146]; R v T, WA (2014) 118 SASR 382, [21]-[22]; R v R, PA [2019] SASCFC 19, [85]; Angus (a pseudonym) v The King [2024] SASCA 101, [45]-[46]. -- 18 of 114 -- [2024] SADC 100 17 may have been in a position to give evidence relevant to the defence case (such as the siblings and parents (to the extent they did not give evidence) of CS, KH, NV and AP). TP and BeP, as well as the others in the classes I have mentioned, were potentially very important witnesses as they were at Osborne or Moorook on each of the occasions the subject of a charged or uncharged allegation and might have been able to give evidence about the whereabouts of the complainants, CS, or the accused; the presence of others in the house; household dynamics generally and any limitations on the asserted opportunities for the accused to offend. 53 The passage of time may have also impacted the memory of witnesses.9 They may have become convinced that a particular event or incident took place even though it did not or may have forgotten or misremembered details that would be to the benefit of or otherwise significant to the defence case. The loss of the forensic tools available to the accused to test and challenge the evidence of the witnesses on account of the passage of time may in turn have impaired his ability to demonstrate the unreliability or lack of credibility in the evidence of the complainants and CS. 54 Accordingly, I am satisfied that the effluxion of time since the commission of the alleged offences has resulted in a significant forensic disadvantage to the accused that I will bring to account when scrutinising the prosecution evidence. Indeed, I consider that, for a variety of reasons including the age of all of the allegations the accused faces; the age of the complainants and CS at the time of the alleged offending against them (charged or uncharged); and various inconsistencies in their accounts, I must scrutinise their evidence with great care. Elements 55 The elements of indecent assault (count 1) contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) that must be proved by the prosecution are as follows: 1. The accused assaulted KH. An assault is the deliberate application of force to another. A deliberate touching is sufficient. 2. The assault occurred in circumstances of indecency which requires proof of a sexual connotation to the touching or force that constitutes the ‘assault’. It was not suggested that if I was satisfied beyond reasonable doubt that the accused made KH masturbate him, this conduct did not amount to an indecent assault. Consent is no defence to a charge of indecent assault against a child. 56 The defence case as to count 1 is that it has not been proved that the act occurred. The defence point to inconsistencies between KH’s evidence; the 9 I make it plain that the only relevant disadvantage in this respect is that experienced by the accused on account of the lack of precision in the evidence of the complainants and CS: Bates v The King [2023] SASCA 65, [55]-[60]. -- 19 of 114 -- [2024] SADC 100 18 evidence of CB, JP, NV and AP (as to discussions between them) and various other asserted deficiencies in KH’s evidence in support of the attack on the truthfulness and accuracy of her account. The defence also point to KH’s persistent attempts to extract information, in particular from AP, about her allegations against the accused and her willingness to ‘trade’ information with AP about what the accused had allegedly done to her if AP would disclose details of her alleged abuse by the accused. The defence contend that KH’s conduct reflects negatively on her credibility and reliability and also reinforces the possibility that she was seeking to bolster false, mistaken or incomplete memories by reference to external information. This submission is supported by reference to evidence that KH told NV that the accused had ‘touched her' and ‘rubbed up against her’ in a sleeping bag, which statements, it is argued, are inconsistent with KH’s evidence about count 1. 57 At the time of the alleged commission of count 2, s 58(1)(b) of the CLCA made it an offence to incite or procure the commission by any person under the age of 16 years of any act of gross indecency with or in the presence of the accused. The offence has the following elements: 1. The accused intentionally incited or procured NV to commit an act. To incite or procure an act is to ask another person to commit an act; encourage another person to commit an act; cause another person to commit an act; or take steps to produce the result that another person commits an act. In Ayles v The Queen (1993) 66 A Crim R 302, the accused was convicted of two counts of attempting to procure a child to commit an act of gross indecency. The attempt to procure was said at trial to be proved by the accused telling two teenage boys at a Church camp that he and his friends would watch videos and masturbate in front of each other; that the boys could masturbate in front of him and he would only join in if they really wanted him to. That is to say, the attempt to procure comprised of words spoken by the accused that were said to be an encouragement to the boys to masturbate in the accused’s presence. The accused appealed on the ground, amongst others, that the evidence was incapable as a matter of law of making out an attempt to procure. In dismissing this complaint, Legoe ACJ discussed the elements of the substantive offence of procuring an act of gross indecency. His Honour (at 306-307) adopted the dictionary meaning of ‘procure’ as: “to bring about by care or pains also (more vaguely) to bring about, cause, effect, produce. 2. to obtain by care or effort, to acquire. b. to obtain (women) for the gratification of lust…to act as a procurer or procuress. 3. to prevail upon, induce, persuade (a person) to do something.” -- 20 of 114 -- [2024] SADC 100 19 Legoe ACJ went on to observe that the purpose of the procuration (namely, to procure an act of gross indecency) may be inferred from the conduct of the accused and need not consist of an express invitation to perform such an act. Albeit in the context of an attempt to procure an act of gross indecency, his Honour said that the authorities clearly contemplated that words alone, without any physical application or force, could suffice as a procurement. In other contexts, it has been suggested that to procure an act requires some element of persuasion, inducement or influencing to commit the act.10 In my view, before this element could be satisfied, the prosecution must prove that the accused did something that encouraged, brought about, caused, or induced NV to touch his penis. It is not necessary that the accused used physical force or coercion to bring about that result; nor that there was an express verbal invitation or direction to NV to touch his penis. However, there must be a causal link between the proved conduct of the accused and the act said to be procured.11 2. NV was under 16 years old at the time the act was incited or procured. 3. The act intentionally incited or procured was ‘grossly indecent’. Whether an act is ‘indecent’ for the purpose of this element is to be determined according to contemporary community standards; however the act must have a sexual connotation. The act must not merely be indecent; it must be grossly indecent. 4. The accused intentionally incited or procured an act of gross indecency by NV with him or in his presence. 58 The defence case in respect of count 2 is essentially two-fold. First, it is submitted that the prosecution has not proved that the accused had NV masturbate him. The defence point to the possibility of collusion or contamination and what is said to be the troubling evolution in NV’s description of the incident with the accused from him ‘touching her’ to inciting or procuring her to masturbate him and her evidence that it was only when providing a statement to the police that she had a ‘realisation’ that the incident involved her touching the accused. Secondly, it is argued that, even if sexual activity of that kind occurred, the prosecution have not proved beyond reasonable doubt that the accused incited or procured NV to masturbate him as NV was unable to detail what the accused had said or done that resulted in her touching his penis. 10 R v Castiglione (1962) 63 SR (NSW) 393. 11 Attorney-General’s Reference (No.1 of 1975) [1975] Q.B. 773, 779-780. -- 21 of 114 -- [2024] SADC 100 20 59 With respect to count 3, the offence of maintaining an unlawful sexual relationship with a child consists of the following four elements: 1. The accused was over the age of 18 years at the time of two or more of the unlawful sexual acts particularised. 2. The complainant, AP, was under the age of 17 years at the time of two or more of the unlawful sexual acts particularised. 3. The accused knowingly maintained a relationship with AP during the period in which two or more unlawful sexual acts occurred. There is no dispute about the first three elements of this offence. In particular, there is no dispute that the accused maintained a relationship with AP even though he may have only seen her once or twice a year. He was her biological uncle. He was also a permanent resident of the Moorook property where AP would visit and during these visits, and in his capacity as her uncle, the accused would spend time doing activities with AP on and around the farm. 4. Whilst the above relationship was being knowingly maintained, the accused intentionally committed two or more of the unlawful sexual acts particularised in count 3 with or towards the complainant. ‘Unlawful sexual act’ is defined by s 50(12) of the CLCA as any act that constitutes, or would constitute a sexual offence if the time and place at which the act occurred were sufficiently particularised. ‘Sexual offence’ is in turn defined to mean, relevantly, an offence against Division 11 of the CLCA. In JJP v The Queen [2021] SASCA 53 at [157], Doyle JA, with whom Kelly P agreed, explained that the elements of a s 50 charge include the elements of the sexual offences constituted by the ‘unlawful sexual acts’. That is to say, in order to establish the commission of an ‘unlawful sexual act’, the prosecution must prove beyond reasonable doubt that the accused’s conduct would satisfy the elements of a ‘sexual offence’ as defined. 60 The unlawful sexual acts particularised in count 3 are said to make out the following sexual offences: 1. Particulars (a) and (d) – unlawful sexual intercourse. 2. Particular (b) – indecent assault. 3. Particular (c) – act of gross indecency. 61 Unlawful sexual intercourse (count 3 particulars (a) and (d), count 4 and count 7) consists of the following elements: -- 22 of 114 -- [2024] SADC 100 21 1. The accused had sexual intercourse with AP. Sexual intercourse is defined to include penetration of the labia majora by any part of the body of another person (count 3 particular (a), count 4) and fellatio (count 3 particular (d), count 7). 2. AP was under 12 years old at the time of the alleged offending. Consent is no defence to a charge of unlawful sexual intercourse.12 62 I have previously set out the elements of indecent assault and will not repeat them (count 3 particular (b) and count 5). 63 An act of gross indecency (count 3 particular (c) and count 6) with a person under the age of 16 years requires the prosecution to prove: 1. The accused intentionally committed an act in the presence of AP. 2. The act was ‘grossly indecent’. Whether an act is ‘indecent’ for the purpose of this element is to be determined according to contemporary community standards, however the act must have a sexual connotation. Moreover, any proved conduct must not merely be indecent; it must be grossly indecent. 3. AP was under 16 years old at the time the accused committed the act. 64 There was no suggestion on behalf of the accused that the conduct relied upon by the prosecution in support of the particulars of count 3 would not in fact make out these sub-offences. Rather, the defence contention was that it had not been proved beyond reasonable doubt that the accused committed any unlawful sexual acts against or in the presence of AP. The defence argued that AP was an unreliable witness who may have conflated sexual abuse by someone else with sexual abuse by her uncle. That is to say, the defence position was that I could not exclude as a reasonable possibility that what AP was describing was in fact sexual abuse perpetrated by someone other than her uncle, but which she has come to believe her uncle to be responsible for, perhaps influenced by the nature and extent of discussions she has had with KH and NV (and perhaps others) during which she became aware that they alleged the accused had sexually abused them. The defence also challenged the credibility and reliability of AP’s account on the basis of various inconsistencies in her evidence. Cross admissibility and other directions 65 In both his opening and final address, Mr Mulvihill, who appeared for the prosecution, submitted that the evidence of the complainants, and CS, was universally cross admissible for both improbability and propensity uses. 12 Criminal Law Consolidation Act 1935 (SA), s 49(7). -- 23 of 114 -- [2024] SADC 100 22 66 The cross admissibility of the evidence is governed by s 34P of the Evidence Act which provides: 34P—Evidence of discreditable conduct (1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)— (a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and (b) is inadmissible for that purpose (impermissible use); and (c) subject to subsection (2), is inadmissible for any other purpose. (2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if— (a) the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and (b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial. (3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose. (4) Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court. (5) The court may, if it thinks fit, dispense with the requirement in subsection (4). Improbability use 67 The touchstone for cross admissibility on a ‘similarity of account’ or ‘improbability’ basis is the peculiarity of common detail in the accounts of complainants (including, in this case, the ‘uncharged complainant’, CS). The working hypothesis of improbability reasoning is that, where collusion and contamination can be excluded as reasonable possibilities, it is inherently unlikely that two or more accounts of alleged offending would share qualitative similarities if the authors had independently made up or imagined their versions of events. That is because, as a matter of human experience, ‘so great is the range of human -- 24 of 114 -- [2024] SADC 100 23 behaviours that it is improbable that two persons could independently concoct or imagine the same details and peculiarities’.13 68 Of course, by virtue of s 34S of the Evidence Act, the possibility of collusion and concoction cannot be taken into account when considering the admissibility of evidence on this basis. 69 It is now well recognised that the admissibility of evidence for similarity of account reasoning is not to be determined by admeasuring those features of complainants’ accounts that are similar and dissimilar. Rather, the dispositive question is whether, as a matter of human experience, the nature and quality of the similarities in the evidence of multiple complainants are such as to be probative of the hypothesis that it is improbable that their accounts are explicable on the basis of independent concoction, imagination or mistake. The process of reasoning takes the following starting point (albeit requiring some modification in the case of historical allegations made by adults), explained by Kourakis CJ in MDM v The Queen (2020) 136 SASR 360 at [14]: The first, significant, improbability which arises in evaluating similarities in the independent accounts of different child complainants, is that two or more children known to the accused both happen to fabricate or imagine that they have been sexually abused and/or happen to fabricate or imagine, that the offences were committed by him. The significance of that improbability may be affected by the number of other persons known to them to whom they might have attributed the claimed offending. However, any additional similarities in the offending build on that initial improbability. 70 The greater the number of and more peculiar the similarities are between the accounts in question, the less likely it is that the accounts are explicable on the basis of independent concoction. 71 Whilst it is now beyond controversy that two or more accounts need not share ‘striking’ similarities or carry an ‘underlying unity’ to be admissible on this basis, it remains a pre-condition to using evidence for this purpose that the accounts possess such a degree of similarity that the probative value of the evidence for the ‘improbability’ hypothesis exceeds the prejudice associated with a single trier of fact adjudicating on multiple allegations of sexual abuse relating to different alleged victims. Indeed, it has been said that because of the nature of the prejudice that accompanies the cross admission of evidence of this kind, ‘it is important therefore that the similarity of the accounts very strongly exclude the possibility of independent concoction so as to minimise the risk of a miscarriage of justice on that score’.14 It is to be remembered however that, following amendments to s 34P(2)(a) of the Evidence Act by virtue of the Statutes Amendment (Child Sexual Abuse) Act 2021 (SA), which came into operation on 1 June 2022, the probative value of evidence admitted for this purpose need only outweigh its prejudicial 13 R v Bonython-Wright (2013) 117 SASR 410, [48]-[50]. 14 R v C,CA [2013] SASCFC 137, [61]. -- 25 of 114 -- [2024] SADC 100 24 effect; it is not necessary for the probative value of the evidence to do so by any particular, quantitative measure. 72 Importantly, it is the similarities, or dissimilarities, that bear upon the improbability of independent concoction that are material to the admissibility analysis.15 Although there are no fixed or rigid rules in this context, it is sometimes said that the characteristics of complainants, or the accused, and unremarkable features of the complainants’ association or involvement with an accused will rarely be probative similarities. Focus should fall primarily on the extent and peculiarity of shared details in the narratives of the alleged offending. Thus, in R v C,CA [2013] SASCFC 137 it was held that the fact that the three complainants were boys of a similar age; did not have a father figure in their lives; were all acquaintances of the accused’s son; and accompanied the accused on outings, were not probative similarities. A similar analysis can be seen in Slape v The Queen [2022] SASCA 91 at [59]-[67] and, moreover, it is clear from the approach there taken that care is required in relying too heavily on commonalities in the mere nature of sexual acts said to be undertaken with multiple complainants.16 73 That is not to gainsay, however, that these features or characteristics of the accounts of multiple witnesses are relevant to the improbability analysis, albeit they are not determinative. In McRoberts v The King [2024] SASCA 92 at [52]- [54], the Court of Appeal rejected a contention that C,CA stands for the proposition that a complainant’s account of their relationship with an accused will always be irrelevant: We do not consider that R v C, CA is authority for the proposition that a complainant’s account as to his or her relationship with an accused person, and any similarity as between complainants as to that fact, is always irrelevant in evaluating the admissibility of similarity of account evidence. That is too absolute a proposition. It will depend upon the circumstances of each case, including matters such as the nature of the relevant relationship, how that relationship features in a complainant’s narrative of the alleged offending, and the similarities that may exist in the complainant’s accounts as to how an otherwise orthodox relationship between an adult and a child may have been corrupted or manipulated by an accused person to commit the sexual offences. As explained in R v C, CA (and other subsequent authorities)17 the analysis in similarity of account reasoning must focus on those similarities between the complainants’ narratives of the alleged sexual abuse. However, the analysis is not confined to a consideration of similarities between the physical acts of sexual abuse, or even to the immediate setting in which they occurred. That is because the relationship between an accused person and a complainant, and other features of that relationship may well form an integral part of a complainant’s account as to the alleged offending. It may inform the circumstances and context in which the alleged sexual offending occurred. It may also be a significant aspect of the complainant’s narrative as to the manner an accused person corrupted an otherwise orthodox relationship to enable the commission of the alleged offences. 15 MDM v The Queen (2020) 136 SASR 360; Slape v The Queen [2022] SASCA 91. 16 See also, in a different context, Phillips v The Queen (2006) 225 CLR 303, [56]. 17 See for example: DES v The Queen [2020] SASCFC 32 at [70] per Doyle J; Slape v The Queen [2022] SASCA 91. -- 26 of 114 -- [2024] SADC 100 25 In this way, a common relationship between an accused person and multiple complainants may raise the improbability that multiple children happen to fabricate or imagine that they were sexually abused by the accused. Ultimately, the determinative question is whether the similarities between complainants’ accounts are capable of bearing upon the improbability of fabrication, coincidence or collusion such as to render the evidence more probative than prejudicial. 74 The approach taken in McRoberts is consistent with what can be discerned from the earlier decision of the Court of Appeal in R v Marshall [2023] SASCA 105 - a case in which the two complainants had, at different times, been step- daughters of the accused and who alleged broadly similar sexual offending against them over a period of years, including at the accused’s workplace. With reference to the weight to be afforded to the characteristics of the complainants, the nature of their relationship with the accused and their respective narratives of the alleged offending when considering the cross admissibility of their evidence for improbability reasoning, the Court of Appeal said at [162]-[163]: Whilst what each complainant described by way of the particular offending is relevant, it is necessary to look to the whole of their accounts, in context. No longer is it necessary to point to “special”, “particular” or “unusual” features to establish admissibility. Rather, one may commence with the fact that the complainants were both female children, describing allegations of sexual abuse committed by their step-father, during the period he was in a relationship with their mothers. Contrary to the Director’s submission, however, that alone is not necessarily sufficient to justify cross-admissibility on the basis of similarity of account reasoning. In this case, one may also bring to account that both girls were describing as part of their accounts that they were pre-pubescent, and that the alleged offending was preceded by what may be described as a period of grooming. The offending against each girl involved a number of similarities, and was associated with, at the least, showing a sex toy. Each was rendered submissive by a combination of intimacy and warnings not to tell anyone. In addition, in the circumstances of this case, the number and regularity of the alleged incidents each week, when combined with the similar locations selected (home and office), often orchestrated in brazen circumstances, were capable of bearing on the improbability of coincidence unless what the complainants were describing had occurred to them. 75 The reasons of the Court in McRoberts and Marshall confirm that the organising principle is that one must have regard to the whole of the witnesses’ accounts for the purpose of determining whether there is such a degree of similarity to be probative of the improbability of the hypotheses of independent concoction or imagination. As the Court of Appeal explained in Slape at [67] having identified the suggested similarities between two accounts ultimately held not to be cross admissible: It should not be thought from the above consideration of the suggested similarities and dissimilarities in the complainants’ respective accounts of the offending against them that the Court’s task is one naturally amenable to an analytical approach. While a close examination and comparison of the respective accounts is appropriate, the Court is ultimately required to stand back and make an evaluative judgment as to the overall probative value of the similarities in the complainants’ accounts, and as to whether that probative value substantially outweighs the prejudicial effect of the evidence. As mentioned earlier, the prejudicial effect lies primarily in the antipathy to the accused that -- 27 of 114 -- [2024] SADC 100 26 the multiple allegations may engender, and the potential for the finder of fact to be distracted from any defects and frailties in the evidence bearing directly upon the individual charges. Collusion and contamination 76 As I have said, collusion and ‘concoction’ are no longer considerations relevant to determining the admissibility of evidence for similarity of account or propensity reasoning. 77 However, if I conclude that the evidence of some or all of the complainants and CS is cross admissible, it will in due course be necessary for me to determine whether the prosecution have excluded the possibility of collusion and contamination before using the evidence for this process of reasoning. 78 It is important to acknowledge the conceptual differences between ‘collusion’ on the one hand and ‘contamination’ on the other. 79 Collusion implies that two or more witnesses have effectively ‘got their heads together’ or arrived at an agreement or a plan with each other to falsify allegations of criminal behaviour against an accused. Collusion may also involve a more subtle meeting of the minds that reflects something of a hybrid of collusion and contamination. In a case involving multiple witnesses making similar allegations against an accused, it is self-evident that the similarities cannot be probative of the improbability of wrong or false allegations if it is a reasonable possibility that the witnesses have ‘hatched a plan’ or otherwise colluded to make false allegations. 80 I earlier mentioned that counsel for the accused expressly eschewed any suggestion of collusion. Rather, counsel argued that the fact and extent of conversations between the complainants gave rise to the possibility that their memories had been contaminated by information they had acquired from each other or, indeed, other family members. Nonetheless, it is imperative that I make an independent assessment of whether the prosecution has disproved collusion beyond reasonable doubt. 81 Contamination, which is concerned with the conscious or subconscious altering of a witness’ memories because of information they have learnt or received from others, must also be excluded as a possibility before similarities between multiple accounts can be used for improbability reasoning. That necessarily follows because if there is a possibility that, for example, NV’s recollection of the incident with the accused in the lounge room at Moorook has been contaminated by information she received from KH, any similarities between their accounts would cease to be probative of the unlikelihood of imagination or concoction. The concept of ‘contamination’ acknowledges the malleability of human memory both organically and when a person is subjected to any form of external influence, including exposure to third party information that has the capacity to alter a person’s perception of a historical event. -- 28 of 114 -- [2024] SADC 100 27 82 As will become apparent, I have addressed the question of collusion when dealing with each count. Whilst my reasons are structured in this way, I have conducted an overarching analysis of the possibility of collusion by reference to the combined effect of the evidence of each of KH, NV and AP so as to avoid fragmentation of the evidence on this topic. 83 I will return to these issues in due course. The degree of similarities in this case 84 To return to the question of admissibility, the prosecution relied upon the following features of the evidence of the complainants and CS in support of its submission that the evidence was cross admissible for improbability reasoning: 1. The familial relationship between KH, NV, AP and the accused and that, in the case of CS, there was a familial connection albeit through CS’ sister’s marriage to one of the accused’s brothers. 2. The complainants and CS were all between the ages of 5 and 12 when allegedly abused by the accused. 3. The complainants and CS allege sexual abuse by the accused at the Moorook property, noting that, with respect to KH, the only charged act (count 1) is alleged to have occurred at her parents’ Osborne residence. 4. As to KH, NV and AP, the accused was in a position of trust and authority vis a vis the complainants and his alleged abuse involved the exploitation of that position. Whilst there was a less direct familial connection between CS and the accused by virtue of the marriage between CS’ sister and the accused’s brother, the accused nonetheless occupied a position of trust or power in relation to CS because of their age difference. 5. The opportunistic and brazen nature of the offending which carried a high risk of detection given that there were numerous other adults and, in some cases, children at the locations of alleged abuse. Of course, in relation to the horse riding incident with KH and the horse stable incident with AP, there was less of a risk of detection given those incidents are said to have taken place some distance from the Moorook homestead and whilst the accused was alone with the complainants. 6. Again with the exception of the ‘horse riding incident’ involving KH, the complainants and CS do not allege that the accused engaged in what might be colloquially described as a grooming process or any attempt to normalise matters of a sexual nature. The ‘horse riding’ incident is alleged to have occurred a number of years before count 1, such that there was, in any event, an absence of typical ‘grooming’ behaviour with respect to KH as well. This is said to be an unusual shared feature of the evidence. -- 29 of 114 -- [2024] SADC 100 28 7. The complainants and CS all allege that the accused forced them to touch his penis. The accused lured CS into the lounge room at Moorook under the ruse of playing with kittens before taking her hand and placing it down his pants and on his genitals. As to KH, the accused had called her over to his sleeping bag during an overnight stay at Osborne and, after she got in with him, placed her hand on his penis to masturbate him. After NV happened upon the accused masturbating in the lounge room at Moorook, he said something to her which caused her to masturbate his penis. AP ventured into one of the sheds at Moorook after seeing the accused drive in on some farm machinery. After AP entered the shed, the accused approached her with his penis exposed and had AP masturbate him. 8. With the exception of AP, the complainants and CS do not suggest any overture by the accused to ensure their silence or to restrain the possibility of a complaint. Contrastingly, AP alleges that the accused sternly, perhaps even aggressively, implored her not to tell anyone of his alleged misconduct under the pretence that it was ‘their secret’. 85 It may be accepted that each of the complainants, and CS, were all young girls who had a familial relationship with the accused and that it was in the context of opportunities to be alone with the complainants, and CS, created by that relationship that the alleged offending occurred. Whilst the complainants and CS do not describe an overt deployment by the accused of his role as ‘uncle’ or older ‘family figure’ in the alleged offending, it is inherent in the nature of the circumstances described by the witnesses that the trust and confidence they had in the accused because he was known to them in a family context helped facilitate their compliance or submission to his conduct. 86 Equally, the alleged offending against CS, KH, NV and AP was opportunistic although different types or degrees of opportunism emerge from their allegations. As to count 1, KH alleges that she went into the kitchen of the Osborne residence at night to get a drink or something to eat and it was by this matter of happenstance that the accused was able to call her over to his sleeping bag. NV alleges that she essentially happened upon the accused whilst he was masturbating. CS alleges that the accused enticed her into the lounge room at Moorook to play with kittens and AP alleges that the accused manufactured scenarios (at least in respect of particulars (a), (c) and (d)) to be alone with her and carry out acts of sexual abuse. There is a greater degree of spontaneity – and perhaps less planning – on the allegations of KH and NV as the abuse was responsive to situations that arose other than by design by the accused when, perhaps unexpectedly, those two complainants came across the accused when he was alone. Nonetheless, sitting behind all of the alleged offending is the accused’s willingness to create or exploit opportunities to be alone with the complainants in order to commit brazen and risky acts of sexual abuse. 87 As to the particulars of the sexual abuse, KH, NV, AP and CS each allege that the accused importuned or forced them to touch his penis. Whilst there are -- 30 of 114 -- [2024] SADC 100 29 nuances to each of the accounts given by the complainants and CS that do not find perfect analogues in each other version of events, there is an obvious thematic and factual coincidence across the accounts. KH, NV and CS allege that to be the only form of sexual abuse that occurred (leaving aside what I will later describe in more detail to be the ‘horse riding incident’ with KH); AP on the other hand alleges digital penetration, compelled fellatio, and the accused masturbating to ejaculation in her presence. As I have said, AP is, in addition, the only witness who alleges that the accused implored her to maintain secrecy over their interactions and behaved in an overbearing or somewhat aggressive manner. 88 Indeed, the fact that CS and NV allege only one incident of sexual abuse; and that KH alleges only one overt episode of sexual abuse is itself a relevant and somewhat peculiar similarity; however, it must be accepted that with respect to CS at least, the accused does not appear to have had any further opportunity to commit an act of sexual abuse which does tend to suggest that this feature of CS’ account is moreso the consequence of objective circumstances than an inherently similar narrative detail. 89 Similarly, none of the complainants or CS suggest that the accused sought to pre-dispose them to or normalise sexual activity with them before taking the brazen step of engaging in overt sexual activity. There were, for example, no sexualised discussions with the complainants and CS; no endeavour to build a relationship characterised by secrecy; no progression from subtle or innocuous touching to sexual interference. Even in the case of KH, the ‘horse riding incident’ was some five to seven years prior to the alleged commission of count 1. Put another way, each of the complainants essentially allege that the sexual abuse to which they were exposed came out of the blue and, other than in the case of AP, was never again repeated. 90 Whilst there are a number of apparent differences across the descriptions of alleged offending, and the surrounding circumstances, described by each of the witnesses under consideration, standing back and making an evaluative judgment about the nature and extent of the similarities across the evidence, I am satisfied that there is a substantial and overarching commonality to the accounts given by KH, NV and CS that I consider imbues their evidence with the requisite degree of similarity to be probative of the improbability that their allegations have been imagined or independently concocted. In particular, I consider that the shared features in their accounts concerning the circumstances and manner in which the accused, as a then young man, came to have three pre-pubescent girls with whom he had a familial connection masturbate or touch his penis, in brazen and generally opportunistic situations carrying a substantial risk of detection given the near presence of multiple other adults, is highly probative of the improbability of independent concoction or imagined allegations. 91 I consider that the probative value of the evidence outweighs its prejudicial effect, which really distils in this case to the risk of using the evidence for a propensity purpose (subject to the matter I next address in my reasons); reasoning -- 31 of 114 -- [2024] SADC 100 30 that the accused is a ‘bad person’ or the sort of person likely to have committed crimes or the charged acts based purely on the multiplicity of allegations (mere propensity reasoning); reasoning that even if I am not satisfied that any particular charge has been proved to the criminal standard, the accused must be guilty of something because multiple witnesses have alleged he committed sexual acts against them (the risk of substitution); and / or reasoning that the mere fact that four witnesses have said the accused sexually abused them means the accused is guilty. I have not reasoned in any such way and have directed myself as to these impermissible uses of the evidence as required by s 34R of the Evidence Act. 92 I am further satisfied that the permissible use of the evidence for similarity of account reasoning can be kept sufficiently separate and distinct from the impermissible uses with which s 34P is concerned so as to remove the risk of misuse. The conceptual use of the evidence of multiple complainants for improbability reasoning is very different to propensity reasoning which takes as its starting point the intermediate conclusion that the accused has a pre-disposition or a tendency to act in a particular way or have a particular state of mind. The different analytical process involved in improbability reasoning creates an obvious distinction from propensity reasoning and helps to maintain the clear dichotomy between permissible and impermissible uses. 93 Accordingly, the evidence of CS, KH and NV is, I conclude, cross admissible. 94 With respect to count 3 (and its alternatives), I am not satisfied that the evidence of KH, CS and NV is cross admissible on a similarity of account basis having regard to the nature of the allegations made by AP and vice versa. In my view, the difference between the extent and course of sexual abuse alleged by AP on the one hand and KH, CS and NV on the other is a stark and qualitative dissimilarity, notwithstanding that AP’s narrative of the conduct the subject of count 3 particular (b) resonates in many respects with the conduct alleged by KH, CS and NV. 95 The effect of this conclusion (subject to what follows) is that I will disregard the evidence of CS, KH and NV when considering count 3 and vice versa. It also follows that any adverse finding I make in relation to the version of events given by the accused during his interview concerning CS, KH or NV must not be allowed to influence my assessment of whether his denials of offending against AP are reasonably possibly true. Sexual interest 96 I turn then to whether there is a permissible propensity use of the evidence of the complainants and CS. 97 The prosecution argued that the evidence of CS and the complainants was admissible to demonstrate that the accused had a sexual interest in young girls with whom he had a familial connection and which he was prepared to act on whenever -- 32 of 114 -- [2024] SADC 100 31 the opportunity arose by engaging in brazen acts of sexual abuse carrying a high risk of detection. 98 The fact in issue to which this sexual interest is said to be relevant is therefore the commission of each of the charged acts. In Hughes v The Queen (2017) 263 CLR 338 at [40], the High Court explained the juridical theory behind the admission of evidence of this kind in multiple complainant sex trials: In the trial of child sexual offences, it is common for the complainant’s account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. 99 The Court went on to observe that it is not necessary that propensity or tendency evidence, by itself, makes more likely the occurrence of the facts that constitute the elements of the offence charged (at [40]): It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible. 100 The principles governing the determination of admissibility were then drawn together in the following passage at [41]: The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as ‘underlying unity’, ‘pattern of conduct’ or ‘modus operandi’. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged. 101 The two stage approach set out by the Court in the above extract first requires identification of the propensity said to be revealed by the evidence and the extent to which it is demonstrated by the evidence. In the recent decision of TL v The King [2022] HCA 35; (2022) 275 CLR 83 at [29], and in the context of s 97 of the Uniform Evidence Acts, the High Court observed that: Other things being equal, evidence of a more generally expressed tendency is less likely to satisfy the threshold of ‘significant probative value’. That is because, while generalised tendency notices may be supported by a broader array of evidence, that evidence will often -- 33 of 114 -- [2024] SADC 100 32 not be significantly probative of the fact or facts in issue. The specificity of the tendency has a direct impact on the strength of the inferential mode of reasoning. 102 The second step is to examine whether the propensity so demonstrated supports proof of a fact in issue. In this respect, the capacity of the evidence to demonstrate not only the existence but the continuity of the relevant interest or attraction, as well as a preparedness to act on the interest or attraction over time, is important to an assessment of the probative value of the evidence. It cannot always be safely assumed that a person’s sexual interests or instincts will have remained unchanged over an extended period. Some caution is required before reasoning that a demonstrated sexual interest in a particular person or class of people at one point in time was necessarily extant at a much earlier or later point in time. Whilst much will depend on the specific circumstances of the case and features of the evidence, the remoteness of a demonstrated sexual interest to a charged act may deprive it of the probative value required for admission. 103 An example is supplied by McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045. There, the appellant, an acolyte, was charged with six sexual offences against A, an altar boy, allegedly committed between November 1995 and March 1996. At the appellant’s trial, evidence was led from B and C, who were boarders at a College in 1985 where the appellant was an assistant housemaster. Both B and C gave evidence of the appellant sexually abusing them in the context of consoling them when they were homesick. The evidence of B and C, in combination with the evidence of A, was left to the jury as evidence of the appellant’s sexual attraction or interest in young teenage males. 104 The High Court held that the evidence of B and C was wrongly admitted. In so finding, the following helpful observations were made by the plurality at [26]- [27]: As explained in Hughes, assessment of the probative value of tendency evidence requires the court to determine the extent to which the evidence is capable of proving the tendency. Assuming the evidence has the capacity to do so, the court must then assess the extent to which proof of the tendency increases the likelihood of the commission of the offence. The tendency may be to have a particular state of mind or to act in a particular way. A mature man's sexual interest in young teenage boys is a tendency to have a particular state of mind. The evidence of "B" and "C" was capable of establishing that the appellant had such an interest. In this Court, it was not disputed that it is an interest of a kind that is likely to be enduring. Proof of the appellant's sexual interest in young teenage boys may meet the basal test of relevance, but it is not capable of meeting the requirement of significant probative value for admission as tendency evidence. Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value. The tendency on which the prosecution relied was to act on the appellant's sexual interest in male children in their early teenage years who were under his supervision. The evidence demonstrating that tendency was confined to "B"'s and "C"'s evidence of events that occurred in 1985. As Meagher JA noted, there was no evidence that the asserted tendency had manifested itself in the decade prior to the commission of the alleged offending against "A". -- 34 of 114 -- [2024] SADC 100 33 105 Concluding that the evidence was inadmissible, the joint reasons held at [30]- [32]: It may be accepted that the evidence that the appellant had acted on his sexual interest in young teenage boys on the occasions with "B" and "C" is relevant to proof that he committed the offences alleged by "A", but it is not admissible as tendency evidence unless it is capable of significantly bearing on proof of that fact. In the absence of evidence that the appellant had acted on his sexual interest in young teenage boys under his supervision in the decade following the incidents at the College, the inference that at the dates of the offences he possessed the tendency is weak. Moreover, where, as here, the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together. The suggested link in this case is the appellant's tendency to act on his sexual interest in young teenage boys who were under his supervision. The supervision exercised by the appellant as assistant housemaster in 1985 over vulnerable, homesick boys in his care has little in common with the supervision exercised in his role as acolyte over "A", an altar boy, when the two were at the Cathedral for services in 1995-1996. The evidence does not suggest that "A" was vulnerable in the way that "B" and "C" were vulnerable. The tendency to take advantage of young teenage boys who sought out the appellant in the privacy of his bedroom is to be contrasted with "A"'s account that the appellant followed him into a public toilet and molested him. "B"'s and "C"'s evidence established no more than that a decade before the subject events the appellant had sexually offended against each of them. Proof of that offending was not capable of affecting the assessment of the likelihood that the appellant committed the offences against "A" to a significant extent. It rose no higher in effect than to insinuate that, because the appellant had sexually offended against "B" and "C" ten years before, in different circumstances, and without any evidence other than "A"'s allegations that he had offended again, he was the kind of person who was more likely to have committed the offences that "A" alleged. The tendency evidence did not meet the threshold requirement of s 97(1)(b) of the Evidence Act. This conclusion makes it unnecessary to address the submissions respecting s 101(2) that Act. 106 Returning to the present case, the relevant propensity or disposition of the accused said to be demonstrated by the alleged commission of counts 1, 2 and 3, and the evidence of CS, is an interest in or attraction to young girls with whom he has a familial connection and which he was prepared to act on by the commission of brazen and risky sexual acts. The argument advanced by Mr Mulvihill was that, if established, the accused’s sexual interactions with KH, CS, NV and AP strongly reveal a sexual interest in young girls comprising this cohort and upon which he was prepared to act when the opportunity arose, which was somewhat infrequently given that throughout the relevant period the accused’s only access to his nieces and CS came about during family visits to Moorook and, in respect of KH, when the accused very occasionally stayed at Osborne with his parents. The prosecution contend that this interest existed from at least the mid 1970s and persisted through to the early 2000s, when the charged acts against AP were allegedly committed. 107 With the exception of the evidence of CS and the evidence of KH concerning the ‘horse riding’ incident, the prosecution rely upon evidence of the charged acts -- 35 of 114 -- [2024] SADC 100 34 in support of its contention that the accused had a sexual interest in young girls. This raises a question concerning the extent to which it would be necessary for me to find one or more of the charged acts proved beyond reasonable doubt before I could factor any such conduct into the propensity matrix. 108 In The Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15, the High Court held that it is not necessary for the conduct said to be demonstrative of a relevant propensity to be proved beyond reasonable doubt before it can form part of the propensity or tendency ‘matrix’, even where the conduct relied upon is the subject of a charge. This is because, whilst the elements of an offence must be proved beyond reasonable doubt, proof of a propensity or tendency involves proof of an intermediate fact which itself serves as circumstantial support for proof beyond reasonable doubt of charged conduct. It is not necessary therefore that a tribunal of fact (whether judge alone or jury) employ a sequential approach to proof of a tendency dependent, in part, on charged conduct in a manner that would require satisfaction beyond reasonable doubt of the charged conduct before it could be factored into a finding concerning the existence and extent of a tendency; indeed, that would render the evidence inutile for this purpose. 109 Endorsing the comments of the New South Wales Court of Criminal Appeal in JS v The Queen [2022] NSWCCA 145 at [43], the High Court held in Benjamin Roder at [26] and [27] that such an approach does not involve any dilution of the burden of proof that attaches to the elements of an offence: In JS v The Queen, the New South Wales Court of Criminal Appeal recognised the potential for such directions to undermine the necessity for proof of each charge beyond reasonable doubt but concluded that that concern should be addressed by the careful formulation of directions. Basten A-JA (with whom Hamill and Dhanji JJ agreed) addressed a complaint about circular reasoning and how the directions should be formulated as follows: “Insofar as the applicant complained that the reasoning [which the trial judge directed the jury to undertake] was 'incoherent' [or circular], this was premised on the assumption that the Crown, in a linear process, sought to prove the commission of an offence (at a standard of proof less than beyond reasonable doubt), and then relied on that finding to prove the tendency, and then relied on the tendency to prove the offence. However, this does not accurately represent the reasoning process involved. It is the tendency that is relied on as circumstantial evidence in proof of the charge on the indictment. The proper approach is to have regard to all the evidence ... relied on in proof of the tendency as evidence of the tendency alleged. To the extent that the jury is satisfied of the existence of the tendency, the tendency may be relied on in proof of the charge. Given this process, it is preferable not to direct a jury to make findings as to the conduct relied on in proof of a charge. Rather the jury should be directed with respect to finding the alleged tendency.” (emphasis added) Two matters should be noted about this passage. First, it correctly identifies the alleged tendency as an intermediate fact that is to be proved in its own right and then deployed in aid of the proof of each charge. For a tribunal of fact to find that an alleged tendency has been proved to a lesser standard by relying on, inter alia, direct evidence of charged acts, and then deploying that tendency in determining whether the charged acts have been proved -- 36 of 114 -- [2024] SADC 100 35 beyond reasonable doubt, does not involve circular or incoherent reasoning. Instead, it simply means that the jury may consider the same evidence “at different stages of its deliberations with a different onus of proof and for a different purpose”. Second, as noted, his Honour accepted that there was a risk of undermining the jury's understanding of the necessity for proof of the elements of the charge beyond reasonable doubt but identified that one means of minimising that risk was to avoid giving a tendency direction that invited the jury to make findings as to the conduct relied on in proof of the charge. Instead, the direction should identify the evidence said to support the alleged tendency and invite the jury to consider whether that tendency has been established. Otherwise, in JS, Basten A-JA noted that the balance of the summing up given to the jury meant that there was “no risk ... that the onus and standard of proof were not understood and properly applied”. 110 Applied to the circumstances of this case, I would consider the combined effect of the evidence I accept going to the uncharged conduct and counts 1, 2 and 3 in deciding whether I am satisfied that the accused had a sexual interest in young girls that he was prepared to act upon. It would not be necessary for me to make findings that the accused engaged in any of the charged or uncharged acts beyond reasonable doubt before reaching an intermediate conclusion that the accused had a sexual interest in young girls that he was prepared to act upon; however, I would nonetheless have to be satisfied that the evidence I accept helps demonstrate the relevant propensity and that would necessarily require me to be satisfied that sexual activity demonstrative of the asserted propensity took place. If I was satisfied that the accused had a propensity of the relevant kind, that would be circumstantial evidence that I could have regard to when considering whether any of the charged acts were proved beyond reasonable doubt. 111 The evidence in this case falls into two, potentially three, groups. The first, which embraces the evidence of CS and KH, has the capacity to demonstrate that, in or around 1975/1976 to 1981, and as a 16-23 year old, the accused had a sexual interest in pre-pubescent girls with whom he had some familial relationship. The evidence of KH and CS, if accepted, demonstrates the accused was prepared, on two or three occasions, to act on that interest and, on at least two occasions, to do so by the commission of brazen sexual activity which carried with it a not insignificant risk of detection. 112 The evidence of NV, if accepted, tends to suggest that in or around 1990/1991, when he was in his early thirties, the accused had a sexual interest in his niece that, on one occasion, he was prepared to act on. 113 The evidence of AP, if accepted, tends to suggest that in the early 2000s, when the accused was in his early to mid-40s, he had a sexual interest in another niece that he was prepared to act on multiple times. 114 Each group of offences are temporally quite separate and distinct from the others. On the other hand, the link between each group of alleged offending is the nature of the relationship between the accused and the complainants / CS and, to -- 37 of 114 -- [2024] SADC 100 36 some extent, the particular way in which that interest manifested, with the accused allegedly orchestrating situations in which all four witnesses touched his penis. 115 However, the accused was also a much younger man at the time of the alleged commission of count 1 and the uncharged acts with KH and CS respectively. At one level, the extent to which the evidence is capable of demonstrating that the accused had a sexual interest in young girls in his late teens / early 20s, early 30s and early to mid-40s, might be thought to support the conclusion that the interest was deeply entrenched and enduring. This in turn may be thought to fortify the suggestion that the interest shown at an early point in time was in fact continuing throughout the period over which counts 2 and 3 are said to have been committed. Contrastingly, the substantial evolution in the accused’s personal circumstances over the 30 year period covered by the charged and uncharged acts, and the relatively limited number of occasions on which his interest is said to have been acted on between 1975 and 2002 are not insignificant countervailing considerations. 116 In my view, the passage of time; the change in the accused’s circumstances; and the infrequency with which the accused is said to have acted on his sexual interest between 1975 and 1991, combined with the further hiatus of 10 or more years before the alleged commission of count 3, precludes a finding that the evidence of the complainants and CS meets the test for admission prescribed by s 34P(2)(b) of the Evidence Act. 117 Even confining the scope of the evidence that might be relied upon for propensity purposes to the evidence of KH and CS, I remain unpersuaded that the evidence has the strong probative value required for this particular use. Including NV into this ‘propensity matrix’ does not alter my view. The somewhat isolated and remote nature of the incidents alleged by those three witnesses, to my mind, is an obstacle to concluding that the evidence is capable of powerfully demonstrating that the accused had and was willing to act on a sexual interest in young girls generally over the course of several decades and that conclusion is fortified again by the further delay between the alleged offending against NV and AP. 118 For these reasons, I reject the submission of the prosecution that the evidence of the complainants and CS is admissible for a propensity purpose and I have not used the evidence to so reason. Reference to abuse alleged by others 119 Some of the evidence given by KH, NV and AP suggested that other ‘cousins’ had also implicated the accused in sexual abuse of them. To the extent any such suggestion was made directly or indirectly in the course of the evidence, I have completely disregarded that evidence other than, in accordance with the defence case, when considering questions of contamination and in my assessment of whether the prosecution has disproved collusion beyond reasonable doubt. Plainly enough, to the extent any such conversations or allegations were revealed, the evidence cannot be used to prove that other sexual abuse took place. I make it -- 38 of 114 -- [2024] SADC 100 37 clear that I have not assumed, nor reasoned, that the accused has committed uncharged sexual acts against other members of his family or that he is a bad person or the sort of person likely to have committed one or more of the charged offences. There is no permissible use of this evidence other than to assist in evaluating the hypotheses that the allegations against the accused are possibly explained by a common design between the complainants to falsify allegations against him or that the complainants’ memories have possibly been consciously or subconsciously influenced by information that was being disseminated amongst their family units more generally. Evidence of CS 120 In light of my earlier conclusion in relation to cross admissibility, it is convenient to begin with the evidence of CS whose allegation against the accused may be the earliest, or one of the earliest, incidents in time. 121 CS is the sister of JMP, who was married to WJP – the third oldest of the accused’s siblings. CS was born in March 1968 and was 55 years old at the time of giving evidence. 122 JMP and WJP married in May 1974 and CS’ brother, S, became friends with the accused’s youngest brother, RP, as a result of which CS came to know the accused and the Moorook property. 123 CS gave evidence of visiting Moorook on two occasions about a year apart in the January school holidays. 124 She described a sexual incident involving her and the accused occurring in the lounge room at Moorook on the second of the two visits, when she was seven or eight years old, placing the incident in or around March 1975 to pre-March 1977, when CS would have turned nine. The accused would have been between the ages of 16 to 18 during this period. 125 CS described the incident in these terms: A. I was outside playing and [KMP] was there. It was just us and [KMP] asked me if I wanted to see some kittens and of course I did, so he got these kittens and took it inside and I followed him in to what I believe would have been the lounge room. There was a sofa there and so he lay on the sofa, his back against the sofa. He had the kittens in front of him and asked me to, like lay down on the sofa with him so we were facing each other. Then he reached out and grabbed my hand, my right hand. I thought he was grabbing it so he can help me pat the kittens or something, so I didn't struggle against it and then the next thing he shoved my hand down his pants, his jeans which he'd obviously opened at some stage and I hadn't noticed into his underpants and moved my hand around and I could feel something big and hard and hairy and I really did not know what it was that I was feeling. I knew I didn't like it and it wasn't right and he said to me 'Now you show yours' and I shouted 'no' and I pulled my hand away and rolled over on the sofa and ran away to find my mum who was in the kitchen. -- 39 of 114 -- [2024] SADC 100 38 Q. Did you say anything to your mum at the time about that incident. A. No, I didn't. Q. Why was that. A. Why, because I was embarrassed, ashamed I suppose, disgusted, upset, she could see that I was upset but didn't ask. 126 CS thought her parents, older brother S, sisters Sh and Ro, TP, BeP and RP were all at Moorook during this visit and at the time of the incident, WJP, JMP, TP and BeP were in the kitchen. CS was unsure where precisely her brother or sisters were when the alleged abuse occurred in the lounge room. 127 In cross examination, CS said she did not believe she had ever seen the accused again after the two occasions on which she recalled visiting Moorook. She denied that her two sisters were with her ‘at all times’ during this incident because the accused had asked the three of them if they wanted to see the kittens. It was put to CS that the incident in the lounge room did not happen. CS disagreed, remarking that she had a ‘very vivid memory of that incident…and I have never forgotten it’. 128 I have earlier referred to what the accused said to Detective Rethus about an incident involving CS in the lounge room at Moorook. The accused’s version was not put to CS during cross examination. I do not draw any inference adverse to the accused or the case he puts forward because the version he gave to police was not put to CS.18 Uncharged act and Count 1 129 KH was born on 17 June 1969. She was 54 years old at the time she gave evidence. She grew up in Osborne with her parents CB and JP and her two older brothers. 130 KH gave evidence of two incidents allegedly involving sexual misconduct by the accused. Horse riding incident - Moorook 131 The first occurred during a horse ride KH took with the accused at Moorook when she was between the ages of five and seven, placing the incident sometime from in or around June 1974 to pre June 1977, when KH would have turned 8. The accused would have been between the ages of 16 and 18 at this time. 132 The Moorook property, where TP and BeP lived, was a farming property where oranges, grapes and other fruits were grown. The property was bordered by Kingston Road, Wachtel Road and Loxton Drive, Moorook. The main residence of the property, depicted on P3 as the cluster of buildings on the corner of Wachtel 18 See generally, Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36. -- 40 of 114 -- [2024] SADC 100 39 Road and Loxton Drive, was built after severe flooding in the 1950s destroyed the original residence which was on the corner of Kingston and Wachtel Roads. After the floods, the original residence was converted to a stable. 133 KH said that as a child, she visited the Moorook property once a year or so, with her parents. These were mostly day trips but on three occasions involved an overnight stay. From time to time, the family visited Moorook over Christmas or Easter. These visits occurred when KH was five to 12 years of age (1974- 1981/1982). The accused was present during these visits and, to KH’s knowledge, has always lived on the family property. KH spent time with the accused at Moorook and got along well with him. 134 KH said that during one visit to Moorook, the accused took her for a ride on the horse that was stabled where the original house had been. According to KH, she and the accused had taken a tractor or walked to the horse stable and the accused had then put KH on the horse. The accused got on the horse, sitting behind KH. 135 KH described what happened during the horse ride in the following terms: A I can't remember if there was a saddle or not on the horse but we were riding down the road to towards the house and my uncle was rubbing his penis into my lower back and bottom and I could feel it was hard and as we were riding my Uncle [KMP] said to me 'Does that feel good'. I said nothing. I just wanted to get off the horse and go back into the house. We got to the top of the house, he lifted me off the horse and I just went straight into the house to my parents. 136 KH later said the horse was in a ‘walk’, not a trot or a canter, when the accused asked ‘Does that feel good?’ She gave further evidence on the association between the comment and her perception that the accused was rubbing his penis against her back: Q. [KH], do I take it at least in your mind you connected your uncle's comments to what you felt pressing into your back or bottom. A. I felt my uncle's penis in my lower back, bottom and it was hard. Q. Yes. A. And it - rubbing it into me and he asked me 'Does that feel good?' and I said nothing, I just wanted to get off the horse and go back into the house. Q. I'm just asking the comment by your uncle, did you connect that to what you felt in your lower back. A. Yes. Q. You connected the two. A. Yeah, yeah, definitely. -- 41 of 114 -- [2024] SADC 100 40 Q. In your mind why did you connect the two, what was it that made you make that connection. A. Because he was rubbing his penis into my lower back and my bottom and he asked me at the same time while he was doing that 'Does that feel good?'. Q. Had you been on the horse for a period of time before that comment was made. A. I was halfway to the house. Q. Your uncle, if you can recall, during that horse ride, had your uncle made any comments to you about the act of horse riding itself and asking you how you're enjoying it or not. A. No. The only thing he said was 'Does that feel good?'. Q. Was that the extent of your interaction on - A. That's right. Q. - during the horse ride. A. Yeah, and that was to do with him rubbing his penis into my lower back and bottom. MR MULVIHILL: Nothing further. HIS HONOUR Q. [KH], you told me you couldn't remember if there was a saddle on the horse. Was there a bit in the horse's mouth and reins. A. Yes. Q. And who was, if anyone, was operating the reins as you made the way back to the house - made your way back to the house I should say. A. I was holding the reins and [KMP] was holding me. Q. Where was he holding you. A. He was behind me and he was hugged right into me and he was rubbing his penis into my lower back, bottom. Q. Where was he holding you. Where were his hands. A. Around my waist, stomach. Q. Around the front, yes, all right, thank you. A. Yes. 137 I pause here to observe that whether KH thought the comment was connected to what she could feel is not, to my mind, admissible evidence that the accused was deliberately rubbing his penis into her back. Nonetheless, her evidence, if accepted, suggests a contemporaneity between the comment and what she could -- 42 of 114 -- [2024] SADC 100 41 feel, that lends support to the conduct being a deliberately sexual act by the accused. Of course, KH did not see what was making contact with her lower back as the accused was behind her and I note that she was, on her evidence, between the ages of five and seven at the time of this incident, which took place between 49 and 47 years ago. 138 This incident was not the subject of a charge but was put before me as evidence of the accused ‘testing the waters’ for the purpose of evaluating KH’s response to sexualised conduct. This was said to be the only permissible use of the evidence, pursuant to s 34P(2)(a) of the Evidence Act. In accordance with s 34R of the Evidence Act, I have directed myself that this is the only permissible use of the evidence (and indeed any such use of the evidence would be contingent upon a finding that the incident occurred and involved deliberately sexual conduct by the accused) and that I must not reason that, if I am satisfied the accused committed this act, he is therefore a bad person or the sort of person likely to have committed a crime or any act of sexual abuse or any of the charged acts; or that the accused had a propensity to commit such acts against KH or any other child for that matter. 139 No objection was taken to this evidence. Count 1 – indecent assault at Osborne 140 The second incident about which KH gave evidence was said to have taken place at her family home at Osborne during a visit by her grandparents and the accused. KH said she was 12 years old when the second incident occurred, which places it around June 1981 to June 1982. The accused would have been around 22- 23 years old. 141 As Moorook was about a three to three and a half hour drive from Osborne, TP, BeP and the accused would occasionally spend the night at the Osborne residence during visits to Adelaide. When this occurred, the accused would sleep in a sleeping bag on the lounge room floor which was adjacent to a kitchen table situated in an open plan area near an entrance to the kitchen. The configuration of the room is depicted on P2. 142 KH said this incident occurred on one occasion when the accused and her grandparents stayed overnight. Her grandparents slept in the room marked ‘Gym’ on P2; the accused slept in the lounge room as was his practice. KH gave the following evidence about this incident: Yes. I was in my bedroom, I woke up to go to the kitchen to get something to eat or drink. The light was on in the kitchen and [KMP] was talking to me but I can't remember the exact words he said but he got me to get into his sleeping bag. His back was facing the lounge room window, his head was up the TV end and I was laying on my side, on my left side facing him, he was laying on his right side facing me. He had no top on. He had his underwear on only. I had my pyjamas or a nighty on. It was cold. It was winter. I was 12 years old. The reason I know I was 12 years old because my birthday is in winter and I was in grade seven at Taperoo Primary School. I was in the sleeping bag and [KMP] grabbed my hand and placed it on his penis in a grip like fashion. Then [KMP] put his hand on top -- 43 of 114 -- [2024] SADC 100 42 of my hand and he made me stroke him for two minutes and I knew it was wrong and I said to him 'I want to go to bed' so he let go of my hand, I let go of his penis and I went to my bedroom and he didn't touch me in any way or hurt me. I just went to bed and went to sleep. 143 When asked for further detail, KH elaborated: Q. When you're in the sleeping bag, can you explain how it was that your hand ended up on your Uncle [KMP’s] penis. A. Yes. Uncle [KMP] took my hand, placed it on to his penis, then he put his hand on my hand and made me stroke him, he made me do stuff to him. I remember the colour of his penis. It's pinkish, pinkish white and I still recall and remember the opening of the penis. His penis has a wider opening compared to a normal penis which I know now because I'm older. Q. Was his penis erect at the time that you were stroking it. A. Yes. Q. Did your Uncle [KMP] say anything to you as he was using your hand to stroke his penis. A. I can't recall. Q. After that incident, what did you do. A. I thought in my head 'I want to go to bed, this isn't right' and I said to my Uncle [KMP] 'I want to go to bed'. 144 I pause here to note that, according to P2, KH walked through the kitchen and past the kitchen table before getting into the accused’s sleeping bag. As I earlier observed, the kitchen table was situated in the same room as the accused would set up his sleeping bag and there was no evidence to suggest there was anything obstructing the line of sight of a person seated at the kitchen table looking into the lounge room. 145 The following morning, KH entered the kitchen where her mother and father were having a discussion. KH’s father, CB, told her that he had found the accused behind the door to her bedroom the previous night. KH had not seen the accused in her bedroom but had woken when her father entered her room and put a light on. 146 This evidence was led not to prove the truth of what CB reported (which, as will be seen, was the subject of evidence from CB in any event), but, rather, to link the incident about which KH gave evidence with the occasion her father described. 147 After CB left the kitchen at the conclusion of the conversation concerning his discovery of the accused in KH’s bedroom, KH told her mother, JP, that ‘[KMP] did stuff to me last night’. KH said nothing came of this disclosure. KH said she had a very close relationship with her mother at the time. -- 44 of 114 -- [2024] SADC 100 43 148 The prosecution relied on KH’s disclosure to her mother as the initial complaint of count 1 for the purposes of s 34M of the Evidence Act. 149 In cross examination as to count 1, KH said that she got into the accused’s sleeping bag in the context of him talking to her, although she was unable to recall what the accused said. The sleeping bag was left unzipped after KH got in and there was a light on in the kitchen. 150 KH said that everyone else was in bed asleep when she got into the accused’s sleeping bag and she confirmed that the accused’s parents slept in the gym on this occasion and not on the modular sofa in the lounge room. 151 Returning to KH’s evidence about being woken when CB turned a light on in her room, KH said in cross examination that she did not hear an exchange between her father and the accused at that time. She said that CB turned the light on; she woke up and then went back to sleep. Importantly, KH said that the incident with the accused happened before her father turned the light on in her bedroom. She explained: Q. Are you able to say whether you got up to go to the kitchen before or after your dad came into the room. A. I got - I got up out of my bedroom, walked into the kitchen, got something to eat or drink and then [KMP] did what I told you already what he did to me, then I went back to bed. I was asleep, then my dad switched my light on when I was asleep and woke me up. Q. So the answer to my question was - sorry, the question I asked was are you able to say whether your dad turned the light on before or after you got up to go to the kitchen, so it was after you got up to go to the kitchen. A. Yes, so after and I went back to bed to sleep and then he woke me up. He came in my room and turned the light on. Q. You didn't ask your dad what he was doing in your room. A. No. Q. You weren't concerned it might be him. A. No, I didn't even think. I was asleep. 152 As to the disclosure to her mother the following day, KH maintained that she told her mother ‘[the accused] did stuff to me last night’. She said that she could not recall her mother responding in any way or asking if she was ‘okay’. 153 KH denied the suggestion put to her in cross examination that the alleged sexual activity did not take place. -- 45 of 114 -- [2024] SADC 100 44 Discussions between KH and AP 154 In July 2019, KH attended the funeral of her late uncle LSP in Darwin. Upon returning from the funeral, KH made telephone contact with AP, during which she told her that the accused had sexually abused her ‘and all the – and others’. 155 KH and her cousin TLP, subsequently met with AP at Camden Park where they had a conversation in a car during which AP told KH that she had been ‘sexually abused by Uncle [KMP]’. AP was very distressed when making the disclosure.19 She did not provide any details of sexual abuse. KH did not disclose to AP what the accused had done to her. 156 The following day, KH had further contact with AP who rang her in a distressed state. KH organised for AP to attend at her house with TLP. At one point throughout the time they spent together at KH’s house, TLP left AP and KH alone and AP again told KH of the accused sexually abusing her, and that she was too afraid to tell her parents for fear of it destroying the family. Again, AP did not provide any details of alleged abuse to KH. Discussions between KH and NV 157 Around two weeks after LSP’s funeral, KH had a telephone conversation with NV, during which KH told NV ‘what [the accused] had done to me and the others and then [NV] told me the same thing happened to her but we didn’t go into depth what he did to each of us’. 158 KH said that she told NV the accused had ‘touched me’ and NV told her ‘he sexually abused her too’. NV did not go into detail about what the abuse involved. Cross examination on collusion and contamination 159 In cross examination, KH agreed that she had spoken to her cousins TLP, NV and AP about her allegations but said she did not discuss any detail during those conversations. 160 KH said that she first told her cousin H about the alleged sexual abuse by the accused in 2013, some six years before her uncle’s funeral. This conversation occurred in the context of KH sending out invitations for her father’s surprise 70th birthday, which seems to have prompted H to contact KH and tell her that the accused had sexually abused her (that is, H). In response, KH told H that the ‘same thing happened to me’ but she did not go into any further detail. I reiterate that this evidence is relevant and admissible only to the issues of collusion and contamination. 19 I have not used any evidence suggesting that AP was distressed when making any disclosure about alleged offending when evaluating the credibility or reliability of AP’s evidence nor have I made any other use of this evidence. -- 46 of 114 -- [2024] SADC 100 45 161 KH said in cross examination that in 2013 she spoke with her cousin TLP after the funeral for TLP’s brother. In this conversation, KH told TLP, who was struggling in the aftermath of her brother’s death, that she should ‘maybe get [the accused] to help you with the kids because she was depressed…’. 162 KH confirmed in cross examination that when she spoke with AP over the phone following her return from LSP’s funeral, she told AP that she had been ‘sexually abused and others were too by him’ but KH did not provide any further ‘detail’. 163 KH said that, prior to driving to Camden Park to meet with AP following the telephone call, she had not seen AP since AP was six years old, but she had her contact details through Facebook. 164 The conversation in the car at Camden Park went on for around an hour and a half, and in that time AP told KH that she had been sexually abused by the accused. This concerned KH because AP had a history of self-harming. AP did not then disclose ‘details’ of the alleged abuse. KH did not ask her ‘how’ she was sexually abused and AP did not ask KH ‘how’ she was sexually abused. KH agreed with the proposition that in the ‘90 minute conversation no detail whatsoever was expressed about this’. 165 KH said that AP visited her at her house the following day after calling KH whilst having a ‘meltdown’. AP stayed overnight at KH’s house, as did TLP, and the three of them talked more about the allegations that AP and KH had made against the accused. KH said however that neither she nor AP talked about ‘details’: Q. [KH], my question was quite specific: in that time did you talk about details. A. No details, no. When you ask about details, [AP] told me she was sexually abused and she didn't go into depth what he did to her and I didn't either about myself. Q. When you say 'didn't go in-depth', was there some information given by [AP] about what happened. A. She was sexually abused by [KMP]. Q. Anything other than that. A. No. Q. And were they the words that she used. A. Yes. Q. And they're the same as the words you used. A. Yes. -- 47 of 114 -- [2024] SADC 100 46 Q. So all both of you said was 'I was sexually abused by [KMP]. A. Yes. Q. Neither of you said something different. A. No, nothing. Didn't say anything what he did to me. She didn't tell me what he did to her. Q. But you both used the phrase 'sexually abused'. A. Yes. 166 With reference to her evidence in chief that she had told NV that the accused had ‘touched me’, KH said she did not provide further detail. KH said this disclosure occurred via telephone and that, at the time, she was not regularly in contact with NV. 167 KH denied that she had spoken to AP or NV about giving evidence. 168 When asked in re-examination why she had told NV that the accused had ‘touched me’ bearing in mind the nature of the allegation that sits behind count 1 and the horse riding incident, KH explained ‘because I always remember that he touched me’, adding: He touched me, as in pushing his penis into my lower back, and he touched me, as in grabbing my hand and placing it on his penis. 169 NV also gave evidence that KH disclosed to her that the accused had ‘touched me’, and had rubbed up against KH in a sleeping bag. Evidence of CB and JP 170 KH’s father, CB, and her mother, JP, gave evidence as part of the prosecution case. 171 CB was 79 at the time of trial. He gave uncontroversial evidence about attending the Moorook property with his wife JP and their children, including KH, over a number of years. CB agreed that over a period of 25 years or so, they attended Moorook for Christmas. He thought these were day trips, but said he was confused at this point in his evidence and the luncheon adjournment was then taken. 172 Upon resuming his evidence, CB said that sometimes at Christmas the family would stay the night at Moorook and sometimes they just visited for the day. 173 CB said that TP and BeP would visit his and JP’s house at Osborne around once or twice a year and the accused would accompany them. TP and BeP would sleep in the gym, which was a besser block building to the rear of the Osborne property, and the accused would sleep in a sleeping bag on the lounge room floor, -- 48 of 114 -- [2024] SADC 100 47 albeit CB did not know whether that was the case on every occasion that the accused visited with his parents. 174 CB gave evidence about an unusual incident that occurred when KH was 11 or 12 and the accused visited Osborne with his parents. At around 9pm on this particular evening, the adults were at the kitchen table, when CB noticed that the accused was nowhere to be seen. CB went looking for him and opened the door to KH’s bedroom. He did not see the accused in the bedroom, so he returned to the kitchen table and asked where the accused was. No-one at the table knew, so CB returned to KH’s room, turned the light on and saw the accused behind the bedroom door. CB could not recall what he said to the accused at the time. KH was in her bed asleep and CB did not think she woke up. 175 CB said he returned to the kitchen table and told his wife, JP, of his observations. 176 In cross examination, CB confirmed the accuracy of P2. He said that the entrance to the bathroom was effectively opposite the doorway to KH’s bedroom. 177 It was suggested to CB that when he came across the accused in KH’s bedroom, that CB had asked ‘what are you doing here’ to which the accused replied ‘I’m lost, I’m looking for the bathroom’. CB said he could not recall whether these comments were made. 178 JP20 was 77 at the time she gave evidence. She confirmed the evidence of CB and KH that their family visited the Moorook property once or twice a year, including for Christmas Day, and that TP, BeP and the accused visited the Osborne residence from time to time. When they stayed, the accused would sleep in a sleeping bag in the lounge room. 179 JP said she recalled one occasion on which the accused, TP and BeP stayed overnight at Osborne where the accused made a comment about the noise being made by a clock in the lounge room. 180 In cross examination, JP said that the first time she heard her daughter’s allegations against the accused were in 2019. She denied that KH had told her about her uncle ‘doing stuff to her’ when she was in primary school and said that had any such disclosure been made, she would have done something about it. Submissions of the parties 181 Mr Mulvihill submitted that KH’s evidence was clear and concise and absent any hallmarks of embellishment. He submitted that CB’s evidence lent some support to KH’s account, albeit acknowledging the inconsistency in relation to the timing of CB turning the light on in KH’s room which, on the face of it at least, presents some difficulty in reconciling the two versions. 20 I note that JP’s evidence appears in the transcript under her married name – JB. -- 49 of 114 -- [2024] SADC 100 48 182 Mr Mulvihill argued that CB’s evidence as to finding the accused in KH’s bedroom demonstrated the accused had a deviant sexual interest in KH when viewed in the context of the allegation in count 1. I reject the suggestion that the evidence of CB, if I accept it, is capable of demonstrating that the accused had a sexual interest in KH. The accused’s presence in KH’s bedroom is, at most, curious and possibly suspicious, but I do not consider it is in any way capable of informing me as to whether he had a sexual interest in KH that might make more likely the commission of the charged act. To the extent that this use of the evidence would have triggered the operation of s 34P(2)(b), I am not satisfied the evidence has strong probative value. I will not and have not reasoned that if the accused was found in KH’s bedroom in the circumstances described by CB that he is a ‘bad person’ or the sort of person likely to commit crimes generally or crimes of the type charged. I will use the evidence of the accused being found in KH’s bedroom only for the purpose of (1) linking the occasion about which KH and CB gave evidence and (2) evaluating the credibility, reliability and plausibility of KH’s account given that, on the evidence of her father, it is inherently unlikely that KH could have been sexually assaulted by the accused before her father entered her room and turned on her light, as she asserted. I return to this issue in my analysis of count 1. 183 Mr Mulvihill argued that the disconnect between CB’s evidence and KH’s evidence concerning the timing of CB finding the accused in the bedroom and the implication from KH’s evidence that the alleged offending occurred before that event – which, on CB’s account, would mean at a time when the adults were seated at the kitchen table not far from the lounge room – was explicable on account of the passage of time. He said one or other of KH or CB’s evidence as to sequence may be unreliable, but that did not preclude me from accepting KH’s evidence about the charged act. 184 Mr Mulvihill made a similar submission with respect to the evidence of JP that KH did not make a complaint to her the morning after count 1. He argued that the terms of the complaint were quite vague and may not have resonated with JP as a complaint of sexual abuse. Equally, Mr Mulvihill acknowledged that KH may well have been wrong in saying that she did complain to her mother. Whatever the explanation for the inconsistency, Mr Mulvihill argued it did not detract from the cogency of KH’s evidence about the charged act. 185 As to the disclosure made by KH to NV to the effect that the accused ‘touched me’, Mr Mulvihill submitted that KH’s explanation for that form of words was understandable: in making that disclosure (which I reiterate is not admissible as initial complaint or an elaboration thereof), KH had called to mind the horse riding incident and the event the subject of count 1 and was making a general statement synonymous with having been ‘sexually abused’ rather than a specific disclosure about the precise act or acts of abuse. 186 With respect to the horse riding incident, Mr Mulvihill argued that the coincidence of the comment attributed to the accused together with KH’s evidence -- 50 of 114 -- [2024] SADC 100 49 about feeling his erect penis pressing against her, left little doubt that the accused’s conduct was deliberately sexual. Although Mr Mulvihill acknowledged that the horse riding incident pre-dated count 1 by in the order of five to seven years, he maintained that it was nonetheless capable of being seen as the accused testing the waters and becoming emboldened by KH’s lack of protest or complaint as to encourage the alleged offending at Osborne. He argued further it demonstrated that the charged act did not ‘come out of the blue’. 187 Ms Demertzis, counsel for the accused, submitted that KH gave what appeared to be ‘rehearsed’ evidence. 188 She argued that KH had downplayed the extent of conversations with her cousins about the alleged abuse. Ms Demertzis submitted that KH’s insistence that no details had been discussed as between her, AP and NV was inconsistent with the evidence of NV and AP. For example, and as will be seen, NV gave evidence that she told KH that the accused made NV touch him in the lounge room at Moorook. NV also said that KH had told her that the accused rubbed up against her (KH) when she was in a sleeping bag with him. KH’s evidence, in contrast, was that she had told NV ‘what the accused had done to me’ and that he had ‘touched me’; that NV had said the accused sexually abused her; but neither of them went into detail about what the accused had done. 189 Ms Demertzis highlighted KH’s evidence that she only had one telephone discussion with NV concerning the allegations after LSP’s funeral whereas NV described being in regular contact with KH before and after the funeral. Ms Demertzis submitted that these divergences reflected negatively on KH’s credibility and her reliability because of her unwillingness to concede that the detail of her discussions with others may have been more extensive than she was portraying. 190 As to the conflict between KH and CB concerning count 1, Ms Demertzis said there was no reason for me not to accept CB’s evidence which presented essentially a terminal problem for KH’s version. 191 The same submission was made with respect to the conflict in the evidence of KH and her mother concerning the ‘complaint’. Ms Demertzis contended that had any disclosure of the kind about which KH gave evidence in fact been made, it was implausible that JP would not have responded to or pursued it one way or another, particularly in the context of the conversation concerning the accused’s presence in KH’s bedroom the night before. Ms Demertzis said that, at the very least, this conflict in the evidence had to impact on my assessment of KH’s reliability. 192 Ms Demertzis also drew attention to what she contended was the implausible evidence of KH that, under the cover of darkness and whilst in the sleeping bag with the accused, she was able to observe what she suggested was an unusual feature of his penis. -- 51 of 114 -- [2024] SADC 100 50 Observations as to the evidence of CS 193 I deal first with the evidence of CS. 194 I found CS to be a most impressive witness. She was direct and precise in her evidence and confident in her recollections. I have no hesitation in concluding that she was making every endeavour to tell me what she considered to be her accurate recollections of an incident that occurred almost 50 years ago. 195 Moreover, the substance of CS’ evidence was coherent and logical. There was nothing about the way she gave her evidence or the substance of her evidence that caused me to doubt her truthfulness. Her evidence was not undermined in cross examination and there was no suggestion that CS had been party to any conversations between KH, NV and AP about their allegations concerning the accused. I bear in mind however that CS is the sister of JMP, who is NV’s mother. 196 I accept that CS was purporting to recount a one off incident that occurred many decades ago and that the passage of time, in combination with her young age when this event is alleged to have occurred and the forensic disadvantage the accused faces in meeting these allegations, require careful consideration. The accused’s denials 197 It will be recalled that the accused told Detective Rethus in his interview that something had happened between himself and CS in the lounge room at the Moorook property, which essentially involved CS wanting sex from him. The accused told Detective Rethus that he rebuffed CS and that her mother then entered the lounge room and took CS away. If the accused’s narrative related to the same incident to which CS was speaking – and there was no suggestion either by CS or the accused that there was more than one unusual incident occurring in the lounge room at Moorook between them - and was reasonably possibly true, CS’ evidence would fall by the wayside. 198 I reject the accused’s explanations about his interactions with CS during his interview as completely lacking in credibility and reliability. The accused’s description of the incident in the lounge room with CS was fanciful and is not reasonably possibly true. The version given by the accused was illogical and unavoidably implausible. I reject as incredulous the suggestion that a young girl in CS’ position essentially importuned the accused for sex. 199 However, the accused’s acknowledgment of an incident with CS in the lounge room at Moorook that had a sexual overlay is, I consider, not insignificant. It lends some support to CS’ evidence that there was an interaction between her and the accused in the lounge room of the Moorook property that had a sexual component. It is apparent however that what the accused said to Detective Rethus cannot be used as any form of admission or implied admission and I do not reason that, because I have rejected what the accused said as not reasonably possibly true, the version he gave to Detective Rethus reflects a consciousness of guilt in relation to the uncharged act or any other charged or uncharged act. -- 52 of 114 -- [2024] SADC 100 51 200 Rather, I conclude only that the accused’s explanation in relation to the lounge room incident with CS lacks credibility and reliability and I exclude it as a reasonable possibility. 201 I must then determine whether I accept CS’ evidence that the accused made her touch his penis in the lounge room in the manner she described. Having closely examined the credibility and reliability of CS’ evidence and scrutinised it with care in the context of the passage of time and her age when the incident is said to have occurred and the significant forensic disadvantage the accused confronts, I find that CS’ account was credible and reliable. I accept her evidence. 202 Although it is not necessary for me to find it proved beyond reasonable doubt that the accused sexually abused CS in the manner alleged as the act is uncharged and is not an indispensable intermediate fact, I am satisfied beyond reasonable doubt that the accused engaged in the conduct alleged by CS. 203 I find that the accused essentially lured CS into the lounge room under the pretence of playing with a kitten or kittens. I find that once in the lounge room, the accused had CS lay on the sofa with him and that he thereafter placed CS’ hand down his pants and in contact with his penis. 204 As I have earlier indicated, I found the evidence of CS to be cross admissible in respect of counts 1 and 2 for similarity of account reasoning. I will return to this issue in the context of count 1 momentarily, however I indicate that I have found the evidence of CS to be credible and reliable without the need to take into account the evidence of KH and NV. Observations as to the evidence of KH, CB and JP 205 KH gave her evidence in a methodical and measured way. She was, in the main part, precise and careful in her answers and she struck me as being a reasonably reliable historian who was endeavouring to tell me about incidents as she recalled them. From time to time, KH’s answers to questions were non- responsive or somewhat tangential, but I did not consider she was deliberately evasive or obstructive. Rather, I took the view that this was simply a by-product of the nature of the exercise she was engaged in. I disagree that her evidence presented as ‘rehearsed’ in any pejorative way so as to reflect negatively on her credibility or reliability. 206 KH was clear about limitations in her memory but was steadfast in her evidence concerning the circumstances and manner in which the alleged abuse occurred. Her evidence as to count 1 was comprehensible and logical. 207 I have not allowed the fact that KH gave evidence with special arrangements in place to influence the weight I attach to her evidence and I have not drawn any inference adverse to the accused from the fact that special arrangements were in place for her evidence. -- 53 of 114 -- [2024] SADC 100 52 208 I considered both CB and JP to be forthright and honest witnesses. I have no hesitation in accepting that they both endeavoured to tell me the truth and there was no attack on their credibility or reliability – counsel for the accused essentially embraced their evidence as honest and accurate. 209 Despite CB’s initial confusion in relation to visits to the Moorook property around Christmas, I considered he was a generally reliable witness and, in particular, his evidence concerning the incident in which he found the accused in KH’s bedroom was clear and coherent. 210 I will return to the issues that CB’s evidence gives rise to momentarily. 211 Although the compass of JP’s evidence was very narrow, I considered that she too was a reliable witness. Obviously enough, JP’s evidence conflicts with the evidence of KH in relation to the complaint said to have been made by KH to her mother the morning after count 1 and I will address the conflict in their evidence shortly. Analysis of the horse riding incident 212 I accept KH’s evidence that, when she was between the ages of five and seven, she went on a horse ride with the accused in the circumstances she described. I accept further that, in the course of that ride, KH felt what she thinks was the accused’s penis pressing against her lower back / bottom area, and that the accused made a comment along the lines of ‘does that feel good’ as they rode the horse back towards the Moorook homestead. 213 I am unable to accept however that the interaction was necessarily deliberate and sexual. The context in which the contact took place makes it difficult to conclude that the accused deliberately pressed his penis into KH’s back / bottom, in contradistinction to any such contact being an incident of the activity and their respective body positions. KH was sat between the legs of the accused on a horse that was possibly saddled or possibly bare back. The accused was holding on to KH around the waist and KH had hold of the reins. The manner in which KH and the accused were positioned, and the nature of the activity, carried with it the risk of inadvertent physical contact, particularly given KH was sitting between the accused’s legs. 214 I accept that the remark attributed to the accused could possibly be referable to, and therefore indicative of, a deliberate pressing of his penis against the complainant; but it is equally consistent with a comment about the nature of the activity they were engaged in that coincided with inadvertent physical contact of the kind described by KH. 215 Moreover, KH was aged between five and seven years old at the time and, in circumstances where she did not see what was pressing into her and the accused was, by virtue of the nature of the activity, required to be in close proximity with her and to secure her around the waist, I have reservations about the reliability of -- 54 of 114 -- [2024] SADC 100 53 KH’s assertion that it was necessarily the accused’s penis pressing into her. Alternatively, it may be that KH’s conceptualisation of the interaction has evolved over the decades and in light of events that occurred thereafter. 216 It is not necessary for me to find beyond reasonable doubt that the conduct described by KH on the horse amounted to an indecent assault or an act of gross indecency. It would suffice if I was satisfied that the conduct was deliberate and contained a sexual element so as to shed some light on whether the accused was, for example, ‘testing the waters’ with KH to see how she might react to sexualised conduct or to otherwise explain how the event the subject of count 1 had not ‘come out of the blue’ (albeit, I note that, in a sense, that incident did, on the prosecution case, come out of the blue because it was between five and seven years later with no other misconduct alleged in the interim). 217 In considering whether this interaction was deliberate and sexual, I have had regard to the evidence of CS and NV to the extent that I found their evidence to be cross admissible for similarity of account reasoning. However, in the circumstances I do not consider that form of reasoning assists in resolving whether what KH experienced was a deliberate and sexual act by the accused. 218 As I am unable to accept that contact between KH and the accused was intrinsically sexual and deliberate, I disregard the evidence concerning this incident when considering whether count 1 has been proved to the criminal standard. It is incapable of aiding in my assessment of the issues arising because, on my findings, the incident is intractably neutral. However, I will take into account that I am unable to accept KH’s characterisation of this incident when evaluating whether her evidence of count 1 is credible and reliable and capable of persuading me beyond reasonable doubt of the accused’s guilt. Analysis of count 1 219 I move then to count 1. 220 As I have said earlier, the passage of time with its associated detriment to the conduct of the defence case, and the unavailability of witnesses, including in particular TP and BeP who passed away in 2007 and 2013 respectively, has occasioned the accused a significant forensic disadvantage in defending these allegations which I must give effect to when scrutinising KH’s evidence and whether the prosecution has discharged its burden. 221 There are a number of other features of KH’s evidence about count 1 that require careful review. Complaint 222 There is a significant conflict in the evidence of KH and JP about whether KH complained the morning after count 1. KH was adamant that she complained to her mother; JP was adamant that KH did not complain to her and that had she done so, she would have acted. The evidence of both witnesses is, of course, -- 55 of 114 -- [2024] SADC 100 54 concerned with what, on KH’s evidence, must have been a very quick disclosure that occurred some 40 years ago in the kitchen of the Osborne residence and, on KH’s evidence, in the context of her father having just spoken to JP about the unusual occurrence the night before with respect to the accused. 223 In those circumstances, I tend to the view that had KH said anything to her mother, JP would have remembered. Indeed, to my mind, a disclosure that an uncle – JP’s brother – had ‘done stuff to’ her daughter the night before, is the very sort of comment that would remain indelibly imprinted in JP’s mind and on which I accept that she would have immediately acted. 224 I acknowledge that the fact the disclosure concerned JP’s brother could, conceivably, have resulted in her dismissing the disclosure so as to avoid creating a family issue or perhaps not realising or appreciating the import of what KH was saying at the time, particularly given the disclosure was somewhat vague. 225 However, in the circumstances and in light of the conflict in the evidence of KH and JP on this topic, I am unable to find that KH made a complaint to her mother in the manner she described and it follows that the evidence of KH on this topic cannot be used for any of the purposes contemplated by s 34M of the Evidence Act. Accordingly, I find KH’s evidence that she made a complaint to her mother the morning after count 1 was wrong. 226 I will bring to account my inability to accept KH’s evidence on this topic in my further assessment of the credibility and reliability of her evidence generally. KH’s observations of the accused’s penis and the conflict between KH and CB’s evidence 227 As I have earlier remarked, the substance of KH’s evidence concerning count 1, was coherent and logical. Upon being spoken to by the accused in the context of entering the kitchen to get something to eat or drink, KH said she was drawn into the accused’s sleeping bag by what he was saying, although she candidly acknowledged she could not now recall what exactly that was. KH was however able to vividly recall what occurred in the sleeping bag. 228 Indeed, counsel for the accused argued that the vividness of KH’s evidence about a particular physical characteristic of the tip of the accused’s penis was in fact cause to hesitate before accepting her evidence. It was submitted that in the circumstances described by KH – namely, that the incident occurred at night, after everyone else was asleep, with only a light on in the kitchen and with KH having gotten into the accused’s sleeping bag – it is impractical to think she could have made such a detailed observation (about which there was, in any event, no evidence capable of confirming the accuracy of the observation). This, it was said, pointed to re-construction or fabrication. I do not think it can be said that the observation made by KH could not possibly have been made by her in the circumstances she alleged, and bearing in mind her evidence that the sleeping bag was left open after she got in it, and the length of time over which she was in the sleeping bag with -- 56 of 114 -- [2024] SADC 100 55 the accused, I do not accept that this feature of her evidence is suggestive of reconstruction or fabrication. 229 More problematic is the tension between the evidence of KH and CB. It will be remembered that KH’s evidence was that count 1 took place before CB entered her room and turned the light on. KH claimed that the abuse occurred on the floor of the lounge room, just metres from the kitchen table which was in the same open plan, L-shaped room. She said that everyone else was in bed asleep when she got into the accused’s sleeping bag. 230 CB’s evidence was that the adults were seated at the kitchen table when he realised the accused was nowhere to be seen and went looking for him, resulting in him, ultimately, turning on the light in KH’s bedroom and discovering the accused behind the door. 231 On CB’s evidence, there was no realistic opportunity for the accused to have committed count 1 prior to CB discovering him in KH’s bedroom and turning on her light. That is for the obvious reason that, on CB’s account, the adults were seated at the kitchen table just metres away from where the accused had set up his sleeping bag. 232 There can be no suggestion that CB and KH are talking about separate incidents: their evidence is linked by the unusual occurrence of the accused being found by CB in KH’s bedroom. 233 CB’s evidence about the sequence of events also had the appeal of common sense to it. On his version, the adults were seated around the kitchen table when he noticed the accused was missing from where his makeshift bed was set up and it was this that prompted him to search for the accused and ultimately led to him turning on KH’s bedroom light. That seems inherently more likely than CB entering KH’s bedroom and turning the light on at some point later and when the house is otherwise in darkness and everyone has gone to sleep. 234 Either CB or KH (or perhaps both of them) may be mistaken about the sequence of events of this particular incident. CB may be mistaken about when, and the circumstances in which, he turned the light on in KH’s bedroom. Contrastingly, KH may be confused about when the light was turned on in relation to her allegation of abuse in the sleeping bag. 235 It is of course for me to decide whether to accept or reject the evidence of KH and / or CB and I may find one or both of them to be credible and reliable in relation to some, but not all, of their evidence. It is open for me to conclude that KH is credible and reliable in relation to her evidence concerning the events in the sleeping bag for example, but mistaken as to when it was that her father turned on the light in her room. The prosecution need not prove the precise sequence of events before I can return a verdict of guilty: it is sufficient if I am satisfied beyond reasonable doubt of the elements of the offence based on KH’s evidence. -- 57 of 114 -- [2024] SADC 100 56 236 Having reviewed the evidence of CB and KH, I prefer the evidence of CB about when he discovered the accused and turned on KH’s bedroom light. As I have said, I consider the sequence of events about which he gave evidence had an understandable and natural progression. 237 I do not accept that KH’s error as to the sequence is an indicator of dishonesty but I have considered that issue carefully in combination with the other shortcomings in her account that I have, and will, advert to. Indeed, the fact that KH and her father are consistent in describing CB turning the light on in her room at some point on this particular occasion, lends some support to KH’s evidence. However, my preference for CB’s evidence as to the chronology of events does give rise to another issue with the reliability of KH’s evidence that I will have regard to when considering whether the prosecution has proved its case. Other issues with KH’s evidence 238 There are a number of other issues concerning KH’s evidence that require careful examination: 1. KH gave evidence that in 2013, she told her cousin TLP – whose brother had then recently died – that she should ask the accused for help with her (TLP’s) children. I find it curious that, in light of what KH said of her experiences with the accused, she would suggest to her cousin that she ought to have the accused help her with her children. This topic was not explored in cross examination in any detail. 2. During her conversation with NV some weeks after LSP’s funeral in 2019, KH told NV that the accused had ‘touched me’. Whilst KH rationalised her use of this form of words on the basis that the accused had pressed his penis into her back and had put her hand on his penis, the terms of the disclosure are, to my mind, inapposite in light of KH’s allegations. NV also gave evidence (which, as will be seen, I accept) that KH had told her that the accused had rubbed up against her in a sleeping bag. These inconsistencies as between KH’s evidence and things she has said out of court are relevant to my assessment of her credibility and reliability. Additionally, and contrary to KH’s evidence, NV said that she also told KH that the accused had made her touch him in the lounge room. 3. It is reasonably clear from the evidence of AP that KH was quite persistent in probing AP for information about what she alleges the accused did to her. AP described this at one point in her evidence as KH trying to ‘bribe me a lot about what he’s done to me’, which AP said she resisted because she did not wish to talk about such matters and did not think it was appropriate to do so. The defence would say that this suggests an eagerness on KH’s part to acquire information about the allegations involving AP and to a lesser extent NV, perhaps with a view to trying to reconcile her evidence with AP’s allegations. -- 58 of 114 -- [2024] SADC 100 57 Collusion and contamination 239 The evidence given by KH about conversations with H, TLP, AP and NV was, at times, difficult to follow. It is clear however that there was something of a ‘swell’ of information and accusations relating to the accused around the time of and after LSP’s funeral in 2019. This is important to the issues of contamination and collusion. 240 The gravamen of KH’s evidence is that both she and AP told each other they had been ‘sexually abused’ by the accused but KH did not tell AP ‘what he did to me’ and AP ‘didn’t tell me what he did to her’. KH did not suggest that she ‘badgered’ AP for information about her allegations, contrary to AP’s evidence, albeit she was not specifically asked about this. 241 Save for this matter, AP’s evidence about the extent of disclosures made by her and KH to each other was generally consistent with KH’s evidence. 242 AP gave evidence about the Camden Park car conversation in which she said KH asked her if anything had happened to AP and ‘was it [KMP]’? AP confirmed by nodding. AP said further that KH had tried to tell her what the accused had done to KH but AP told her she did not want to hear it. KH had however told AP that ‘sexual stuff has happened’ but she had not specified what had occurred. Similarly, AP said she did not go into any detail about what the accused had done to her. 243 It is apparent from AP’s evidence that, in her view, KH was quite persistent in her attempts to extract information from AP about the nature and extent of the abuse she alleged to have been committed by the accused. AP said that KH even tried to ‘bribe’ her for information by offering to disclose what had happened to her. 244 There are some differences in the respective accounts of KH and NV as to the content of their discussions. KH for example gave evidence that she told NV ‘what the accused had done to me’; that the accused had touched her and sexually abused her; that NV told her the same thing had happened to her and the accused had sexually abused her but neither went into depth about what the accused did. 245 On the other hand, NV said that she had told KH that the accused made her touch him in the lounge room at Moorook and that KH had told NV about being in a sleeping bag with the accused and him rubbing up against her and that the accused had touched her. NV gave evidence that she told KH that the accused had made her touch him in the lounge room. KH did not suggest that NV told her where the accused allegedly abused her or that the accused had made NV touch him. 246 I find that KH had multiple discussions with her cousins H, TLP, AP and NV about the accused ‘sexually abusing’ her. I also find that KH was aware that AP and NV allege that the accused sexually abused them and that there was, as I have earlier put it, something of a ‘swell’ of information and allegations about the accused around the time of LSP’s funeral, which is summarised by KH’s evidence -- 59 of 114 -- [2024] SADC 100 58 that she told AP after the funeral that the accused had sexually abused her ‘and all the – and others’. 247 I also accept the evidence of AP that KH was quite persistent in seeking details from her about the abuse she alleged and the difference between KH’s evidence and AP’s evidence on this topic is relevant to my assessment of KH’s reliability. 248 I do not accept that KH deliberately mislead me or was consciously trying to conceal the extent of her discussions with her cousins or her interest in acquiring more information from AP about her alleged abuse. However, I find that AP did not in fact provide information to KH about the nature, extent or circumstances of her alleged abuse because AP did not like discussing it. 249 I accept the evidence of NV that KH told her that the accused had ‘touched me’ and rubbed up against her in a sleeping bag which demonstrates both that KH told NV more detail about alleged abuse of her than KH suggested in her evidence and, equally importantly, inconsistent detail. As these inconsistencies relate to the gravamen of the sexual abuse alleged by KH, they are significant to my assessment of the credibility and reliability of KH’s evidence and I have carefully considered them. I also accept NV’s evidence that she told KH that the accused had made her ‘touch him’ in the ‘lounge room’. KH did not suggest NV provided these details. However, I do not accept that KH deliberately omitted telling me about making a disclosure to NV that the accused had ‘rubbed up against her’ in a sleeping bag or that KH deliberately refrained from telling me about the additional details NV provided to her. 250 I consider the variations in the evidence to be the ordinary consequence of three witnesses recalling conversations they had some years before giving evidence. I have had regard to the inconsistencies in the evidence on this topic when evaluating the reliability of KH (and the other complainants) but I reject the suggestion that any inconsistencies or variations might be explained by deliberate attempts to minimise or obscure the nature and extent of the conversations that the complainants have had. 251 I bear in mind my inability to accept KH’s characterisation of the horse riding incident which might be thought to support the possibility of a contaminated memory; nor have I overlooked my unwillingness to accept KH’s evidence about the sequence of events on the occasion of count 1 or her evidence that she complained to her mother. I have examined these issues, as well as the inconsistencies in KH’s account and the evidence going to discussions about the allegations (including variations in the evidence on this topic), collectively and paid close attention to them when making my assessment of KH’s evidence. I have also examined these issues in the context of what I have found to be the significant forensic disadvantage to the accused. -- 60 of 114 -- [2024] SADC 100 59 252 Bringing all of these issues to account, I am satisfied beyond reasonable doubt that KH’s allegations are not the consequence of collusion as between her and others, such as TLP, NV or AP and I reject the possibility that her recollection about the incident at Osborne has somehow been contaminated by these discussions. I consider the candour with which KH acknowledged the fact of and initiating discussions with her cousins to be inconsistent with any attempt to deliberately minimise or conceal these communications. 253 Importantly, to my mind, the vividness, coherence and detail which characterises KH’s evidence about count 1 is fundamentally inconsistent with a contaminated, imagined or false allegation. KH’s credibility and reliability generally 254 In making an overall assessment of KH’s credibility and reliability, I have given substantial weight to my conclusion that I am unable to accept KH’s evidence as to the sequence of events concerning her father turning her bedroom light on and the alleged abuse, together with my finding that, contrary to her evidence, KH did not complain to her mother. 255 In considering the significance of these errors in KH’s evidence, I also bring to account the inconsistencies between KH’s evidence and her disclosures to NV that the accused had ‘touched her’ and ‘rubbed up against her’ in a sleeping bag, which I accept inaccurately portray the nature of the sexual abuse that KH alleges occurred at the Osborne premises. 256 I have reflected on the asserted shortcomings, deficiencies and inconsistencies in KH’s evidence and with the evidence of NV and AP in combination. I have taken into account my inability to accept KH’s characterisation of the horse riding incident. I have considered whether these features of her evidence undermine her credibility, reliability or both. Further, I bear in mind that the reliability of KH’s memory of events said to have occurred almost 50 years ago and when she was a child must be exactingly analysed. I have carefully scrutinised her evidence for these reasons, bearing in mind that memories can change, evolve and become unreliable over such a lengthy period. 257 As I indicated I would at the outset of these reasons, I have taken into account the significant forensic disadvantage the accused faces in meeting these allegations when scrutinising the prosecution case. I have taken into account that the accused strongly denied any wrong-doing. 258 I do not accept that the errors I find KH made in her evidence or the inconsistencies in her description of the alleged abuse as involving the accused ‘touching her’ or ‘rubbing up against her’; or her suggestion to TLP that she might seek assistance from the accused with respect to her children; or the differences between KH’s evidence about her discussions with her cousins and the evidence of NV and AP, render her evidence any less persuasive. I do not accept that the errors KH made reflect poorly on her credibility. I find that she was unreliable in -- 61 of 114 -- [2024] SADC 100 60 these respects; but I reject the suggestion that these aspects of KH’s evidence are indicative of a lack of honesty. To the contrary, I found KH’s evidence genuine and convincing. 259 I do not accept that KH’s persistent inquiries of AP about the nature and extent of abuse she suffered or her willingness to ‘trade’ information with AP reflects negatively on KH’s credibility or reliability as a witness. Different people react to life experiences in different ways and I do not consider that KH’s inquisitiveness bespeaks of dishonesty, uncertainty or unreliability. 260 The asserted shortcomings in KH’s evidence, viewed in combination with the errors or mistakes with respect to matters of chronology relating to count 1 or whether a complaint was made to her mother the following day, are not such as to cause me to doubt the reliability or credibility of KH’s evidence more generally.21 261 Nor do I consider that KH’s account of the alleged offending by the accused is implausible or improbable. She described opportunistic and risky sexual abuse by the accused; but abuse of a short duration which, on her evidence, occurred when other members of the household were in bed. 262 Having conducted a global assessment of such issues, I accept that KH was a generally credible and reliable witness, save in the respects I have indicated. Of course, that does not mean the prosecution has proved count 1 beyond reasonable doubt. The accused’s denials 263 As I set out earlier, the accused denied the allegations relating to KH and expressed apparent confusion and bewilderment about how such allegations could be made against him. It is clear that in the early stages of the interview, the accused was labouring under the misapprehension that his attendance at the police station had something to do with TLP. I have borne in mind that the accused voluntarily attended at the police station and I have given him credit for answering police questions when he was under no obligation to do so. 264 I have also reviewed the accused’s demeanour during his interview with police. I did not find his demeanour to be informative one way or the other. 265 After the allegations of KH were put to and denied by the accused, he was not asked and did not say anything further about KH or his relationship with her (and, of course, he was not obliged to say anything at all). In the circumstances, there may have been nothing more useful that the accused could have said other than to assert his innocence, having been confronted with allegations of sexual 21 I am not, in this respect, giving the prosecution the ‘benefit’ of the forensic disadvantage the accused suffers as a result of the passage of time. Rather, I consider the passage of time is only relevant to the extent to which a finding as to the unreliability of KH in certain respects might be explicable and confined. -- 62 of 114 -- [2024] SADC 100 61 abuse some decades ago.22 Indeed, this is part of the forensic disadvantage that the accused confronts in defending these allegations which cannot be particularised as to time or date beyond a reference to the year or years in which the charged conduct is alleged to have taken place. 266 If the accused’s denials are reasonably possibly true, the prosecution will have failed to prove its case. I remind myself that the accused carries no burden whatsoever and that the question for me is not whether I prefer the evidence of KH to the denials of the accused. The prosecution must persuade me that the accused’s denials can be dismissed as not reasonably possibly true and that KH’s account proves the elements of the offences to the criminal standard. 267 In considering whether the accused’s denials are reasonably possibly true, I have borne in mind the extent to which I have found KH’s evidence to be inconsistent or unreliable and the other matters reflecting on her evidence that I have traversed earlier in my reasons. 268 I am satisfied that I can reject the accused’s denials beyond reasonable doubt. I also reject his denial of having been found by CB in KH’s bedroom during an overnight stay at Moorook. 269 The account given by KH concerning the charged act was compelling and detailed and the evidence given by CB about the circumstances in which he found the accused in KH’s room was persuasive. 270 In light of my finding concerning cross admissibility, I may have regard to the version of events given by the accused in relation to CS when considering whether his denials of alleged offending against KH are reasonably possibly true. My assessment of whether the accused’s answers during interview are reasonably possibly true does not need to begin afresh in relation to those passages of the interview that deal with KH and NV. Of course, having found the evidence of CS, KH and NV not to be cross admissible in relation to count 3 (and vice versa), the accused’s denials of AP’s allegations will need to be evaluated without reference to any findings I make in relation to his version concerning CS, KH and NV (and their evidence generally). 271 I find that the accused was an untruthful and unreliable historian in relation to the lounge room incident with CS and my inability to accept as a reasonable possibility what I considered to be his fanciful version of events is relevant to my assessment of whether his denials relating to KH remain reasonably possible. 272 I acknowledge, as I have earlier said, the difficult position in which the accused was placed by virtue of the nature, age and lack of particularity of aspects of the allegations and his significant forensic disadvantage. However, in the face of a convincing account from KH and the cross admissible evidence, which is 22 Rout v The King [2024] SASCA 72, [73]. -- 63 of 114 -- [2024] SADC 100 62 highly probative of the improbability that her account has been imagined or concocted, I reject the accused’s denials as not reasonably possibly true. Conclusion as to count 1 273 I am satisfied that KH’s account of what happened in the accused’s sleeping bag was credible and reliable. I repeat that I found KH’s evidence convincing and persuasive. 274 Further, the evidence of CS (which I have already indicated I accept) and NV (which, as will be seen, I also accept), which is cross admissible in relation to count 1, assists in satisfying me that the prosecution has disproved that KH’s evidence might possibly be explained by independent concoction or imagination. The peculiar similarities across the accounts of CS, KH and NV, all of whom describe brazen, risky and opportunistic offending against them as young children, by a person with whom they had a familial relationship, and involving the same kind of sexual misconduct, is strongly supportive of the improbability that KH imagined or independently concocted her allegations against the accused. 275 I am satisfied beyond reasonable that in or around 1981/1982, during a visit by the accused and his parents to the Osborne residence, the accused indecently assaulted KH in the manner alleged. I find that KH got out of her bed on this occasion when all others in the house were asleep in order to get a drink or something to eat from the kitchen. I find that the accused spoke to KH as a result of which she got into his sleeping bag with him. I am satisfied beyond reasonable doubt that after KH got into the accused’s sleeping bag, which was then left unzipped, the accused took KH’s hand and placed it on his penis and made her stroke his penis for a period of time, after which KH returned to her bedroom. I am satisfied beyond reasonable doubt that the accused assaulted KH in circumstances involving indecency. 276 My verdict on count 1 is guilty. Count 2 – inciting or procuring gross indecency – NV 277 NV is the alleged victim of count 2, which was said to have taken place in 1990/1991. 278 NV was 44 years old at the time of giving evidence. 279 NV is the daughter of BP and JMP. BP was the third child of TP and BeP. NV did not often see her grandparents when growing up as she was born and raised in Darwin. However, she visited the Moorook property with her parents and younger sister every two years during the Christmas school holidays. The family would stay at Moorook for a week and spend another week with JMP’s parents in the Riverland. The accused had, to NV’s knowledge, always lived on the Moorook property, both before and after the passing of his parents. -- 64 of 114 -- [2024] SADC 100 63 280 The visits to Moorook occurred up until NV was around 15 to 17 years of age. She also returned to Moorook on one occasion with her father and her son who was then a baby and who, at the time of trial, was 15 years old. 281 NV said that, as a child, she liked the accused and thought he was interesting. She described him as charismatic, chatty and fun. He took an interest in the kids and would take them out on the quad bike to pick fruit. 282 NV gave evidence that count 2 took place when she was 11 or 12 years old, placing the incident in or around 1990/1991 or thereabouts. The accused would have been in the order of 32-33 years of age. I set out NV’s evidence in chief on count 2: So it was in the morning, I was - I can't remember what day it was, I was just - I think I was looking for the dog to like to play with the dog, I can't remember what everyone else was doing. Dad and [TP] might have been out already on the block. Yeah, I didn't see anyone else when I headed down that way. So I walked - so I got to the lounge room, I stood in the doorway, [KMP] was on the couch, lying down, so the couch was opposite the door. It wasn't to the right. It was kind of like diagonal, facing the door. He was undressed and he was playing with himself. And I stood there and I don't know what he said but I came over closer to him and I don't remember what he said but he had his pants down, he would have been wearing shorts because it was the summertime. I went closer to him. I was standing, like, you know, between his - you know, like in the middle of his body and I don't remember what he said but I touched him and I stroked it, his penis up and down, and then I was like 'No', I thought to myself 'No, this is not right, I don't - this doesn't feel right, I've got to get out of here' and then I just - I left. I ran out of - or I walked, I can't remember if - I just got out of there and I don't remember seeing anyone, I didn't say anything to anyone. I just acted like nothing had happened and I just didn't tell anyone what had happened. I just acted like everything was normal and that's it and I just acted - and I just tried to not spend time with him from then on. 283 NV went on to say that she was ‘pretty sure’ the lounge room door was open as she approached but she could not be certain. She did not however remember opening the door to the lounge room. She was not sure where others were but thought her mum and grandmother would have been in the kitchen, which was at the opposite end of the house to the lounge room. 284 NV confirmed that when she was at the doorway to the lounge room, the accused said something and she approached him. He was on a sofa to the right of the doorway. His head was at the ‘door’ end of the sofa. He was naked from the waist down and was masturbating. 285 When NV was asked why she went over to her uncle in these circumstances, the accused having said something she could not recall, NV explained: A. I was curious I guess, I don't - I - I suppose I wanted to find out why he was doing that, I don't - I can't pinpoint why I would do that. I don't know. I just can't - Q. You tell me but did it relate in any way to something that your Uncle [KMP] had said that led you to go over towards him. -- 65 of 114 -- [2024] SADC 100 64 A. It could have, I just can't recall what he said to get me to come over closer to him. Q. When you went over to him was he still masturbating. A. I think he'd stopped and then he got me to put his hand on it to - and then he was telling me what to do, to go up and down or a way to touch him. Q. You said there 'he got me to put his' - to put my hand on him, is that right. How is it that he got you to do that. A. I don't know. I can't - I can't recall - just - I just remember doing it, that's all I remember. Q. As I understood your evidence you said 'he got me to put my hand on his penis'. A. Yep. Q. 'And he told me what to do'. A. Yep. Q. Why was it that you put your hand on his penis, was it in response to anything your Uncle [KMP] had said. A. Sorry, can you repeat that? Q. Yes. When you put your hand on your Uncle [KMP’s] penis was it in response to something that he had said. A. Yep, but I can't recall what he'd said, so I just - all I just remember is the actions that I did. Q. But you have a recollection of that being in response to something your Uncle [KMP] - A. Yep. Q. - said to you. A. Yep. Q. Where did you touch him on his penis. A. I remember on the shaft and on the tip, I remember touching it, like going up and down of the shaft and then just - it was just for probably a few seconds and then I thought to myself 'No, this is not right, I just - nup - I just can't - can't do this, I've got to get out of here'. Q. Can you say whether his penis was erect or not. A. I reckon - I think it was - sorry - I can't - yes, it was. I don't know if he's circumcised, I don't know if he is not circumcised, I can't recall that but it was definitely erect. Q. And at the point that you put your hand on the shaft or tip of his penis and began stroking it with your hand, did he say anything to you. -- 66 of 114 -- [2024] SADC 100 65 A. He probably - he would have but I can't remember, I can't remember the words, I can't remember what was said. Because from that moment I had pretty much blocked it out of my mind. I just - just little bits I remember. I can't remember things exactly, yeah, I just - it's just some things I remember and some I don't and what's been said I don't remember. Q. I just want to make sure I've got your evidence right. A. Yep. Q. And you tell me if I've characterised it wrong. You've walked to the lounge room, you've seen your uncle with his penis out stroking himself on the couch. A. Yep. Q. He said something to you but you don't recall what. A. Yep. Q. And you've gone over to your uncle, is that right. A. Yep. Q. He's then said something further to you which has led you to put your hand on his penis. A. Yep. Q. And you've put it on the shaft or the tip of his penis, is that right. A. Yep. Q. And you've moved your hand up and down for a few seconds. A. Yep. Q. You believe your Uncle [KMP] said something to you at that point but you're not sure what. A. I don't want to say he said this when he might not have. I just - Q. I'm only asking if you've got a positive memory. So you're not sure. A. I'm not sure. Q. And after a few seconds of doing that. A. Yep. Q. You thought to yourself 'This is not right'. A. Yeah. Q. And you left the lounge room. A. Yeah. -- 67 of 114 -- [2024] SADC 100 66 Q. Have I got your evidence right. A. Yes. Q. At any point did your Uncle [KMP] ejaculate. A. No. Q. When you were in the lounge room. A. No. 286 NV did not tell anyone about the incident as she was embarrassed and did not think anyone would believe her. Other incidents 287 From the time of the alleged commission of count 2, NV tried to avoid being alone with the accused, but she mentioned two occasions on which she came to be with the accused by herself. 288 The first occurred when NV was on a cherry picker alone with the accused and he was positioned behind her which prompted NV to get down and move away. 289 The second occasion was described by NV as follows: A. There was another incident where he tried to get me in the shed and to come look at something, it was either come look at some kittens or a tractor or a car, it was something in the shed that he wanted me to look at and I was like no, no, no, I can't. I made an excuse and said 'No, I've got to go do something else' or 'go and help mum in the kitchen', or something, I just made excuse to not be alone with him. Q. And as best you can if you're able to, can you reference that to the incident in the lounge room and how long after the lounge room incident that was. A. It probably was in the same trip, that same week that we were there. I can't recall like if it was a day later or two days later. It wasn't like two years later, it was - it would have been in that same trip, that same trip to Moorook. Q. You talked about kittens, were there kittens at the farm at some point. A. I think so. I can't recall seeing kittens. There probably - there would have been stray cats around with kittens and the shed was a good place for a mother cat to be hiding her kittens. Yeah. Q. Putting to one side seeing kittens at the house, is that something that you recall your Uncle [KMP] asking you or inviting you to go look at the kittens in the shed. A. It was either kittens or a car, I think he had - or a piece of machinery or something, there was - it was something to do with the shed, just seeing what's in the shed and getting me alone and that's what put me on guard, was like I can't - I don't want to be alone in the shed with him. I can't do that. -- 68 of 114 -- [2024] SADC 100 67 290 The prosecution did not suggest any particular use could or should be made of these two events and given the vagueness of NV’s evidence, that concession was appropriate. I disregard this evidence. Discussions with AP 291 In June 2017, NV, who was then living in Bordertown, visited Adelaide for a friend’s birthday party. Whilst in Adelaide, she received a message from AP that she was in the Royal Adelaide Hospital. NV offered to visit AP and subsequently attended the hospital. During the visit, AP told NV that she had been abused when she was younger. 292 NV said that she then told AP ‘about my incident with [the accused]. [AP] didn’t tell me who had done anything to her and left it at that and I just told her what I’d gone through’. NV elaborated: A. I told her that he had touched me but then I came to later on realise it was all a bit - it wasn't clear in my mind, then I came to the realisation that no, it was actually the opposite, I touched him because he wanted me to touch him. Q. But in terms of the act itself. A. Yep. Q. Did you go into any detail about what exactly took place. A. No. I just - Q. And same question the other way, did [AP] go into any detail about the abuse she'd experienced. A. No, she just told me the age she was at, the ages - from, yeah, from - Q. I won't go any further on that question - A. Yep, okay. Q. - [NV]. Was that the extent of your conversations with [AP] about Uncle [KMP]. A. Yep. Yep. I think we talked about other stuff but yeah, that's what I remember talking to her about. Q. But in terms of discussions about, describe it in this way, sexual abuse by Uncle [KMP], that was the extent of it. A. Yep, didn't go into any detail. Didn't tell anything. Discussions with KH 293 At some point after her conversation with AP, and in the context of ‘when it first all came out’, NV had a telephone discussion with KH about the accused. Asked what ‘detail’ she provided during this conversation, NV said: -- 69 of 114 -- [2024] SADC 100 68 A. Not the detail that I've told you today, just that 'Uncle [KMP] made me touch him', that's all, that's all I've told her and she knows in the lounge room, that's - yeah, I haven't gone in any other detail. Q. Has [KH] at any point spoken to you about what happened between her and Uncle [KMP]. A. She's only told me a little bit, not a lot. Q. Was that during that same conversation. A. Yeah, would have been. Q. Casting your mind back, same question, what did [KH] tell you. What detail did she provide you with. A. She told me about being in a sleeping bag with him and him touching her and that's all she's told me. I haven't pressed for more details and she hasn't given me more details. Cross examination 294 In cross examination, NV agreed that the first time she told anyone of her allegations against the accused was during her hospital visit with AP. NV agreed further that she had told AP that the accused had touched her, adding ‘that’s what I had believed at the time’. As I have earlier mentioned, the prosecution did not rely on this disclosure as an initial complaint and the evidence is only relevant to the questions of collusion, contamination, as an inconsistent statement by NV, and when comparing the evidence of NV and AP as to the content of their discussions. 295 NV said that AP told her she too had been abused but she would not say by whom, nor did she detail any alleged abuse at that time other than to say how old she was – namely, between the ages of six and 15 – and that it was someone ‘close to the family’. AP did not subsequently disclose further details to NV. 296 NV agreed that she stayed at AP’s house on 26 January 2018 before she and AP went to the beach. She said that she had some contact with AP thereafter by way of messages. 297 With respect to discussions with KH, NV said that when she visited Darwin for the purpose of her uncle LSP’s funeral, she caught up with her cousin TLP who made a phone call to KH which was placed on ‘loudspeaker’. NV said it was possible that allegations were discussed during that call and it may have been during that call that KH told her that she had been in a sleeping bag with the accused and that he was ‘touching her, rubbing up against her’. KH did not specify how it was that the accused was touching her or where the incident took place. 298 NV said that whilst she had since spoken with both KH and TLP separately, she had not further discussed her allegations against the accused with them. There was, NV said, no need to, given that they had already been discussed. -- 70 of 114 -- [2024] SADC 100 69 299 NV acknowledged that she had stayed overnight with KH in or around October 2019 but said she had not seen her since then. NV said further that she had kept in contact with KH via phone as they were quite close, but NV was always mindful not to talk about the case. 300 Later in her cross examination, NV was taken back to the form of her disclosure to AP and in particular her description of the alleged abuse as involving the accused touching her, which stands in obvious contrast to NV’s evidence about count 2. 301 NV explained that it was not until she was providing a statement to police that she came to the realisation that in fact the accused had said something to her to make her touch him. NV said she had ‘blocked it for so long and having to revisit all this has made me question what actually has happened, what happened, how, why. Obviously I knew where’. The cross examination proceeded: Q. Prior to providing that statement, did you say you weren't really sure in your memory what had occurred. A. Yeah, I wasn't sure. Q. And even when giving that statement, there still were a lot of things that you were even today not sure about. A. Yep. Q. You've told us that for some reason you believe you were around 11 or 12. A. Yes, that's right. Q. But you can't explain why you believe that. A. No. I don't know how I can explain it. I can't pinpoint why I can say that I was that age, only that I wasn't a little girl and I wasn't a teenager and I know that I must have been over 10. Q. Why do you know you must have been over 10. A. I can't explain it, I'm sorry, I don't know. 302 NV agreed that, on her evidence, the accused did not touch her body and she could not remember whether he touched her hand. She said that at some point in time, consistently with her disclosure to AP, she believed the accused had touched her; but she now believes that she touched the accused. When it was put to NV that she might be wrong that she in fact touched the accused, NV responded ‘No, no, I definitely did touch him’. 303 As to the circumstances surrounding the charged act more generally, NV said in cross examination that she believed that there were no other family members visiting the Moorook property on that occasion. -- 71 of 114 -- [2024] SADC 100 70 304 NV thought the incident in the lounge room occurred in the morning but was unable to explain why that was so other than to say that ‘I guess it wasn’t in the afternoon’. NV said she believed she was looking for something when heading to the lounge room – perhaps the dog. She was unable to say where other members of the family were but assumed her mother was helping her grandmother in the kitchen. 305 NV agreed that her evidence in chief was that the accused was naked on his bottom half when she saw him in the lounge room. It was suggested this was inconsistent with a statement NV gave to the police in September 2019: Q. When you spoke to the police in August - sorry, in - A. September 2020. Q. September 2019. A. Yep. Q. You provided a statement that you later signed. A. Yes. Q. Checked and signed. In that statement, did you tell the police also that you're actually not sure if they were pulled down to his knees or just to his upper thighs or something like that. A. Yeah, I can't remember. I can only assume that they were down to his ankles and I don't want to assume. I'm trying to remember to the best of my ability. Q. You're not really sure where they were is, I guess, where I'm getting at. A. Yeah. Q. You're not sure what he was wearing on his top half either. A. I can't remember. Q. You said he was probably wearing shorts because it was summer. A. Yes. Q. But you're not entirely sure about that, you just make that assumption because of the weather. A. He used to wear shorts a lot. I don't recall seeing him in pants very often. Q. Could you say if he was wearing underwear. A. I don't recall seeing underwear. -- 72 of 114 -- [2024] SADC 100 71 306 NV confirmed that she could not remember any particular words that the accused spoke during the incident or whether he said anything to her as she left the room. She said that she never spoke to the accused about the incident. 307 NV was asked whether it was possible that when she entered the lounge room the accused was changing his clothes; that he had underwear on and that his penis was not in fact exposed. NV rejected these propositions, save that she said she did not see any underwear. 308 In re-examination, NV was asked to explain her evidence that she had, at some point in time, thought that it was the accused who had touched her as opposed to her touching the accused. NV explained: A. Just that he'd, just that he had touched me. That's what I originally had been believing all these years and then - but then it did bring to this, with Sheree Rethus, the detective, I had - I must have realised that that was not the case, it was really that I'd - with his, how do I say it - with his talking to me and saying things made me - was one that - I don't know how to describe this. It was me that was the one that touched him, yeah. Like I can definitely say that he didn't touch me at all. Q. Is it the case that the act - what happened between yourself and your uncle, you touching his penis, is it the case that that has changed in your memory or is it the case that your perception of who was responsible - HIS HONOUR: Mr Mulvihill, that's - if it's not leading it's very close. I think you best reformulate that one. HIS HONOUR Q. Perhaps, [NV], to the extent that you can, can you tell me to what extent if any your recollection of the incident in the lounge has changed over time. A. Now that I know definitely that it was me that touched him it's changed. It's everything - I don't know what to say, I don't know. Q. In what way. A. I don't know. I question my memories about it. Q. You gave an answer to Ms Demertzis when she was asking you questions in which you said that you 'began to question what happened'. A. Yes. Q. What did you mean by that answer you gave. A. Can you say that again? Q. When Ms Demertzis was asking you questions, and it might have been in the context of you making reference to giving the statement to Sheree, you said that you 'began to question what happened', in other words that's what you said to me, you had begun to question what happened. -- 73 of 114 -- [2024] SADC 100 72 A. It happened so long ago. I'm now 34 [sic], so it's a long time that it's happened, so a lot of things that - I mean the incident I had blocked out, there's only certain bits that I remember. It's not something that I think about every day so it's not fresh in my mind. To me like it's very deep down below other layers of stuff going on in my mind. It's not something that I just constantly thought about. MR MULVIHILL: I'm going to revisit that topic. REXN Q. Has the act itself of you touching your uncle's penis - A. Yep - Q. - has your memory of that act changed in any way over the last 30-odd years since the act took place. A. No. Q. So the act has remained unchanged. A. Yes, I just can't remember the conversation, the type of talk that we had. I can just remember the thought I had was that it was not right, I had to get out of there. I just - that's, yeah, what I can remember. HIS HONOUR Q. I think you've in part addressed this previously but it was what Mr Mulvihill was driving at a little earlier. When you told [AP] that - I think it was [AP] - that your uncle had touched you, why did you tell her that. A. I don't know, I guess I wanted to - I wanted to give her some - Q. Just to pause, sorry, just to interrupt you. What I mean is why did you tell her that your uncle had touched you when, as I understand your evidence, the position now is that you touched his penis. A. Yes, that's what I believed at the time, that's what I had in my thought process. It's not - and when I came to that realisation that it was the other way around I suppose I was a bit shocked, devastated, embarrassed, and I probably - I don't know - I just, yeah, I just changed everything I guess. Q. When do you say you came to that realisation that it was the other way around. A. When I was talking to Sheree, giving Sheree Rethus my evidence. It just unlocked something in my memory. Evidence of JMP 309 JMP, the mother of NV, gave evidence in the prosecution case. As I have earlier mentioned, CS is the younger sister of JMP. 310 JMP married BP – one of the sons of TP and BeP – in 1974. -- 74 of 114 -- [2024] SADC 100 73 311 JMP confirmed that when NV and her sister were growing up, the family would drive from Darwin to Moorook during school holidays to visit BP’s parents (NV’s grandparents). The accused lived at the property with BP’s parents. 312 JMP said that NV and her sister were given considerable freedom to explore the Moorook property during their visits. 313 There was no cross examination of JMP. Submissions of the parties 314 Mr Mulvihill commended NV as a matter of fact witness who, he argued, was clearly endeavouring to tell the truth. Her evidence of count 2, he submitted, made it clear that she came to touch the accused’s penis in response to something that he had said, albeit she was unable to detail the words spoken by the accused. Mr Mulvihill said NV’s evidence established an act of procurement or incitement and that it was not necessary for her to recount precisely what was said. Mr Mulvihill argued that the fact that NV – then a child of 11 or 12 years of age – came to be stroking her uncle’s penis in response to something he said was sufficient evidence from which I could infer the utterance of words amounting to a procurement or incitement. 315 Mr Mulvihill said that NV’s disclosure to AP that the accused had ‘touched her’ and her explanation about realising this was incorrect when providing her statement was an important matter to consider when evaluating the reliability of NV’s evidence, but relied upon her evidence in re-examination as capable of remediating any concern that might arise. He submitted further that the suggested inconsistency between NV’s statement, in which she implied that the accused was wearing pants and that she was unsure if they were just pulled down to his thighs, and her evidence in chief that the accused was naked, was of no moment. 316 Mr Mulvihill argued further that there was nothing implausible about NV’s account, which simply reflected brazen and opportunistic offending by the accused which was vividly recalled by NV. 317 Ms Demertzis began her submissions on count 2 by emphasising the uncertainty that NV herself had experienced in relation to the nature of the alleged incident. She argued that NV’s evidence demonstrated that, until she spoke with Detective Rethus, NV thought that something different had happened as between her and the accused. This was reinforced by the fact that NV told AP that the accused had touched NV; whereas her evidence was that the accused somehow had her touch his penis. Ms Demertzis submitted that it was concerning that NV’s memory that the incident actually involved her touching the accused was ‘unlocked’ during the statement taking process. The shift in NV’s position about whether the incident involved the accused touching her or her touching the accused was said to be so significant that I could have no confidence in the reliability of NV’s account. -- 75 of 114 -- [2024] SADC 100 74 318 Ms Demertzis said further that NV’s description of the incident was implausible. She contended that it was inherently unlikely that the accused would be lying on a sofa, in a common area of the house, masturbating during the morning, knowing that NV and her family were staying at the Moorook property at the time. Ms Demertzis asked rhetorically why the accused would choose to masturbate in a common area of the house when he had the privacy of his bedroom available to him? 319 Ms Demertzis also submitted that, even if I accepted NV’s evidence beyond reasonable doubt, I would be unable to conclude that the accused had incited or procured NV to masturbate him. Observations as to evidence of NV 320 NV was an impressive witness. Her evidence was thoughtful and careful. She was unconditionally frank about the limits of and evolution in her memory and presented as a witness who was doing her best to give truthful and accurate evidence. To my observation, there was a sincerity about NV’s evidence. 321 There are however a number of features of NV’s evidence that require careful scrutiny and to which I now turn. Analysis of count 2 Collusion, contamination and inconsistency 322 It is common ground that NV had discussions with KH and AP about their respective allegations. 323 According to NV, KH told her about being in a sleeping bag with the accused and him touching her and rubbing up against her. NV said she told KH that the accused had made her ‘touch him’ in the ‘lounge room’. 324 As I have earlier discussed, KH’s evidence was that NV had told her that the ‘same thing happened to her’ in response to KH disclosing that the accused had ‘touched her’. 325 I have earlier indicated that I accept the evidence of NV as to the detail that was exchanged between her and KH. I accept then that NV was aware that KH alleged that the accused had touched her and rubbed up against her in a sleeping bag. 326 AP told NV that she had been sexually abused by someone close to the family between the ages of six and 15. NV told AP that the accused had touched her, which is inconsistent with the nature of the incident NV alleges took place in the lounge room. 327 AP’s evidence was that she could not recall a conversation with NV at the Royal Adelaide Hospital, although she recalled NV visiting her. AP said she was -- 76 of 114 -- [2024] SADC 100 75 heavily medicated whilst in hospital frequently from 2015 and could not recall conversations. 328 As to the beach conversation, AP’s evidence was that NV disclosed being abused to AP but AP did not make any such disclosure to NV. 329 I prefer the evidence of NV to AP in relation to the conversations that passed between them. I consider that AP’s memory of those conversations is likely affected by the fact that she was in hospital and being medicated in and around the time of the conversations. 330 The fact that NV told AP that the accused had touched her is, I accept, not insignificant, particularly when viewed together with what NV described as her realisation when giving her statement to police that she in fact touch the accused. 331 The disclosure made by NV to AP does not, in substance, reconcile in any way with NV’s description of what happened in the lounge room but there is no evidence that the disclosure was accompanied by a detailed narrative from NV about, for example, how the accused ‘touched her’. NV quite candidly said that she believed for a long time that the accused had touched her. She also accepted that prior to providing her statement to Detective Rethus, she was unsure about what had occurred; but when pressed with the suggestion that she might now be wrong to say that she touched the accused, NV responded ‘No, no, I definitely did touch him' and in re-examination, NV explained that her memory of the act that took place in the lounge room has not changed. 332 As Mr Mulvihill submitted, NV’s evidence in re-examination might be thought to convey an unchanged memory about the nature of the interaction but perhaps an unwillingness to characterise the interaction as involving her touching the accused for reasons of embarrassment. Other aspects of NV’s evidence suggest that she previously believed that the accused had touched her; that there was some uncertainty in her memory and that this uncertainty essentially dissipated when she gave her statement to the police and had the ‘realisation’ that what happened was that she touched the accused. I will consider this issue on the latter basis. 333 NV accepted that other aspects of her memory were unclear, including what time of the day it was; where others were at the time; or what it was that saw her approach the lounge room in the first place. Equally, she was not able to say why she thought she was over 10 years old at the time of the incident. 334 It is important to consider these features of NV’s evidence together with the inconsistency between NV’s statement to the police in which she said that she was not sure whether the accused’s clothing on his bottom half was lowered to his knees or upper thighs and her evidence that the accused was naked from the waist down. 335 There is, further, the defence contention that the circumstances in which NV claims the accused had her masturbate him are simply implausible. As I have said, -- 77 of 114 -- [2024] SADC 100 76 counsel relied in this respect on what was said to be the inherent unlikelihood of the accused engaging in such risky behaviour in a common area of the house, of a morning, and in circumstances where he knew that there were four adults at the property. 336 It is important to look at the initial disclosures made by KH and NV that the accused touched them and the inconsistency of those disclosures with the allegations made by KH and NV of the accused forcing them to touch him, in the context of their discussions with each other and AP. The defence case, in part, is that the parallel evolution in their accounts from the accused touching them to the accused forcing them to touch him is troubling and may reflect the possibility that each of their recollections has been influenced by what the other has said. 337 I have given these matters anxious consideration. I have reviewed all of the criticisms that have been made of NV’s evidence collectively because, for example, inconsistencies in NV’s characterisation and description of count 2 might be thought to bespeak of the possibility of a contaminated memory and, equally, the uncertainty NV acknowledged in respect of her memory might also suggest a susceptibility to contamination. I have also had regard to the accused’s denials when considering the possibility of collusion and contamination and assessing NV’s evidence more generally. 338 Having considered these matters, I reject the possibility that NV’s allegation is the product of contamination or collusion with KH, AP or anyone else for that matter. I consider the candour with which NV gave evidence about her discussions with KH and AP and the absence of any indication that she was minimising or seeking to obscure the fact and extent of those conversations to be wholly inconsistent with the possibility of collusion. The prosecution has disproved collusion beyond reasonable doubt. 339 I am also persuaded beyond reasonable doubt that NV’s evidence about what happened in the lounge room at Moorook is not the product of a contaminated memory. On the face of the discussions I find NV had with KH, the change in her belief from the interaction involving the accused touching her to her touching him shows that NV’s allegation moved further away from what KH had told her of the events in the sleeping bag. To my mind, this too speaks against the possibility of contamination. 340 Whilst I acknowledge that, on her evidence, NV was uncertain about what had happened in the lounge room until she provided her statement to Detective Rethus, she remained steadfast in her evidence that the accused in fact had her touch his penis. It is understandable that the process of giving a statement served to crystallise NV’s memory. The substance of and manner in which NV gave her evidence satisfies me beyond reasonable doubt that NV’s account does not reflect a contaminated, misremembered event. -- 78 of 114 -- [2024] SADC 100 77 341 Additionally, NV’s transparency in explaining the fact of and circumstances in which she came to the realisation that what in fact had happened was her touching the accused in response to something he said – which she found to be a devastating, shocking and embarrassing realisation - is a compelling mark of her honesty and integrity. Whilst that does not provide a complete answer to whether the ‘realisation’ impacts on the reliability of her account, it does assist me in concluding that her evidence is intrinsically credible. 342 I accept NV’s explanation that she came to realise when describing the event to Detective Rethus that, in truth, what occurred was that the accused had NV touch him. After critical examination of this important feature of NV’s account, in the context of the other asserted problems with her evidence, the accused’s denials and forensic disadvantage, I do not accept that this ‘realisation’ undermines the reliability of NV’s evidence and I do not accept that the credibility of NV’s version of events is in any way impaired on this account. NV’s categorical rejection of the suggestion that she might be wrong about touching the accused, notwithstanding conceding uncertainty in the past, gives me confidence that any uncertainty in her mind about what occurred no longer persists. NV’s account of the charged act was reliable. 343 Similarly, the inconsistencies in NV’s evidence, and the absence of detailed or clear recollections about matters of context surrounding count 2, are not such as to cause me concerns over the credibility or reliability of her evidence and nor is the suggested implausibility of NV’s account. Indeed, on her evidence, the accused simply opportunistically took advantage of the fact that she had happened upon him in a private moment. It is unremarkable, to my mind, that NV was unable to say (other than by assumption) where the others staying at the farm were at the time of the alleged offending – but, again, the absence of such detail does form part of the forensic disadvantage that the accused meets in defending this allegation. 344 As I have said with respect to count 1, a conclusion that NV is a credible and reliable witness does not dispose of the issues arising on count 2. If the accused’s denials of the offending are reasonably possibly true, the prosecution will have failed to prove its case. 345 Of course, even if I reject the accused’s denials as not reasonably possibly true, it remains for the prosecution to satisfy me beyond reasonable doubt of each element of the offence based on the evidence of NV. The question for me is not whether I prefer the evidence of NV to the account given by the accused in his interview but whether the prosecution has proved its case to the criminal standard. The accused’s denials 346 I earlier made some general remarks about the accused’s interview with police and the fact that there may be thought little more the accused could say in answer to the allegations other than to assert what is essentially a ‘bare’ denial. The same observations may be made in respect of his denials of count 2 and the -- 79 of 114 -- [2024] SADC 100 78 forensic disadvantage that the accused confronts in trying to meet an allegation of wrongdoing more than 30 years ago in circumstances where little more can be said than that the incident took place in summertime of what was probably 1990/1991. The accused has been denied the opportunity of marshalling evidence to the effect that he may have been elsewhere or with others on the occasion on which count 2 is said to have taken place. Moreover, with the passing of the accused’s parents, potentially important witnesses who may have been able to shed some light on the veracity of the allegations by NV, are no longer available. 347 I have, once again, placed considerable weight on the forensic disadvantage the accused suffers when scrutinising the prosecution evidence. 348 When confronted with NV’s allegations, the accused immediately denied them. He said twice ‘never did that’ and otherwise expressed bewilderment at such allegations being made against him. As was the case with count 1, the accused was not asked and did not go on to provide any further detail about his relationship with NV or occasions on which she visited Moorook for example. As I said earlier, in light of the age and, in some respects, lack of detail surrounding the timing of the alleged incident, there is little more that the accused might have been able to say to police – and of course, he had and has no burden to discharge and no obligation to say anything about the allegations. 349 In determining whether the accused’s denials are reasonably possibly true, I have careful regard to the various shortcomings in NV’s evidence which I have referred to. 350 As I said in the context of count 1, in light of my finding concerning cross admissibility, I may have regard to the version of events given by the accused in relation to CS when considering whether his denials of alleged offending against NV are reasonably possibly true. My assessment of whether the accused’s answers during interview are reasonably possibly true does not need to begin afresh in relation to those passages of the interview that deal with NV. 351 I earlier observed that I found that the accused was an untruthful and unreliable historian in relation to the lounge room incident with CS and my inability to accept as a reasonable possibility what I considered to be his fanciful version of events is relevant to my assessment of whether his denials relating to NV remain reasonably possible. 352 Having regard to the whole of the evidence admissible in respect of count 2, I reject the accused’s denials. NV’s evidence was persuasive, notwithstanding the imperfections in her account which I have mentioned. As I will come to shortly, NV’s evidence also derives considerable support from the cross admissible evidence of CS and KH which is highly probative of the improbability that NV’s account has been imagined or concocted. In the face of such a strong and convincing account from NV, I am satisfied that the accused’s denials can be excluded as not reasonably possibly true. -- 80 of 114 -- [2024] SADC 100 79 353 However, that does not mean that count 2 has been proved. I cannot find the accused guilty unless I am satisfied that each element of the offence has been proved beyond reasonable doubt by the evidence of NV. Conclusion on NV’s evidence 354 For the reasons I have given, I am satisfied of the credibility and reliability of NV’s evidence concerning the incident in the lounge room at Moorook beyond reasonable doubt. 355 I found NV to be a persuasive witness and the substance of her evidence to be compelling. NV’s account was coherent; measured; considered and frank. I note for example that she described her fondness for the accused as a child. She also transparently told me about uncertainty she had experienced in her memory of the lounge room incident for some time; but that uncertainty appears to have dissipated when speaking with police, which process brought clarity to her mind that it was in fact NV that touched the accused in the lounge room at Moorook. I found NV’s explanation of how she arrived at what she now expresses as a confident memory of abuse by the accused to be understandable and convincing. 356 Further, the evidence of CS and KH, which is cross admissible in relation to count 2 and which I accept, assists in satisfying me that the prosecution has disproved that NV’s evidence might be explained by independent concoction or imagination. The peculiar similarities across the accounts of CS, KH and NV, all of whom describe brazen, risky and opportunistic offending against them as young children, by a person with whom they each had a familial relationship, and involving the same kind of sexual misconduct, strongly supports the improbability that NV imagined or independently concocted her allegations against the accused. I am satisfied beyond reasonable doubt that NV’s allegations are not accounted for on the basis of imagination or independent concoction. Inciting or procuring 357 I turn then to address the contention that, even if accepted, NV’s evidence could not prove that the accused incited or procured her to touch his penis. It will be recalled that NV gave evidence that: 1. As she stood at the doorway to the lounge room, the accused ‘said something’ and she approached him because she was curious. 2. After approaching, the accused got her to put her hand on his penis (but she could not say how) and was ‘telling me what to do, to go up and down or a way to touch him’. 3. She put her hand on the accused’s penis in response to something he said but she could not say what the accused said. 4. She could not recall what if anything the accused said to her when she had her hand on his penis. -- 81 of 114 -- [2024] SADC 100 80 5. NV had ‘blocked’ it out of her mind and only remembered ‘little bits’. 358 Despite being unable to recall the details, NV was ultimately clear that she put her hand on the accused’s penis in response to something he said and that he told her ‘what to do, to go up and down or a way to touch him’. It is unsurprising that NV is unable to remember what the accused said to her in the course of an incident said to have taken place more than 30 years ago. Nonetheless, I acknowledge that NV’s uncertainty is important to my assessment of the reliability of her evidence, including her evidence that she touched the accused’s penis in response to something he said, particularly when viewed in the context of (1) the factually inaccurate disclosure she made to AP that the accused had ‘touched her’; (2) that she initially believed that the accused had touched her; (3) that her realisation that it was in fact her who touched the accused was ‘unlocked’ during the statement taking process; (4) the inconsistency in NV’s evidence as to whether the accused was naked on the bottom half or had some pants or shorts lowered to his knees or upper thighs during the alleged commission of count 2. 359 Having carefully examined these matters, together with the other asserted problems in NV’s evidence upon which counsel for the accused relied, I am satisfied beyond reasonable doubt that NV came to touch the accused’s penis in response to something he said to her and that he told her what to do, ‘to go up and down’. I do not need to make a finding about exactly what was said, and indeed the evidence does not permit me to do so; but I am satisfied beyond reasonable doubt that the accused caused NV to touch his penis. 360 I reject as unrealistic and unreasonable the hypothesis that NV may have unilaterally determined to touch the accused’s penis, without any form of invitation, encouragement or direct or indirect coercion from him. Having regard to NV’s age at the time; the accused’s age at the time; the nature of the act the accused was engaged in when, I find, NV came across him; that the accused said something to NV and she approached him and that NV ended up touching the accused’s penis in response to something he said and moving her hand on his penis as he told her to, I am satisfied beyond reasonable doubt that the accused intentionally incited or procured NV to masturbate him in that he brought about or caused NV to touch his penis when she was 11 or 12 years old. I find that the act so incited or procured was a grossly indecent act having regard to contemporary community standards. 361 I am satisfied beyond reasonable doubt of all of the elements of count 2. 362 I find the accused guilty of count 2. Count 3 – maintaining an unlawful sexual relationship with a child 363 Count 3 is a charge of maintaining an unlawful sexual relationship with a child, namely, AP – the youngest of the three complainants. AP’s father, RP, was the youngest of the seven children of TP and BeP. -- 82 of 114 -- [2024] SADC 100 81 364 The particulars of the charge allege the commission by the accused of two acts of unlawful sexual intercourse by inserting a finger or fingers into AP’s vagina or causing her to perform fellatio upon him; an act of indecent assault by the accused causing AP to masturbate his penis; and committing an act of gross indecency by masturbating in AP’s presence. 365 AP was born in September 1996. She was 26 at the time of trial. 366 AP grew up in Roxby Downs but attended boarding school in Adelaide during her senior school years. 367 AP visited the Moorook property with her parents and her older brother B two or three times a year from the age of five or six until TP passed away, which other evidence suggested was in 2007. AP said that thereafter, visits to Moorook were less frequent and when BeP was diagnosed with dementia, they decreased in frequency further still. 368 The accused lived at the Moorook property throughout the period that AP visited and stayed with her parents. 369 By reference to her plan of the property, AP explained that when visiting as a young child, she initially slept in a spare room next to TP and BeP’s room in which her parents also slept. However, when older, AP would share another spare room with her brother B which was directly opposite the kitchen and had a common wall with the accused’s room. AP described the door to the accused’s bedroom as a ‘big heavy wooden one’ that was only closed at night when the accused went to bed. 370 AP said she had what she considered to be a close relationship with the accused, who she thought of as her ‘favourite uncle’ because he would involve himself in activities on the property when AP and her family visited. He would take AP out on a quad bike or the tractor to look at the tools and farm machinery; he would take AP up in the cherry-picker and otherwise do ‘fun things’ with her. 371 In cross examination as to sleeping arrangements during visits to Moorook, AP said there was no fixed rule about which of the spare rooms she would sleep in. She said that sometimes she would sleep in the spare room with her brother, as marked on P8, and sometimes she would sleep in the spare room with her parents. Amongst other things, where she slept might depend on how she was getting along with her brother. 372 AP was asked about her age in the photographs P9 that depict her, the accused and her brother. AP was not able to say how old she was in any of the photographs. Particular (a) - first incident 373 AP said the first incident of alleged abuse by the accused took place when she was six years old. AP and her family were staying at the Moorook property. -- 83 of 114 -- [2024] SADC 100 82 The incident occurred in the evening. The adults,23 AP and AP’s brother B were in the lounge room when the accused told AP he wished to show her something. AP assumed the accused wanted to show her a gadget or something similar as the accused was known as the ‘Gadget Man’. 374 The accused took AP to his bedroom. AP sat on the accused’s bed, which she described as being a ‘very high bed’. Once there, he turned away from AP and was facing the wardrobe (as depicted in P10) in the room as if grabbing something. He then turned back to AP, who noticed there was nothing in his hands. The accused reached out towards AP and pulled her pyjama pants forward. AP gave the following evidence about what happened thereafter: A. He forced his hand down between my legs toward where my crotch is, into my vagina, moving his hands around. It hurt, I remember it hurting a lot. I was stiff, I was still, I couldn't move, I remember blood pounding, pounding me, and suddenly just then it stopped and his hand liked pulled out of my pants as he turned towards the door and he just turned back to me and like 'You can't, you can't tell anyone about this. If you do we'll get in trouble'. Well it was like not 'We'll get in trouble', 'You'll get in trouble'. 'It's our secret, it has to be our secret, has to be our secret'. And then he turned and left and I ran to the bathroom and I remember there being blood. XN Q. I want to take you back to when you went into your Uncle [KMP’s] bedroom. As I understood your evidence you were sitting on his bed. A. Yes. Q. And your Uncle [KMP] put his hand - he pulled out your pyjama pants. A. Yes. Q. Can you just describe how he did that. A. Could you please rephrase? Q. Yes, how did your Uncle [KMP] pull out your pyjama pants. A. Like they were elastic pyjama pants, he just like forced his hand down and like pushed his hand in and like grabbed it and pulled it out. Q. So he did that with the one hand. A. Yes. Q. Pulled it on the elastic waist then put his hand down your pants. A. Yes. Q. Were you wearing anything underneath your pyjama pants. 23 Except for AP’s grandfather who AP thought may have been listening to his radio in his bedroom. -- 84 of 114 -- [2024] SADC 100 83 A. Yes, underwear, I always wear underwear like, never not wearing underwear. Q. Did he pull out your pyjama pants and your underwear. A. Yes, both at the same time. Q. What did he do with his hand then. A. He forced it down towards my pubic bone and vagina. Q. Can you describe what your uncle did with his hand when it was underneath your pyjama pants and underwear. A. He was moving his hands and fingers around everywhere. Q. Where was he moving his fingers. A. In my vagina. Q. What was he doing with his fingers in the area of your vagina. A. Moving them around, like pushing them in and out and pulling them around and really hurting me. Q. When you say 'pushing them around and pushing them in' what exactly did he do with his fingers in the area of your vagina. A. I don't really know how else to say without what I've just said. 375 AP subsequently clarified that the accused put one finger in her vagina. 376 According to AP, the door to the bedroom remained open during this incident. 377 The accused’s tone when he told AP she could not tell anyone about the incident was ‘forceful, like a barking tone…like it was a command’. AP was scared. She did not know what was going on. 378 AP said she could not remember who left the bedroom first but she went directly to the bathroom upon leaving. AP then returned to the lounge room and told her mother that she was going to bed. She did not know where the accused was. 379 AP tried to keep to herself the following day and otherwise ‘stuck with mum and nan and doing the cooking and stuff’. She did not complain to anyone about what had happened as she was scared she would get in trouble. 380 In cross examination, AP confirmed that she thought she was around six at the time of this incident. When asked to explain why she thought she was six, AP said ‘I think when you turn six people make a big deal out of it, like you start school...you just remember that age, six. I just remember being six’. -- 85 of 114 -- [2024] SADC 100 84 381 She confirmed that her parents, her brother and her grandmother were in the lounge room; her grandfather was in his room, across from the lounge room, listening to his radio. AP said her grandfather would customarily have his radio too loud – such that it could be heard down the hallway – often prompting her grandmother to yell at him to lower the volume. 382 This was the context in which the accused told AP he had something to show her, without telling her where. This was, she said, a common occurrence and AP would often go into the accused’s room – even when he was not there - as she was very curious. When asked whether she was ‘sure’ about what subsequently happened in the accused’s bedroom, AP responded ‘yeah’. 383 AP said that after the incident, she told her mother that she was going to bed which, at the time, was in the spare room typically occupied by her parents. AP said that it was not until she was seven or eight that she started sleeping in the other spare room with her brother. Particular (b) – second incident 384 AP said that the second episode of alleged abuse took place about a week after the incident in the accused’s bedroom, and during the same stay at Moorook. 385 AP was climbing a large tree near the main house when she saw the accused drive some farm equipment into the long rectangular shed depicted on P3, that was used for storage of tools, a car and other farm related equipment. The shed was accessible via a series of roller or sliding doors along one side of it, as marked on P11. AP’s evidence continued: A. I went into the shed. I kind of was, I kind of always looked for an opportunity to go into the shed to touch all the equipment and stuff, but I never wanted to go in by myself, I guess I was scared of the unknown. So as soon as someone was in there I kind of felt safe and I started making my way through the shed from the house and down to the end that Uncle [KMP] was putting something away, and I think I was just like playing with something, like playing with some tools on the bench and then I heard someone, who was Uncle [KMP], come up behind me and I turned around and he was there with his penis and testicles hanging out of his pants. Q. What happened then. A. He - well, I was standing there kind of shocked and he, he started jacking himself off and as he continued to do it, he told me, well, basically like asked me to do it and I didn't move and he like grabbed my hand and pulled me over and was like doing it with his hand and my hand and then he stopped and my hand stopped with his and he like aggressively said 'Keep going' and I did because I was scared. Q. What were you doing at that time. A. I, I was giving him a hand job, I was stroking his penis. Q. By 'hand job', can you describe what you were physically doing with your hand. A. Rubbing my hand up and down his penis. -- 86 of 114 -- [2024] SADC 100 85 Q. And where was his hand at the time that you were doing that. A. He put it, I think he just relaxed it to the side of his body, after he like had made me do it. Q. By 'making me do it', or 'he made me do it', what had he done initially. A. Grabbed my hand, put it on his penis and like forcefully made my hand stroke his penis up and down. Q. And when he was forcefully making you stroke his penis, where was his hand. A. On my hand, on top of my hand. 386 When asked to elaborate on what the accused said to her during this incident, AP said: Q. You gave evidence that 'he asked me to do it'. A. Yes. Q. I just want you to cast your mind back and if you can, can you tell us the words that your uncle used. A. 'I want you to like, I want you to rub my dick'. Q. Did he say anything else about - A. 'You have to, it's part of, it's part of the secret. If you don't do it you'll get in trouble'. Q. So just to clarify, that was 'I want you to rub my dick, you have to, it's part of the secret, if you don't you'll get in trouble'. A. Yeah. Q. And in your mind, what did you understand 'the secret' to be referring to. A. Whatever I did with him in private. Q. Is that the first incident that you told us about. A. Yeah. Q. How did hearing that from your uncle make you feel. A. Scared. Q. Again, why were you scared. A. I had no idea what was going on. Q. And what effect, if any, did him saying 'You have to do it, if you don't you'll get in trouble, it's part of the secret'. What effect did that have on you. A. I felt obliged, I thought I had to, I didn't want to get in trouble. -- 87 of 114 -- [2024] SADC 100 86 HIS HONOUR Q. [AP], a moment ago you told me that your uncle said 'I want you to rub my dick'. Do you have a recollection of him using the word 'dick', when he spoke to you. A. No, I think that's just the word I'm using because I'm - it's hard for me with words. XN Q. Are you able to, and if you're not you're not, but are you able to recall the words your uncle used when he asked you to do something in the shed. A. No. Q. In any event, do you have a memory of your uncle asking you to do something. A. Yes, I remember him asking me to do it. Q. And 'do it' related to stroking his penis. A. Yeah, asking me to rub it and like pulling my hand and making me do it and then moving his hand away and I actually stopped and him saying I had to and to continue. 387 The roller door adjacent to where AP marked on P11 ‘us talking’ was open during the incident however there was a tractor and other equipment between the door and the position taken up by the accused and AP such that, according to AP, someone standing outside the shed and looking in would have only been able to see the accused from his shoulders up. The accused had his back to the roller / sliding door. 388 AP said the incident came to an end because of a noise at the end of the shed or outside the shed. The accused turned away; pulled up his pants and walked off to a different part of the shed. AP ran out of the shed and into the bathroom where she washed her hands. AP was unsure whether anyone else was in the house when she went to the bathroom. 389 Again, AP did not disclose the alleged abuse to anyone because she was scared and did not want to get into trouble. 390 In cross examination, AP confirmed that the sliding or roller doors at each end of the shed were open on this occasion. It was put to AP that all that happened in the shed was that she and the accused spoke and that was why she had written on P11 ‘us talking’. AP disagreed. 391 AP accepted that it was not uncommon for the accused to be in the shed and for her to ask him questions about items in the shed; but she otherwise maintained her evidence in chief. -- 88 of 114 -- [2024] SADC 100 87 Particular (c) – third incident 392 AP initially gave evidence that she thought the third incident of alleged abuse occurred three to four years later, when she was nine or 10 years old, and again during a family visit to Moorook. 393 However, later in her examination in chief and after an overnight adjournment, AP said she was ‘pretty sure’ she was in fact seven years old when the third incident occurred and that it was a year after the ‘first’ and ‘second’ incidents in the accused’s bedroom and rectangular shed. 394 On this occasion, AP had gone with the accused to the shed on the corner of Kingston and Wachtel Roads that had, at one time, been the original farmhouse and, at another, served as a horse stable. 395 She summarised the events in the shed in the following terms: A. I think it started up at the house. I think Uncle [KMP] said something about going down to the shed to either grab something or do something. We went down on the quad together and I was really excited because I love going on the quad, like it's not something I get to do in Roxby, it's just very fun for me. We went down there, we both got off the bike and we entered the shed. I remember looking around like just kind of wandering around on my own and there's like two big rolls of cardboard and not much else, just - yeah, then I remember turning around and Uncle [KMP] was there and he told me he was gonna show me something I hadn't seen before and his penis was out and he started masturbating himself, and I don't know how far back I was, but he just continued until he ejaculated, and then he just kind of walked out of the shed and I heard the bike leave because I was just standing there, and I eventually made my own way back up to the house because I was just - I was just - I was - I was just so shocked and overwhelmed. Q. I want to take you right back to the beginning. I think your evidence was your Uncle [KMP] invited you to go on the quad bike. A. Yeah. Q. And was that to go see the old shed at the other end of the property. A. Grabbing something from there, grabbing something he needed. Q. You then got on the quad bike and went with your uncle down to that shed. A. Yeah. Q. Did your uncle say anything to you before you entered the shed. A. No, we just got to quickly go down and grab something and needed a hand because a few things to carry and put in the basket. Q. You get to the shed, you get off the quad bike, did your Uncle [KMP] say anything to you at that point before you went into the shed. -- 89 of 114 -- [2024] SADC 100 88 A. No, he just went into the shed, I started looking around, I tend to wander and do my own thing, yeah, that's what - then like I started wandering around and I found him and, yeah. Q. At what point was your attention drawn to your uncle, what caused you to look at your uncle. A. Well, I kind of was like wandering around and I wandered over and he was there. Q. And what was he doing at that time. A. He said - well, he wasn't doing anything, he was just kind of standing there. He said he was going to show me something I hadn't seen before, he hadn't showed me before. Q. So at that point when you've been wandering around the shed and you've seen your uncle, he said something to you. A. Yeah. Q. What words did he use, what words did he say to you. A. He said he was going to show me something he hadn't shown me before, I hadn't seen before. Q. Putting that in the first person, what did he say to you directly. A. 'I'm going to show you something you haven't seen before, I haven't shown you this before'. Q. Then what did he do. A. He started rubbing his penis with his hand and continuing to do that until he ejaculated. Q. Where did he ejaculate. A. Onto the ground next - like in front of him, next to him. I don't recall if it was next to him or in front of him, but it was just on the ground. Q. And what was the ground of the old shed at that time. A. Dirt. Q. It was a dirt ground. A. Dirt ground. Q. Was that a commonly used part of the farm, did people go down there very often. A. Not really. Q. Going back to that incident, what did your uncle do at that point, the point that he ejaculated onto the dirt on the ground. A. He put his penis back into his pants, zipped them up and walked out of the shed. -- 90 of 114 -- [2024] SADC 100 89 Q. And is it then that you heard the quad bike take off. A. After a couple of minutes, yeah. Q. At the time that your Uncle [KMP] was masturbating, how far was he from you. A. Five, six feet. Q. Five or six feet, was that your answer. And where was he looking. A. Directly at me. Q. Did he say anything to you. A. No, but I remember him moaning. Q. And is it your evidence that you then made your own way back to the house. A. Yes. Q. What did you do when you got back to the house. A. I think I either went to the swing or just did my own thing for the rest of the day. After these things, after stuff like this, it just - I don't remember much, my head gets lost when stuff like that happened. Q. Did you discuss that incident with your Uncle [KMP] at the time. A. No. Q. Did you discuss it with anybody else. A. No. Q. And why not. A. I was scared. Q. How did that incident impact on your relationship with your Uncle [KMP], if it did. A. I didn't trust him that much, didn't go with him that much, withdrew, withdrew a lot. Q. Is it the case you didn't spend much time with your Uncle [KMP] from that point onwards. A. Yes, I tried to stay around Mum and Nana and I just didn't want to be alone with anyone. 396 In cross examination, AP was asked whether the change in her evidence concerning her age at the time of the third incident was the product of having spoken to someone overnight before resuming her evidence. AP responded: A. No. I was shown the photos yesterday and I haven't seen them and I got really overwhelmed and I was really thrown and just put my head in a really weird spot, really threw, threw, threw, threw me. -- 91 of 114 -- [2024] SADC 100 90 Q. When you say 'the photos', the ones that we were just going through earlier, those four photos of - A. Yeah. Q. Is that what you're talking about. A. Yeah. Q. So you hadn't seen them before. A. No. Q. And seeing of them you said threw you. A. Yeah, made me quite upset. Q. And so that made your memories a little bit confused. A. It just threw my brain. Like I just - the flashbacks. Flashbacks don't come in chronological order. Q. So after thinking about it overnight, you're sure now that you were seven. A. Yes. 397 In cross examination, AP agreed that in a statement she signed in September 2019, she said the following: Q. 'I followed him out and I saw him get on the four-wheeler. I didn't want to go with him, but I thought mum and dad would question me as to why I walked back. I don't know how far the shed was from the house. Back then, there were heaps of trees, the block was covered in fruit trees and you couldn't see the house from the shed. Looking at Google Maps now, you don't see any of the trees as the block has been cleared. I hopped on the back of the four-wheeler behind Uncle [KMP] and he drove back to the house'. 398 AP said, however, that the version of events she gave in her evidence in chief that she in fact was left to walk back to the homestead was correct. Her explanation for the inconsistency was: A. The one I said yesterday, because for a long time I didn't realise I had been abused because I pushed it all away, I pushed it out of my mind, and it was only when I got away from it that I realised it had happened to me, and then, when I first told the police, things were coming fresh back to me and it was all like a flood, a flood of everything. 399 AP said she was unsure whether a key was required to access the shed, but she had been in the shed both before and after the third incident. -- 92 of 114 -- [2024] SADC 100 91 Particular (d) – fourth incident 400 The fourth incident about which AP gave evidence was said to have occurred when she was nine or 10 years old (placing it somewhere around 2005 / 2006) and a number of years after the earlier incidents to which I have referred. 401 AP said she had been sleeping in the spare bedroom (as marked on P8) with her brother during this particular stay at Moorook. The incident occurred one night when AP got out of bed to go to the toilet which was accessed via the laundry door opposite to the accused’s bedroom. 402 When AP came out of the toilet, the accused was standing in the doorway to his bedroom. The accused told AP sternly, but quietly, to ‘like suck his dick’. AP thought that the accused was wearing pyjama pants at the time but she did not remember a shirt. His penis was exposed. All of the lights in the house were off. AP said she was scared and did not want to get hurt so she got down onto the floor, grabbed the accused’s legs and put his penis in her mouth whilst they were both positioned in the doorway to the accused’s bedroom. The accused was on the bedroom side of the doorway and AP on the laundry side of the doorway. The accused was moaning and ‘grabbed’ AP, albeit she could not say in what manner or where. 403 AP was unable to say whether the accused’s penis was erect when she put it in her mouth or how long she performed fellatio. She said however that she thought the accused ejaculated as she ran to the toilet and vomited multiple times, before returning to bed. 404 There was no discussion between the accused and AP about this incident nor did AP make a complaint. 405 In cross examination, AP said she assumed that everyone else in the house was asleep at the time of the fourth incident. The lights were off save that she could see light coming from underneath the accused’s bedroom door when she went to the toilet. 406 AP repeated that the accused was wearing pyjama pants but she could not remember if he was wearing a top. The accused had his pants down such that his thighs were exposed. 407 It was put to AP that she had said in an earlier statement that the accused was fully naked during this incident. AP said she could not remember telling the police the accused was fully naked and added ‘it’s not clear to me whether he was fully naked or not when the act happened. I remember his pyjama pants being above his knee, they might have been like, light in [colour], light in fabric so when I was standing there it may have been that they were there because it was very dark.’ Upon her statement being produced, AP agreed she had told police the accused was ‘fully naked’ and said she was not now entirely sure whether he was or was not. -- 93 of 114 -- [2024] SADC 100 92 408 AP rejected the proposition that the fourth incident never happened. She also rejected the proposition more generally that she may have been confused about what happened to her throughout the period of the charged acts and that her uncle was not responsible for any of the sexual abuse of her. AP maintained that the accused sexually abused her. Discussions with KH, NV and others 409 Returning to her evidence in chief, AP said that in late 2018 or 2019, she spoke with KH and another cousin, TLP, after they had returned from a funeral. The conversation took place in a car outside of the house of a friend of AP. This would seem to be reference to the Camden Park conversation about which KH gave evidence. 410 AP said ‘that’s when I found out that they were also – that it had also happened to them, but we didn’t disclose what specifically had happened’. AP recounted the conversation she had with KH in the car, in the presence of TLP: Q. I want to limit this to what both yourself and [KH] said. What, if anything, did you tell [KH] about or what, if anything, did you discuss with [KH] about what had taken place between yourself and your Uncle [KMP]. A. That he had done something to me. Q. Did you go into any detail about - A. No. Q. I just need to finish the question. A. Sorry. Q. Did you go into any detail about what your Uncle [KMP] had done to you. A. No. Q. Did you say anything else about the nature of what your Uncle [KMP] had done to you. A. That it was sexual, but not any detail. … Q. You tell us about the conversation that you had with your cousins in the car, and [TLP] is your cousin as well. A. Yeah. Q. The conversation that you had with your cousins in the car outside of your friend's house as it related to what was said about Uncle [KMP]. A. They both said that they went up to the funeral and they spoke to some of the other cousins and some words got around, I don't know what because I didn't ask about it, -- 94 of 114 -- [2024] SADC 100 93 I said that was none of my business, and they asked if anything had happened to me, and I broke down, I just started crying. Q. Was it at that point that you said that your Uncle [KMP] had done sexual things to you. A. At that point I was crying and I said yes, something had happened to me, and [KH] said 'Who was it?' and I said 'I can't say, I can't say' and she said 'Was it [KMP]?' and I kind of froze. Q. Did you answer that question from your cousin [KH]. A. I froze and she looked at me and she, like, probed me a bit, she said 'Was it? Was it?' and I broke down crying again and I started nodding. Q. Did your cousin [KH] say anything to you about what Uncle [KMP] had done to her. A. No. She has tried to, but I've just been like 'I do not want to hear it, can you please stop?'. Q. But just in terms of that conversation in the car - A. No, not in the car. Q. Outside of your friend's house, was there any reference from your cousin [KH] to incidents of a sexual nature between herself and Uncle [KMP]. A. She said that stuff has happened to her too, but she has not disclosed - she said sexual stuff has happened but she has not told me what specifically. Q. Just limiting it to the conversation in the car outside of your friend's house. A. Yes, she did not tell me what specifically, she said sexual stuff, but not what specifically. Q. Did she say who the sexual stuff related to. A. Herself and Uncle [KMP]. Q. Beyond that, did she provide any further detail. A. No. Q. Leaving that conversation in the car between yourself and [KH] and [TLP], were there any other conversations that you had with [KH] about incidents with your Uncle [KMP]. A. [KH] has tried to probe me a lot about what [KMP] has done to me, she has tried to bribe me a lot about what he's done to me; 'If I tell you this, will you tell me what he's done?'. I have said 'No, I'm not going to disclose that, it's not something I can talk about, it's very, very, very hard for me'. 411 AP also gave evidence about a conversation with NV at Moana beach: Q. Can I move to [NV]. -- 95 of 114 -- [2024] SADC 100 94 A. Yes. Q. Have you ever had a conversation with your cousin [NV] about what your Uncle [KMP] did to you. A. There was a time when [NV] came to Adelaide and we went out to Moana Beach and [NV] told me that she had been abused by [KMP]. I, at that point, couldn't say or do anything. I was just - I don't even - don't even know how I responded, I just didn't do anything at that point, I was so in shock. Sorry. So in shock. Q. During that conversation at Moana Beach, what did your cousin [NV] say to you about Uncle [KMP], using as best you can the words that she used. A. That he had abused her. Q. Did she provide any further detail beyond that. A. No. Q. Did you ask her for any further detail beyond that. A. No. Q. Did you say anything to your cousin [NV] during that conversation about what had happened between yourself and your Uncle [KMP]. A. No. Q. Do you recall when that conversation at Moana Beach was. A. No. Q. Looking at MFI P7, do you recognise the two people shown in that photograph. A. Yeah. That's me and [NV]. Q. Do you recall that photo being taken. A. Yeah. That's at Moana. Q. Is that the occasion that you had this conversation with your cousin [NV]. A. Yeah. Q. Leaving that conversation at Moana now, have there been any other occasions where you've discussed with your cousin [NV] sexual incidents between yourself and Uncle [KMP]. That's a 'No'. A. No. Sorry, I forgot about that. Q. Conversely, had there been any further conversations where [NV] has disclosed information regarding sexual incidents with Uncle [KMP]. A. No, no, no. We don't discuss that. -- 96 of 114 -- [2024] SADC 100 95 412 It will be remembered that whilst NV adverted to going to a beach with AP on 27 January 2018 she did not suggest she made a disclosure to AP on that occasion. Rather, NV’s evidence was that she had made a disclosure to AP when visiting her at the Royal Adelaide Hospital in 2017. 413 In cross examination, AP said that the first time she had spoken to NV about any type of sexual abuse was at the beach. 414 AP was asked whether she was in the Royal Adelaide Hospital in mid-2017. AP said she thought so but ‘a lot of my stays in hospital are very blurry because of the reasons why I’ve been in hospital. I’ve been in hospital a lot since 2015’. 415 AP said she recalled one occasion when NV visited her in hospital. The visit was prior to the ‘beach trip’. AP said that she did not think they discussed any of the allegations against the accused during the hospital visit. NV did not tell AP that she had been the victim of any kind of sexual abuse. 416 The cross examination continued: Q. I want to ask you though about a conversation you had at the Royal Adelaide Hospital. A. As I said when I'm in hospital I'm on a lot of medication and painkillers because - so I can't really recall hospital conversations because of the medication I'm on and that I don't really think that's fair to try and recall the hospital conversation when I'm on medication and stuff and not in the right headspace. Q. If you can't recall it's okay to say you can't recall but I still need to ask some questions. A. Yeah, but I'm just. Q. I want to talk to you about those two conversations, whatever you spoke at the hospital and the beach but we'll do them separately. A. Yep. Q. Try and keep them separate. Firstly, when you were at the hospital did you tell your cousin [NV] that you had been sexually abused in any way. A. I don't recall any conversations at the hospital. I recall her coming there but I don't recall any conversations because of the medications I was on, like I get fully sedated at hospital because of the trauma and I like, I don't like to be at hospital, I run away. Q. So there was no discussion, nothing from you said to [NV]. A. I don't recall. 417 With respect to the beach trip, AP gave the following evidence: Q. We will move to the conversation at the beach. You have a better memory of that conversation. -- 97 of 114 -- [2024] SADC 100 96 A. Not as such as I was still in and out of hospital at this time. Q. Did you tell [NV] in that conversation that you had been abused in any way. A. No, [NV] disclosed to me that she had been abused but I did not disclose anything to her. Q. There was no disclosure at all. A. Not from my part but from her part, yes. Q. Have you had a conversation with [NV] after that conversation at the beach. A. No. Q. So you've - so you don't recall ever telling [NV] how old you were when you were abused. A. No. 418 Turning to conversations with KH and TLP, AP said that the discussion in the car occurred after her beach trip with NV in January 2018. She reiterated that she was unsure whether it took place in late 2018 or early 2019. AP said the contact was initiated by a message she received on Facebook Messenger from KH in response to which AP made telephone contact with KH. 419 The cross examination as to discussions between KH and AP continued: Q. You've described earlier that [KH] had asked a number of times for details. A. Yes. Q. And things like that, was that in that conversation in the car or has that been ongoing since then. A. That's been ongoing. Q. She's been, you say - was she pushing you for both details or to disclose who the abuse was from. A. Details. Q. You said earlier that she was the one asking 'Was it [KMP], was it [KMP]. A. Yeah, she just, she pushes for a lot. She pushes for details and about everything. Q. And so it was after she pushed you 'Was it [KMP], was it [KMP] you agreed it was [KMP]. A. No. Q. You said earlier that she was the one that asked 'Was it [KMP]. A. She said, she was pushing but she was saying - it wasn't her - she wasn't pushing 'It was [KMP], it was [KMP]’, the conversation was going, [KH] and [TLP] were -- 98 of 114 -- [2024] SADC 100 97 saying like that the cousins met up in Darwin and there was talk that stuff had happened to them and then [KH] was like 'Did something happen to you, did something happen to you' and I was sitting there. I was trying to just kind of hold it in and she was like 'It's okay, like it's fine, like, you like you don't, you don't need to hold it in'. She actually said once everyone, everyone in Darwin when they were starting to talk about it, once they all started to talk about it and they figured it out she was like maybe - she said to me she's like, she said she thought maybe this is why [AP’s] been in hospital so much. She said this to me and she thought of me and she said maybe this is why she's constantly trying to hurt herself and that's when I kind of started to breakdown and I told her 'Yes, yes, this is why'. 420 AP stayed at KH’s house the following night. AP thought TLP was present ‘for a bit but not long…she didn’t stay’. 421 Following the overnight stay, AP continued to have contact with KH but added ‘I don’t talk about this stuff’. A little later, when the topic was revisited, AP clarified that KH ‘tries’ to talk about the allegations but AP would deflect the conversation because ‘I’ve been told we’re not allowed to and I really don’t want to…it brings up horrible things for me. I don’t want to. We’re not allowed to, I don’t want to, I don’t want to’. 422 With respect to NV, AP said ‘we don’t speak as much. We send Snapchats and stuff sometimes, but it’s pretty much the same as [KH]. [KH] tries to be in contact more, I think, she wants to have like a close relationship, but I personally – I think I’m not good at being close to people…’. Other sexual abuse 423 The prosecution sought permission pursuant to s 34L(2)(a) of the Evidence Act to ask AP whether she had been sexually abused by anyone other than the accused and, if so, at what age. The application for permission arose out of the evidence given by NV about her conversation with AP at the Royal Adelaide Hospital in 2017, during which NV was told by AP that she had been sexually abused between the ages of six and 15. On the prosecution case, that disclosure in fact related to abuse perpetrated by someone other than the accused and it was important to clarify as much, otherwise the conversation recounted by NV would suggest AP had been inconsistent as to when the accused allegedly abused her. 424 Counsel for the accused did not oppose a grant of permission. 425 Having considered the terms of s 34L and the legislative policy that sits behind the injunction against asking questions concerning an alleged victim’s sexual activities other than with an accused, I determined that the evidence it was anticipated would be led on this topic would be of substantial probative value and that it was in the interests of justice to allow the prosecution to pursue clarification of these matters so that the evidence of AP was not wrongly tainted by an inconsistent statement that did not in fact relate to her allegations against the accused. As will become apparent however, AP’s evidence about the timing of -- 99 of 114 -- [2024] SADC 100 98 abuse by another person was inconsistent with what NV said AP had told her of the timing of the abuse during the hospital visit. 426 The evidence elicited in chief through AP on this topic was as follows: Q. One final topic and just two questions. Have you been sexually abused by somebody other than your Uncle [KMP] during your childhood. A. Yes. Q. Over what age did you experience that sexual abuse. A. Probably from about eight and nine until my second and third year at boarding school. 427 Thereafter, and prior to commencing cross examination, counsel for the accused made a further application under s 34L of the Evidence Act to explore AP’s evidence that she had been sexually abused by someone other than the accused because of the overlap in the chronology of that abuse and the abuse AP claimed to have been subjected to by the accused. The defence submitted that the concurrency of allegations of sexual abuse gave rise to the possibility that AP had conflated the identity of her alleged abuser when giving evidence about the four incidents which I have earlier summarised. 428 Again, having considered the criteria prescribed by s 34L of the Evidence Act, I concluded that the proposed cross examination was of substantial probative value and that it was in the interests of justice to grant permission. 429 When these matters were pursued in cross examination, AP was asked whether, before her conversation with KH in the car, she had previously told KH she was abused by ‘someone else’. AP responded ‘no’. She was then asked whether she had told NV that she had been abused by ‘someone else’ and again AP responded ‘no’. 430 Counsel returned to this topic later in cross examination in the context of the inconsistency concerning the third incident I have referred to earlier and AP’s evidence that memories flooded back to her and the following exchange took place: Q. I don't want to be insensitive, but when you say it was a flood of everything, you have told us about someone else that's abused you. A. Yes. Q. So am I to assume that it was the abuse from both people that came flooding back because you'd been suppressing the memories of all of the abuse. A. Yes, but the other abuse didn't happen in the Riverland, it was by a completely different person, the other person is much taller, the other person has a completely different build, it happened in completely, like, different situations, they did -- 100 of 114 -- [2024] SADC 100 99 completely different things and it didn't happen in like - this was on like a farming property, the other one was in a completely different situation. Q. Are you sure you're not just confusing what has occurred in your mind. A. No, definitely not. Q. After having suppressed it for so long. A. No. 431 As I have said, AP rejected the suggestion that she was confused about the accused being responsible for any of the sexual abuse she had suffered. RP 432 RP, the father of AP, gave evidence that the family would visit Moorook around twice a year when AP and her brother were children. They would stay for about two weeks until such time as AP commenced as a boarder at an Adelaide school. The visits took place during school holidays. 433 RP was taken to the photographs P9 and said that AP appeared to be between four to five years old in the first three photographs and around nine years old in the fourth photograph. With respect to the quad bike photograph, RP said the accused would take the children for rides on the quad bike during their stays at Moorook. Submissions of the parties 434 Mr Mulvihill invited me to accept AP’s evidence as a credible and reliable account, which he submitted was not substantially undermined during cross examination. 435 Dealing with the inconsistent statements established during cross examination of AP, Mr Mulvihill submitted that they were of no real significance. He argued that an inconsistency about how AP got back to the main homestead after the alleged offending in the horse stable (particular (c)); or whether the accused was entirely naked or only naked from the waist down during the incident involving fellatio (particular (d)), did not detract from the veracity of AP’s evidence. Mr Mulvihill characterised the inconsistencies as a natural by-product of the fallibility of human memory on peripheral details over time. 436 Mr Mulvihill emphasised aspects of AP’s evidence that tended to suggest brazen and risky offending such as the accused’s bedroom door being open during the incident the subject of particular (a) and the shed door being open during the incident the subject of particular (b). Mr Mulvihill submitted that these details were unlikely to be imagined or fabricated because they might create an impression of implausibility owing to the prospect of detection if the abuse occurred in such easily uncovered circumstances. -- 101 of 114 -- [2024] SADC 100 100 437 Mr Mulvihill argued that there was no possibility that AP had wrongly attributed her uncle with abuse perpetrated by someone else, pointing out AP’s ability to differentiate characteristics of the ‘other’ abuse she suffered and those of her abuser, with the abuse she alleged was committed by her uncle. 438 Ms Demertzis submitted that the starting point for considering AP’s evidence was that she claimed to have been sexually abused by someone other than the accused. It was said that this gave rise to the possibility that AP had ‘transposed’ the identity of her abuser, such that she may now be, wrongly, of the genuinely held view that the accused was responsible for sexually abusing her in the manner she alleged. 439 Ms Demertzis also emphasised the nature of the abuse alleged by AP. She submitted that, in the context of an otherwise close and friendly relationship between AP and the accused, it was improbable that, without any grooming of or attempt to normalise sexual behaviour with AP, the accused would take the brazen step of digitally penetrating her in his bedroom (particular (a)) when her parents, brother and grandparents were all in the house. 440 Ms Demertzis then addressed what she contended were particular deficiencies in relation to AP’s evidence concerning particulars (b), (c) and (d). As to the particular (b) incident, which was alleged to have occurred in the long rectangular shed depicted on P3, Ms Demertzis drew attention to the fact that AP had described on P11 where she and the accused were ‘talking’ which, it was said, was illogical given that AP’s account of particular (b) did not suggest there was any substantive conversation between her and the accused. To this may be added that, on AP’s evidence, the large sliding / roller doors to the shed were apparently open when this incident occurred, which gave rise to a real possibility of detection. 441 Moving to particular (c), Ms Demertzis relied upon the inconsistency between AP’s evidence that, after the accused had masturbated to ejaculation, he left the horse stable on the quad bike, leaving AP to make her own way back to the house and her affidavit of September 2019, in which she said that she in fact got on the back of the quad bike and returned to the homestead with the accused so that her parents did not question why she had walked back. Counsel argued that the significance of this inconsistency had to be evaluated acknowledging that in her September 2019 affidavit, AP had rationalised why she had to get on the back of the quad bike with the accused which, in her evidence in chief, she said in fact never occurred. 442 Ms Demertzis submitted further that this kind of inconsistency took on greater significance in light of the risk of conflation in AP’s memories given she was exposed to sexual abuse by someone else and otherwise demonstrated her memory to be unreliable. 443 I note further that in her evidence in chief, AP initially said that the particular (c) incident took place three to four years after the incidents the subject of -- 102 of 114 -- [2024] SADC 100 101 particulars (a) and (b). However, upon returning to court to continue her evidence after an overnight break, AP said that the particular (c) incident in fact took place when she was seven, and occurred a year after the first two incidents. She rejected the suggestion that she changed her evidence having spoken to someone during the overnight break. 444 As to the particular (d) incident during which AP claimed that the accused made her perform fellatio on him, Ms Demertzis again relied on the inconsistency between AP’s evidence (during which she said the accused had his pyjama pants lowered) and a statement she made to the police in which she said the accused was ‘fully naked’ during this incident. Upon being shown her witness statement, AP accepted that she had previously said that the accused was fully naked during this incident, but added that she could not now remember whether he was or was not. Again, it was said by counsel for the accused that in the particular circumstances, the variations in AP’s account could not be dismissed as inconsequential. 445 Ms Demertzis said that all of these asserted shortcomings in AP’s evidence needed to be examined in the context of her evidence about her memories of abuse coming ‘flooding back’, having repressed them for so long. Assessment of AP 446 In accordance with my earlier conclusion as to the absence of cross admissibility, I have not used the evidence of CS, KH or NV when considering AP’s evidence and whether count 3 has been proved; nor do I have any regard to my conclusions in relation to counts 1 and 2 when considering whether the prosecution has proved count 3 beyond reasonable doubt. 447 AP gave frank and straightforward evidence. She was forthright in acknowledging inconsistencies and other limitations with her memory. She was visibly distressed from time to time during the course of her evidence but she answered questions directly and I did not detect any element of evasiveness or protectiveness whilst she was in the witness box. Her distress appeared to me to be genuine and not in any way feigned. 448 There was nothing about AP’s presentation as a witness or her demeanour during the course of her evidence that caused me any disquiet. I acknowledge of course that demeanour can sometimes be a poor guide to the credibility and reliability of evidence and I have carefully examined the substance of AP’s account. Analysis of count 3 449 I deal first with the issues of collusion and contamination with respect to AP’s evidence. I will then address the defence contention that it is a reasonable possibility that AP has ‘conflated’ her memories of sexual abuse by someone else with sexual abuse by the accused. I address these issues first because, plainly -- 103 of 114 -- [2024] SADC 100 102 enough, if collusion, contamination or conflation are reasonable possibilities, the accused must be acquitted. Collusion and contamination 450 AP’s evidence was that she spoke with KH and TLP after they had returned from a funeral. The conversation occurred in late 2018 or 2019 outside AP’s friend’s house. KH and TLP asked AP if anything had happened to her, which caused AP to break down and start crying. It will be recalled that KH asked AP if it ‘was [KMP]’, which AP appears to have confirmed by nodding. AP said that thereafter, KH was persistent in seeking detail from AP and in offering, in exchange, to provide detail to AP about abuse she experienced, but AP resisted. 451 I accept AP’s evidence that she and KH informed each other that they both alleged abuse by the accused. I accept AP’s evidence – which is consistent with KH’s evidence – that neither disclosed details of any substance about the nature of the abuse allegedly suffered. However, I accept that KH conveyed to AP that there was – as I have termed it earlier – a ‘swell’ of information and allegations seemingly relating to the accused arising out of various members of the family coming together for LSP’s funeral which was conveyed to AP, and this is highly material to the possibilities of collusion and contamination. 452 I further accept AP’s evidence that KH persistently sought details from or pressed to give details to AP about the alleged abuse and that AP resisted. AP’s evidence about not wanting to discuss what she clearly found to be traumatic allegations was logical and appeared genuine. I have earlier indicated that I did not consider KH’s inquisitiveness and preparedness to offer an exchange of details with AP to undermine my assessment of her credibility or reliability. 453 As I intimated when examining these issues in the context of count 2, I found AP’s evidence about conversations with NV to be unreliable however I note that NV did not suggest that AP specifically disclosed alleged abuse by the accused. Rather, NV’s evidence was that during her visit to the Royal Adelaide Hospital, AP disclosed having been abused by someone ‘close to the family’ between the ages of six and 15. 454 AP could not remember having a conversation about abuse with NV in the Royal Adelaide Hospital and maintained that it was only NV that disclosed alleged abuse to her during the trip to Moana Beach. Having regard to the circumstances prevailing upon AP at and around the time of the conversations about which NV gave evidence, I prefer the evidence of NV. Accordingly, I find that AP did make a disclosure to NV at the Royal Adelaide Hospital to the effect that AP had been abused by someone ‘close to the family’ between the ages of six and 15 and that NV had told AP that she had been abused by the accused. In particular, I find that NV told AP that the accused had ‘touched her’ and I have previously dealt with the suggested impact of this misdescription by NV when dealing with count 2. As I adverted to in the context of discussing the s 34L applications, the disclosure to NV (as detailed by NV) was in fact inconsistent with AP’s evidence that the -- 104 of 114 -- [2024] SADC 100 103 alleged abuse by the ‘other’ person commenced when AP was aged eight or nine (and not six as she said to NV). This is an inconsistency I must have regard to when considering AP’s credibility and reliability. 455 As I mentioned at the outset of my reasons, evidence of disclosures made by the complainants (and reference to allegations by or discussions with other members of the complainants’ families) has no permissible use in supporting or buttressing their credibility or reliability whether as complaint evidence or otherwise; nor does the evidence of any disclosures prove the truth of any fact asserted. 456 My findings about these conversations between KH, NV and AP are important to the question of collusion and to my assessment of the possibility that AP’s memory of events has been ‘contaminated’ or influenced by information imparted by her cousins which, it is submitted by the defence, takes on particular significance in this case owing to AP alleging that she was also abused by someone other than the accused, so as to give rise to a risk of conflation. The evidence of these conversations is also important to my assessment of the accuracy of AP’s evidence more generally to the extent there are variations between her account of the discussions and that provided by KH and / or NV. 457 When considering the issues of collusion and contamination, I have taken into account the other problems or shortcomings in AP’s evidence upon which the defence rely or which I have otherwise identified, as well as the accused’s denials. 458 Having done so, I reject the possibility that AP, KH and NV have colluded with each other and / or anyone else to make false allegations against the accused. Again, I consider the candour with which AP gave evidence about conversations (to the extent she could remember them) with KH and NV to be fundamentally inconsistent with the possibility that any of them (and perhaps others) conceived of a plan to falsify allegations against the accused. 459 Equally, I dismiss the possibility that AP’s allegations are the product of a memory contaminated or influenced by information she has received from KH or NV or anyone else for that matter. In this respect, I do not overlook what I earlier described as an apparent ‘swell’ of information implicating the accused in abuse of ‘the cousins’ generally at around the time of AP’s disclosure to KH and the inconsistencies in AP’s evidence that counsel suggested were symptomatic of a non-genuine recollection, as well as AP’s evidence about memories ‘flooding back’ to her. I am satisfied that it is not reasonably possible that the limited information AP received from NV and KH in particular about the abuse they say they experienced, coloured or contaminated AP’s memories of her interactions with her uncle. I consider the substance of AP’s evidence, and the richness of detail that accompanied her account of the alleged abuse, to be fundamentally incompatible with the possibility of conscious or sub-conscious contamination. -- 105 of 114 -- [2024] SADC 100 104 Conflation 460 I turn then to the defence hypothesis that AP may have inadvertently conflated memories of abuse suffered at the hands of someone else with abuse suffered at the hands of the accused. 461 It will be remembered that AP also gave evidence that she had pushed the abuse she claims to have suffered – both by the accused and another person – out of her mind until, when speaking with the police, ‘a flood of everything’ came back to her. 462 The nature of the sexual abuse AP suffered at the hands of another person, and the circumstances in which that abuse occurred, was not the subject of detailed evidence at trial. Whilst I accept that the mere fact that AP has experienced abuse by someone else gives rise to a theoretical risk of confusion or conflation with the allegations advanced against the accused, the degree of risk might be thought to be amplified in the event that there was some similarity or cross-over between the nature of the abuse allegedly committed by the accused and the abuse perpetrated by someone else. AP’s evidence was that the ‘other person’ did ‘completely different’ things to her. 463 However, the evidence does suggest that the periods of alleged abuse coincided with or overlapped each other such that it is necessary to carefully consider whether AP’s memory that the accused abused her might possibly be a false memory shaped by experiences had at the hands of another. 464 AP gave evidence that the ‘other’ abuse she suffered occurred when she was between eight and nine and her second or third year at boarding school; and her evidence was that the accused abused her between the ages of six and nine / ten. As I have said, AP’s evidence that the ‘other’ abuse occurred from the age of eight or nine was inconsistent with her comment to NV in the Royal Adelaide Hospital that she was abused between the ages of six and 15. 465 When considering the argument concerning conflation and confusion and, for that matter, AP’s credibility and reliability more generally, it is necessary to scrutinise the evidence of AP with great care in light of these matters and her evidence about memories ‘flooding back’. These features of AP’s account must be examined together with all other matters said to bear adversely on her credibility and reliability and to which I have, and will refer, including the accused’s denials. I have done so. 466 I have carefully examined the inconsistencies in AP’s narrative which are said to go the possibility of conflation, principally, that: 467 As to particular (b), she depicted on exhibit P11 where she and the accused were ‘talking’ which was inapposite given her description of the incident and which might tend to suggest that AP’s memory of the event is in fact confused. -- 106 of 114 -- [2024] SADC 100 105 468 As to particular (c), AP gave evidence that she had to walk back to the homestead after the horse stable incident whereas she had said in an affidavit that she in fact returned on the quad bike with the accused because she did not want her parents to question why she had walked back. There was, in addition, AP’s initial suggestion that the particular (c) incident occurred three to four years after the events the subject of particulars (a) and (b), which she later revised after a break in her evidence, suggesting the horse stable incident occurred only a year after particulars (a) and (b). 469 As to particular (d), AP was inconsistent in her account as to whether the accused was fully naked or was wearing lowered pyjama pants when he forced her to perform fellatio on him. 470 I also bear in mind AP’s evidence about her frequent hospitalisations and the effects of medication upon her, which is relevant generally to my assessment of AP’s reliability and the possibility of conflation or confusion, together with my finding concerning the unreliability of her memory about her conversations with NV. 471 In considering the hypotheses of conflation or confusion, I have had regard to the inconsistencies and all of the criticisms of AP’s evidence advanced by Ms Demertzis, as well as others which I have referred to during these reasons. I acknowledge the inconsistent statements AP has made; what I find to be her unreliable evidence about conversations with NV and the conversations AP has had with KH and NV about their allegations; the age of the allegations; the fact that AP was a child during the alleged abuse; and the significant forensic disadvantage to the accused in defending these allegations, which may well have further hindered his ability to marshal material capable of shedding further light on the possibility of conflation or confusion (reiterating of course that the accused carries no burden in this trial), amongst other things. 472 To my mind, the possibility of ‘conflation’ or ‘confusion’ about the identity of the person responsible for the abuse alleged by AP at Moorook and the nature of the acts she claims she was subjected to there, is comprehensively answered by AP’s evidence, which I have set out earlier, but repeat for convenience: Q. So am I to assume that it was the abuse from both people that came flooding back because you'd been suppressing the memories of all of the abuse. A. Yes, but the other abuse didn't happen in the Riverland, it was by a completely different person, the other person is much taller, the other person has a completely different build, it happened in completely, like, different situations, they did completely different things and it didn't happen in like - this was on like a farming property, the other one was in a completely different situation. Q. Are you sure you're not just confusing what has occurred in your mind. A. No, definitely not. -- 107 of 114 -- [2024] SADC 100 106 Q. After having suppressed it for so long. A. No. 473 I find that the detail of AP’s evidence about alleged offending by the accused and the manner in which she explained their relationship as facilitating or presenting opportunities for the alleged abuse to occur, belies the possibilities of confusion or conflation as accounting for her allegations. I accept as truthful and reliable AP’s evidence that she can distinguish between the abuse she alleges was carried out by another person from the alleged abuse she attributes to her uncle. I do not consider that the inconsistencies in AP’s account are in any way symptomatic of conflation or confusion. I accept that the inconsistencies relate to important details of AP’s narrative of the alleged offending, but they do not suggest any uncertainty about the nature of the acts of alleged abuse or the identity of the perpetrator or the location of the alleged abuse. Forensic disadvantage 474 As I have done throughout my analysis of the prosecution evidence, I have placed substantial weight on the forensic disadvantage to the accused in challenging allegations relating to events said to have occurred such a long time ago. This significant disadvantage has, I accept, impaired the accused’s ability to challenge and test the prosecution case and to marshal evidence in his defence. It has also impacted, in a way disadvantageous to the accused, on the memories of the prosecution witnesses and resulted in the unavailability of a number of potentially important witnesses. 475 I have kept the significant forensic disadvantage the accused confronts at the forefront of my mind when evaluating whether the prosecution has discharged its burden. Conclusions on AP’s evidence 476 I have collectively examined the matters pertaining to AP’s evidence when assessing her credibility and reliability more generally. 477 Having undertaken that analysis, I am satisfied that AP’s evidence was credible and, for the main, reliable. As I have indicated, I accept AP is unreliable in relation to the detail of her conversations with NV and I accept that AP has been inconsistent in relation to various aspects of her account concerning the unlawful sexual acts. These are matters that I have anxiously considered when examining AP’s evidence. I have not looked at any asserted shortcoming in AP’s account in isolation. 478 The inconsistencies in AP’s account – whilst not unimportant – do not cause me to doubt her truthfulness and reliability in relation to the unlawful sexual acts she alleges. To the contrary, I found her evidence to be compelling and the inconsistencies to be understandable and, in the scheme of her evidence, of no material impact on her honesty and accuracy. -- 108 of 114 -- [2024] SADC 100 107 479 Whilst I accept that AP’s account of particular (b) did not suggest a substantive conversation with the accused in the lead up to or aftermath of the incident, she did describe a verbal interaction that consisted of the accused telling AP what he wanted her to do. Although the circumstances in which the annotation to the plan was made were not drawn out in the evidence in any detail, I acknowledge that the annotation is somewhat inapposite in light of AP’s evidence about what transpired and I acknowledge that AP was unable to explain why she wrote ‘us talking’ on the plan. Having reflected on this inconsistency in combination with other asserted inconsistencies and shortcomings in AP’s account, I do not accept that it lends support to the proposition that it is possible nothing other than talking occurred in the shed. 480 I have conducted the same global analysis with respect to the particular (c) inconsistencies (timing and walking back from the shed). I do not find AP’s ‘shift’ in her evidence as to the timing of particular (c) to be of any moment. Indeed, I found her explanation for revisiting the timeline to be sincere and understandable and her candour in acknowledging the initial error to be a positive reflection on her transparency. 481 The change in AP’s evidence about how she left the old shed following the particular (c) incident is, I accept, not insignificant. In her affidavit, AP explained the thought process by which she rationalised her decision to return to the homestead on the back of the quad bike with the accused following the alleged abuse, which is in stark contrast to her evidence before me that she was left to walk back. AP’s explanation for the inconsistency was that when she was speaking with the police, ‘things were coming fresh back to me and it was all like a flood, a flood of everything’. As I have said, this change in AP’s evidence is material and I have carefully considered it. I do not accept that the inconsistency (viewed collectively with other inconsistencies and asserted deficiencies in AP’s evidence) undermines the credibility or reliability of AP’s account of the alleged act of abuse itself. I acknowledge the inconsistency is closely related to the gravamen of the allegation and cannot be dismissed as peripheral; but it does not cause me to doubt the accuracy and integrity of AP’s evidence about the charged act itself. 482 The particular (d) inconsistency, which emerged as a result of AP’s evidence that she thought the accused was wearing pyjama pants at the time of the incident in contrast to her description in her affidavit of September 2019 of the accused being ‘fully naked’ is, likewise, not without significance. The inconsistency relates to an important feature of AP’s account of the charged act and again suggests some degree of uncertainty in her memory. Conversely, the inconsistency does not go to the nature of the alleged act of abuse itself. AP’s evidence that the accused made her perform fellatio on him is unmistakably clear and she was candid about any aspect of the charged act about which she was uncertain, such as whether the accused’s penis was erect when she put it in her mouth and for how long she performed fellatio. Moreover, when confronted with the inconsistency, AP frankly acknowledged that she was ‘unsure’ whether the accused was naked. AP’s -- 109 of 114 -- [2024] SADC 100 108 willingness to concede her uncertainty is, to my mind, further evidence of her candour. 483 Drawing these observations together, the inconsistencies are not such as to cause me to question the credibility and reliability of AP’s descriptions of the charged acts. 484 It is fair to say that the circumstances in which AP described the alleged abuse comprising particulars (a) and (d) occurring were attended by a substantial risk of detection. The abuse described by AP was brazen and risky and accompanied by an ever present chance that AP would complain to her parents, who were of course staying at Moorook with her at the time of the alleged offending. Moreover, there is no suggestion that the event the subject of particular (a) was preceded by any attempt by the accused to normalise sexual activity with AP or to ‘test the waters’ insofar as sexual matters were concerned, so as to gauge AP’s response and the likelihood of complaint on the one hand or compliance on the other. 485 Further, on AP’s account, the act of fellatio which the accused essentially compelled her to perform took place in the doorway to the accused’s bedroom which was in close proximity to the bedroom occupied by AP’s parents, the bedroom she shared with her brother and was just down a hallway from the accused’s parents’ bedroom. There was, on AP’s version, no real attempt by the accused to conceal the nature of the activity from any other occupant of the household who might have left their bedroom that night. Indeed, the evidence would tend to suggest that anyone else getting up to use the bathroom at the time would inevitably have discovered what the accused was doing. This incident also occurred somewhat ‘out of the blue’, some two or so years after the revised timetable AP gave for the occurrence of particular (c). 486 Similar observations could be made about AP’s evidence concerning particular (b). That incident took place during daytime in the open shed not far from the main residence and was also accompanied by a substantial risk of detection, although as AP pointed out, some farm equipment or machinery in the shed would have provided some obstruction to anyone looking into the shed and seeing what was occurring. 487 The defence argued that it was implausible that the accused would commit such brazen and serious acts of sexual abuse in such readily detectible circumstances. 488 There is some force in this contention but ultimately it may be said that what AP was describing were opportunistic acts of abuse in an environment with which the accused was intimately familiar. Although I have carefully reflected on these criticisms of AP’s account, I do not accept that her evidence was inherently implausible, improbable or illogical. Rather, I found AP’s evidence to be forthright, honest, persuasive, and in the main, accurate. -- 110 of 114 -- [2024] SADC 100 109 489 I consider AP was a compelling witness who provided a convincing account of alleged abuse by her uncle over a period of years. The asserted shortcomings in her evidence are not such as to cause me to doubt the truthfulness of her evidence, which I consider was also, generally, reliable (save where I have indicated otherwise). 490 I repeat, once more, that a finding that AP was a credible and generally reliable witness, is not dispositive of the accused’s guilt of count 3. I cannot return a verdict of guilty unless I can reject the accused’s denials in relation to count 3 as not reasonably possibly true and I am satisfied beyond reasonable doubt, based on AP’s evidence, of each and every element of count 3. The accused’s denials 491 The accused denied the allegations in relation to AP. He did so with apparent conviction. As I have previously acknowledged, an accused who denies historical allegations that cannot be identified any more precisely from a chronological perspective other than by reference to the age of the complainant or a year or years in which the event/s are alleged to have occurred, may not be usefully able to do much more than deny any wrong-doing. The passage of time and the imprecision of the allegations will often be a constructive impediment to proffering a more comprehensive or positive and alternative version of events. Of course, an accused has no obligation to say anything at all let alone offer an alternative version of events and carries no burden to prove his or her denials to any standard whatsoever. It remains at all times for the prosecution to disprove a denial as not reasonably possibly true. 492 As I have said, the accused was emphatic and consistent in his denials. However, the mere fact that the accused has uttered denials does not compel me to accept his denials as reasonably possibly true. In considering that issue, I have regard to all of the evidence that is relevant and admissible on count 3, including of course, the evidence which may be thought to support the denials (such as the evidence bearing upon the questions of collusion and contamination, and the shortcomings in AP’s evidence) and the evidence which tells against them. Equally, whilst mere acceptance of AP’s account as credible and reliable would in no way be determinative of whether the accused’s denials are reasonably possibly true, an intermediate conclusion that AP’s account was honest, accurate, powerful and persuasive, can provide a sufficient basis on which to conclude that the accused’s denials can be rejected as not reasonably possibly true. What is imperative when considering whether the accused’s denials are a reasonable possibility, is that all of the shortcomings in the prosecution case are taken into account. 493 Having undertaken that assessment, I reject the accused’s denials as not reasonably possibly true. I do so because I am satisfied of the credibility and reliability of what I considered to be a compelling and powerful account from AP. Notwithstanding the shortcomings in AP’s account that I have identified, her -- 111 of 114 -- [2024] SADC 100 110 evidence was persuasive and, in respect of her descriptions of the acts of abuse, clear, consistent and detailed. The qualities of AP’s account are such that I reject that the accused’s denials are reasonably possibly true. 494 In reaching this conclusion, I have not taken into account my rejection of the accused’s denials in respect of KH and NV nor my adverse findings in relation to his version of events concerning CS, consistently with my earlier conclusion that the evidence of those witnesses is not cross admissible in support of count 3. 495 This conclusion does not pre-ordain a finding that the prosecution has proved count 3 beyond reasonable doubt. It remains necessary for me to examine whether, in light of the evidence I accept as credible and reliable, the prosecution have proved the elements of the offence beyond reasonable doubt. Elements 1, 2 and 3 of count 3 496 As I remarked at the outset of my reasons, it was not in dispute that the accused was an adult at the time of the alleged incidents relating to count 3; that AP was a child under the age of 17 at the time of the alleged incidents; and that the accused knowingly maintained a relationship with AP throughout the period of the alleged incidents. 497 I am satisfied beyond reasonable doubt of the first three elements of the offence. 498 I move then to the findings I make as to each of the particulars. I indicate that all findings I have made below have been made beyond reasonable doubt. Findings – Particular (a) 499 I am satisfied beyond reasonable doubt that when AP was around six years of age, the accused inserted a finger into her vagina in the circumstances she described. The accused thereby committed the sexual offence of unlawful sexual intercourse with a person under 12 years old. Findings – Particular (b) 500 I am satisfied beyond reasonable doubt that around a week or so after the event comprising particular (a), when AP was about six years old, the accused sexually abused her in the long rectangular shed depicted on P3, by having her masturbate his penis. Consistently with her general curiosity and interest in the contents of the shed, I find that AP had gone into the rectangular shed after seeing her uncle putting something away. I find that the accused approached AP with his penis exposed and that he procured her to masturbate his penis with her hand by both his words and conduct. In this respect, I am satisfied that the accused asked AP to rub his penis and that he grabbed her hand and placed it on his penis, moving her hand so as to demonstrate what he wanted her to do. By grabbing AP’s hand, placing it on his penis and manipulating her hand to stroke his penis, the accused -- 112 of 114 -- [2024] SADC 100 111 assaulted AP in circumstances of indecency and thus committed the sexual offence of indecent assault. Findings – Particular (c) 501 I am satisfied beyond reasonable doubt that, a year or so after the events the subject of particulars (a) and (b), and when AP was around seven years of age, the accused masturbated himself to ejaculation in the presence of AP in the shed I have referred to as the ‘horse stable’. 502 I find that the accused had effectively created an opportunity to be alone with AP in the horse stable by inviting her to go with him to get something from the stable. I am satisfied beyond reasonable doubt that once they were at the horse stable, the accused told AP he was going to show her something she had not seen before and that he exposed his penis and masturbated himself to ejaculation in AP’s presence. The accused’s conduct in the presence of a person under 16 years of age constituted the sexual offence of committing an act of gross indecency. Plainly enough, an adult masturbating in the presence of a seven year old who was his biological niece is not just indecent but grossly indecent. Findings – Particular (d) 503 AP gave evidence that the fourth incident with the accused occurred when she was nine or 10 years old, placing it around 2005 / 2006. I am satisfied beyond reasonable doubt that the accused had AP perform an act of fellatio on him at the Moorook property, in the circumstances described by AP. I find that on the occasion of particular (d), AP, who was then sharing a bedroom with her brother during this particular stay, got out of bed one night to use the toilet which was essentially opposite the accused’s bedroom. The lights in the house were off and, I infer, the other occupants of the house were asleep, save that there was light emanating from under the accused’s bedroom door. After using the toilet, I find that AP came across the accused, who was then standing in the doorway to his bedroom. The accused told AP sternly, but quietly, to ‘suck his dick’. I find that AP then performed fellatio on the accused. The incident came to an end when AP ran to the toilet and vomited, before returning to bed. 504 By having AP perform fellatio upon him, the accused committed the sexual offence of unlawful sexual intercourse with a person under 12 years of age. 505 Accordingly, I find it proved beyond reasonable doubt that the accused committed at least two unlawful sexual acts against AP during the period that he knowingly maintained a relationship with her. AP was clearly a child at the time of the unlawful sexual acts and the accused was an adult. 506 I find the accused guilty of count 3. -- 113 of 114 -- [2024] SADC 100 112 Verdicts 507 For the reasons I have given, I find the accused guilty of counts 1, 2 and 3 on the Information dated 27 May 2022 (as amended). In light of my verdict as to count 3, it is not necessary for me to deliver verdicts in relation to counts 4, 5, 6 and 7 which were charged in the alternative to count 3. -- 114 of 114 --