[2024] SADC 107

Prosecution: R Counsel: MS L BOORD AND MR K KALALI - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: JLF Counsel: MR M MEAD - Solicitor: SHAW LEGAL & ADVISORY Hearing Date/s: 30/05/2024, 31/05/2024, 06/06/2024, 11/06/2024, 12/06/2024 File No/s: DCCRM-22-373 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 JLF Criminal Trial by Judge Alone [2024] SADC 107 Reasons for the Verdict of her Honour Judge Schammer 13 September 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES CRIMINAL LAW - EVIDENCE - COMPLAINTS CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR INCONSISTENT STATEMENTS The accused, JLF, is charged with one count of Maintaining an Unlawful Sexual Relationship with a Child contrary to s 50(1) Criminal Law Consolidation Act, 1935 and, in the alternative, two counts of aggravated indecent assault and one count of unlawful sexual intercourse with a person under 14 years. The complainant is the accused’s biological younger sister, LGF. The alleged offending is said to have occurred at Morphett Vale and other places between 19 December 2019 and 23 February 2021 when LGF was aged 12 or 13. LGF alleges, that on multiple occasions over an approximate 10 month period, the accused touched her indecently on her buttocks, breasts and vagina and inserted his finger in her vagina. She also alleges that on one occasion, during the same period, the accused caused her to touch his penis. Verdict: The accused is guilty of count 1 on the Information. Juries Act 1927 (SA) s 7; Criminal Law Consolidation Act 1935 (SA) ss 5, 48A, 50(4)(b), 50(12), 56 and 57(2); Evidence Act 1929 (SA) ss 13BA, 13D, 34M and 34P; Summary Offences Act 1953 (SA) Part 17 Division 3, referred to. JJP v R [2021] SASCA 53; Jones v Dunkel [1959] HCA 8; R v Spencer [2019] SASCFC 70; Murray v R (2002) 211 CLR 193, considered. -- 1 of 127 -- -- 2 of 127 -- R v JLF [2024] SADC 107 [Criminal] Introduction 1 The accused, JLF, is charged on Information dated 18 August 2022 with four counts for alleged sexual offending against his biological sister, LGF. The offending is alleged to have occurred at a time when LGF was aged 12 and/or 13, and JLF was aged between 21 and 23. 2 The accused elected to be tried by a judge sitting without a jury, pursuant to s 7 of the Juries Act 1927. The Charges 3 First 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 JLF between the 19th day of December 2019 and the 23rd day of February 2021 at Morphett Vale and other places, maintained an unlawful sexual relationship with LGF, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely: (a) touching her buttocks on more than one occasion; (b) touching her breasts on more than one occasion; (c) touching her vagina on more than one occasion; (d) inserting a finger into her vagina on more than one occasion; and (e) causing her to touch his penis. This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016. 4 Second Count Statement of Offence Aggravated Indecent Assault. (Section 56(1) of the Criminal Law Consolidation Act, 1935). Particulars of Offence -- 3 of 127 -- [2024] SADC 107 2 JLF between the 19th day of December 2019 and the 23rd day of February 2021 at Morphett Vale, indecently assaulted LGF by touching her bottom. It is further alleged that LGF was under the age of 14 years at the time of the offence. This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016. 5 Third Count Statement of Offence Aggravated Indecent Assault. (Section 56(1) of the Criminal Law Consolidation Act, 1935). Particulars of Offence JLF between the 19th day of December 2019 and the 23rd day of February 2021 at Morphett Vale, indecently assaulted LGF by touching her breasts. It is further alleged that LGF was under the age of 14 years at the time of the offence. This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016. 6 Fourth Count Statement of Offence Unlawful Sexual Intercourse with a Person under 14 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935). Particulars of Offence JLF between the 19th day of December 2019 and the 23rd day of February 2021 at Morphett Vale, had sexual intercourse with LGF by inserting a finger into her vagina. This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016. Elements of the Charged Offences 7 Counts 2, 3 and 4 have been laid in the alternative to Count 1. 8 In order for a verdict of guilty to be returned on any count, the prosecution must prove the elements of that count beyond reasonable doubt. Count One 9 The prosecution must prove the four elements of the offence beyond reasonable doubt, namely: 1. That the accused knowingly maintained a relationship with LGF. -- 4 of 127 -- [2024] SADC 107 3 2. In the course of that relationship, the accused engaged in two or more unlawful sexual acts with LGF. 3. That at the time the accused engaged in two or more unlawful sexual acts with LGF, LGF was a child. 4. That at the time the accused engaged in two or more unlawful sexual acts with LGF, the accused was an adult. 10 LGF’s date of birth is 20 December 2007.1 The accused’s date of birth is 16 February 1998.2 The alleged offending is said to have occurred between 19 December 2019 and 23 February 2021. I am satisfied that LGF was a child, aged between 12 and 13 and that the accused was an adult, aged between 21 and 23 during that period (the relevant period). 11 LGF and the accused are biological siblings. During the relevant period, LGF was living (for most of the time) with her mother and brother, LF, at a house in Kenneth Road, Morphett Vale (Kenneth Road), and the accused was living with his grandmother at Ethelton. However, there was no dispute that during the relevant period, the accused and LGF saw each other when the accused would come to stay at the family home and that he and LGF would socialise and spend time together, as siblings. 12 There is no dispute, and I am satisfied, that during the relevant period, the accused knowingly maintained a relationship with LGF. 13 The issue in dispute as to count 1 (and all counts) is whether any of the alleged unlawful sexual acts occurred. 14 An ‘unlawful sexual act’ is an act that constitutes or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence.3 15 A ‘sexual offence’ is defined to mean:4 (a) an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or (b) an attempt to commit, or assault with intent to commit, any of those offences, or (c) a substantially similar offence against a previous enactment. 16 Pursuant to s 50(4)(b) of the Criminal Law Consolidation Act 1935 (the Act), it is not necessary for me to be satisfied of the particulars of any unlawful sexual 1 Exhibit P34 at [2]. 2 Exhibit P34 at [1]. 3 Section 50(12) Criminal Law Consolidation Act 1935 (CLCA). 4 Ibid. -- 5 of 127 -- [2024] SADC 107 4 act as if that act had been charged as a separate offence. However, I must be satisfied as to the general nature or character of those acts. 17 The prosecution must prove beyond reasonable doubt the elements of the ‘sexual offences’ relied upon as rendering the alleged acts ‘unlawful sexual acts’.5 Those sexual offences are the offences of indecent assault and unlawful sexual intercourse. Aggravated Indecent Assault 18 The prosecution allege that the accused engaged in several acts with LGF, each of which constitute the offence of aggravated indecent assault contrary to s 56 of the Act, namely: • touching her buttocks on more than one occasion – particular (a); • touching her breasts on more than one occasion – particular (b); • touching her vagina on more than one occasion – particular (c); and • causing her to touch his penis– particular (e).6 19 The elements of the offence of aggravated indecent assault are: 1. The accused assaulted LGF. 2. The assault occurred in circumstances of indecency. It is a matter for me to consider whether the proven conduct of the accused is indecent by reference to reasonable contemporary standards. I must be satisfied that the conduct had a sexual connotation. 3. LGF was under the age of 14 years at the time of the assault. 20 To prove the first element, the prosecution must prove four sub-elements: • The accused applied force to LGF; • The accused intended to apply force to LGF; • The assault was unlawful; and • The accused knew LGF did not consent or was reckless as to the absence of consent. However, as LGF was under the age of 17 during the relevant period, she is not deemed to be capable of consenting to such conduct.7 5 JJP v R [2021] SASCA 53 per Doyle JA. 6 Noting that the nature of these allegations is such that in the alternative the prosecution could have but did not seek to rely on the alternative offence of compelled sexual manipulation pursuant to s 48A of the Act. 7 Section 57(2) of the Act. -- 6 of 127 -- [2024] SADC 107 5 Unlawful Sexual Intercourse 21 The prosecution allege that the accused engaged in acts with LGF which constitute the offence of unlawful sexual intercourse contrary to s 49(1) of the Act, namely by inserting his finger in her vagina on more than one occasion – particular (d). 22 The elements of the offence of unlawful sexual intercourse are: 1. That the accused had sexual intercourse with LGF; and 2. That LGF was under the age of 17 years at the time. 23 Sexual intercourse is defined to include any activity consisting of or involving penetration of a person’s vagina, labia majora or anus by any part of the body of another person; or fellatio; or cunnilingus.8 Counts 2, 3 and 4 24 Counts 2, 3 and 4 relate to allegations of sexual abuse that took place on a specific morning in the lounge room of the family home at Morphett Vale. 25 Counts 2 and 3 are offences of Aggravated Indecent Assault. As to each count, for a verdict of guilty to be returned, the prosecution must prove the elements as outlined at paragraph 19 herein beyond reasonable doubt. 26 Count 4 is the offence of Unlawful Sexual Intercourse with a person under the age of 14. The first element is that as outlined at paragraph 22.1 herein, however, as to the second element, the prosecution must prove beyond reasonable doubt that LGF was aged under 14 years at the time of the offending. Summary of Prosecution Case 27 The prosecution case is that the accused, on more than one occasion, touched LGF on her buttocks, touched her breasts, touched her vagina and inserted a finger into her vagina. It is also alleged that on one occasion, he caused her to touch his penis. 28 The majority of the offending is alleged to have occurred in LGF’s bed in her bedroom at Kenneth Road. The opportunity for the offending is said to have arisen when the accused slept in that bed, with LGF, when he came to stay at Kenneth Road. 29 LGF was only able to describe the offending that occurred in her bedroom in general terms, with the explanation for this being the fact that it occurred on a regular basis and sometimes when she was under the influence of substances, meaning she was struggling to differentiate each individual occasion of offending. 8 Section 5 of the Act. -- 7 of 127 -- [2024] SADC 107 6 30 However, she described, in more detail, other occasions of offending in other locations, including in the lounge room and in a tent at Kenneth Road, at her friend’s house on New Year’s Eve 2020 and at her Nanna’s house in Ethelton. 31 It is the prosecution case that the offending occurred in the context of the accused buying LGF things and spending money on her by taking her out, and that the offending was facilitated, at times, by the accused providing LGF with alcohol or drugs, which they would then consume together. Summary of Defence Case 32 The defence case was simply that the alleged unlawful sexual acts did not occur. 33 Specific challenges were made as to the reliability and credibility of LGF’s evidence and as to the reliability and credibility of the evidence given by both RW and LF on ancillary matters which otherwise supported LGF’s account. 34 Notwithstanding how some of the witnesses were cross-examined, no specific motive for LGF to lie was relied upon and specifically, it was not the defence case that LGF had made up the allegations at the behest of her mother or her other brother, LF.9 Witnesses and Exhibits 35 The prosecution called evidence from the complainant, LGF.10 In addition, evidence was called from: • The complainant’s mother, KW; • The complainant’s brother, LF; • The complainant’s friend, JMT; and • Brevet Sergeant Lock. 36 The prosecution tendered numerous exhibits including: • Statement of Agreed Facts.11 • An audio-visual recording of an interview conducted between Detective Brevet Sergeant Kittel (Officer Kittel) and LGF on 6 May 2021 (the first LGF interview).12 9 See direction at [97]-[98] herein as to the absence of any specific motive to lie. 10 See further discussion below as to how this evidence was led. 11 Exhibit P34. 12 Exhibit P1. -- 8 of 127 -- [2024] SADC 107 7 • An audio-visual recording of an interview conducted between Officer Kittel and LGF on 29 January 2022 (the second LGF interview).13 • An edited audio-visual recording of the evidence given by LGF at the first trial on 17 and 18 August 2022.14 • An affidavit affirmed by LGF on 31 May 2024.15 • An edited audio-visual recording of an interview conducted between Sergeant Williams and the accused on 3 June 2021.16 • A copy of the transcript of the evidence given by the accused at the first trial on 23 and 24 August 2022.17 • Edited transcripts of the abovementioned recordings were provided.18 When referring to the evidence contained in those recordings, I will refer to the relevant page and/or paragraph number contained within the transcript of the recording, for ease of reference. 37 The accused exercised his right not to give evidence at trial. 38 He tendered several exhibits and called evidence from Mrs Marie Shaw KC and Mr Garry Anderson. Legal Directions General 39 The prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. There is no onus on the accused to prove anything. It is not for the accused to prove that he did not commit the offence(s) as charged. 40 As to each count, the accused is presumed by law to be innocent of the charge unless and until the evidence that I accept satisfies me that every element of the offence has been proved beyond reasonable doubt. Nothing short of proof beyond reasonable doubt will suffice. 41 There are four counts on the Information. I must assess these counts separately and only take into account the evidence that is relevant and admissible to the count under consideration. 42 As to each count, it is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before the accused is 13 Exhibit P3. 14 Exhibit P18. This trial was a re-trial (see discussion as to the admissibility of the evidence in this form at [67]-[70] herein). 15 Exhibit P20. 16 Exhibit P29. 17 Exhibit P33. 18 MFI P2, MFI P4, MFI P19 and MFI P30. -- 9 of 127 -- [2024] SADC 107 8 convicted of an offence, I must be satisfied that the prosecution has proved beyond reasonable doubt each element of that offence. I must reject beyond reasonable doubt the accused’s denial and any explanation(s) proffered by him. 43 In these reasons, if I use the words ‘proved’, ‘established’ or ‘satisfied’, I mean to a standard of beyond reasonable doubt. As to each count, considered separately, if I am satisfied that there is a reasonable explanation consistent with the innocence of the accused, or I am uncertain where the truth lies, then I must find that count has not been proven beyond reasonable doubt. 44 I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or a part of a witness’s evidence. 45 Neither the complainant’s older sister, ZF, her grandmother, RW, nor her friend, Sadie, were called to give evidence. 46 There was evidence led that ZF visited Kenneth Road on occasions during the relevant period, including participating in card games, being evidence relevant to why the accused chose to sleep in the complainant’s bedroom, rather than in the lounge room, from time to time. 47 The complainant lived with RW and the accused for several weeks in January 2021. As such, RW may have made observations as to interactions between the accused and LGF during that period which may have assisted the Court to assess the reliability and credibility of the complainant’s evidence and of the evidence given by the accused at the first trial. 48 Officer Lock gave evidence that RW declined to provide an affidavit to police.19 49 The complainant gave evidence that Sadie was with her and the accused at a nearby park when the accused encouraged them to participate in a game of truth or dare, during which he asked her questions of a sexual nature. Sadie is also alleged to have been present the next day, when the accused allegedly sexually abused the complainant when he, the complainant and Sadie, were all lying on the complainant’s bed. 50 As such, these witnesses and in particular, Sadie, may have been able to provide evidence to the Court which was relevant to the issues in dispute. 51 I must not speculate about the nature of any evidence I have not heard. I simply do not know what evidence may have been given by any absent witness. I must decide the case only on the evidence before me. 19 T 183.17-21. -- 10 of 127 -- [2024] SADC 107 9 52 LGF did not provide Sadie’s surname until she gave evidence at the first trial. Officer Lock gave evidence that she had not made any attempts to locate Sadie and that other attempts the police had made to locate Sadie were unsuccessful. There was no evidence as to precisely what those attempts entailed.20 53 Although I was not specifically requested to draw a Jones v Dunkel21 inference due to the absence of any evidence being called from Sadie, I direct myself that where there is a witness available to substantiate the prosecution case and that witness is not called, nor an adequate explanation offered as to why, I may conclude that the prosecution did not consider the evidence of that witness likely to assist the prosecution case. However, in the absence of that witness, I must not speculate as to what evidence they may have given. I must determine whether the prosecution has proved the accused’s guilt as to a count or counts, based solely on the evidence before me. 54 The accused was under no obligation to give evidence at the first trial. I should give him whatever credit I see fit for subjecting himself to cross- examination at the first trial. I must assess his evidence in the same way as I assess the evidence of any other witness. I remind myself that if I was to reject that evidence in its entirety, that does not bolster, nor strengthen the prosecution case. The prosecution must prove each element of the offences charged beyond reasonable doubt. 55 The accused elected not to give evidence at the trial. In doing so, he was exercising his right to silence. I must not draw any adverse inference against the accused for exercising that right. He was entitled to put the prosecution to proof and if the prosecution is unable to prove its case as to a count or counts, then the accused is entitled to a verdict of not guilty to that count or counts. 56 Evidence was led as to the accused’s good character. This evidence was before the Court for two purposes. The evidence is relevant to both the probability that the accused committed any of the alleged offences (that is, as a person of good character it is argued he is less likely to have done so, it not being in his nature) and to my assessment of the credibility of the accused’s denials with respect to the offending and his evidence generally. Of course, if I accept that the accused is a person of good character I may, nonetheless, accept other evidence that leads me to conclude beyond reasonable doubt that he is guilty of an alleged count or counts. 57 As to the making of inferences, I must not guess or speculate. There must be a logical and rational connection between the facts I find and the inferences I draw. 58 I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice, or fear and must not be influenced by public opinion in relation to this matter. 20 T 183.12-16; T 185.22-186.11. 21 [1959] HCA 8. -- 11 of 127 -- [2024] SADC 107 10 Complainant’s Evidence 59 LGF’s evidence is critical to the prosecution case as to each count. I must carefully scrutinise her evidence before I can be satisfied beyond reasonable doubt of its truthfulness and accuracy. 60 The first LGF interview was conducted on 6 May 2021, when LGF was aged 13. The second LGF interview was conducted on 29 January 2022, when LGF was aged 14. Audio visual recordings were made of each of those records of interview. 61 An application was made for the audio-visual recordings of the first and second LGF interviews to be admitted into evidence pursuant to s 13BA of the Evidence Act 1929 (EA).22 I determined that each audiovisual record was made in accordance with Part 17 Division 3 of the Summary Offences Act 1953 and that at the time each audiovisual record was made, LGF had the capacity to give either unsworn or sworn evidence. I was further satisfied that LGF had made herself available, previously, for cross-examination and re-examination and was prepared to make herself available for any such further examination, if necessary. 62 I must not draw any inference adverse to the accused because the evidence was admitted in this form, nor must I allow this to influence the weight given to that evidence. 63 It was agreed between the parties that the Court should disregard the evidence in the first LGF interview at line 762, lines 1826 to 1845, lines 1865 to 1871, lines 2069 to 2070 and lines 2213 to 2272.23 64 I am of the view that lines 1426 to 1469 and line 2429 of the first LGF interview are also inadmissible. 65 It was also agreed that the Court should disregard the evidence in the second LGF interview at lines 319 to 331, lines 404 to 408 and lines 432 to 442.24 66 I have disregarded the portions of each interview as identified. 67 Prior to trial, the prosecution made an application pursuant to s 13D of the EA for the Court to admit into evidence an official record of the evidence given by LGF at the first trial.25 Section 13D of the EA states: 13D—Court's power to admit evidence taken in earlier proceedings (1) If, on application by a party to civil or criminal proceedings before a court, the court is satisfied that— 22 Interlocutory Application dated 2 May 2024, FDN 34. 23 T 21.7-14. 24 T 23.2-15. 25 Interlocutory Application dated 23 May 2024, FDN 42, supported by an affidavit affirmed by LGF on 23 May 2024, FDN 43. -- 12 of 127 -- [2024] SADC 107 11 (a) evidence given by a witness in earlier criminal proceedings is relevant to the proceedings before the court; and (b) the witness— (i) has died; or (ii) has become too ill or infirm to give evidence; or (iii) has not, after diligent search, been found; or (iv) is a vulnerable witness, the court in the later proceedings has a discretion to admit an official record of the evidence. (2) An official record of evidence is a record made at the direction or with the approval of the court before which the evidence was taken and, if an audio or audio visual record of the evidence was taken at the direction or with the approval of the court, in addition to a written transcript, the official record of evidence includes the audio or audio visual record. (3) Before the court admits an official record into evidence in proceedings under this section, the record must be edited— (a) as agreed between the parties to those proceedings so as to exclude material that is not relevant to those proceedings; and (b) so as to exclude evidence that is inadmissible in those proceedings for any other reason. (4) If the court admits an official record into evidence under this section, it may relieve the witness, wholly or in part, from an obligation to give evidence in the later proceedings. 68 The application was initially opposed on the basis the accused intended to seek leave to further cross-examine LGF on certain topics. The application seeking leave to further cross-examine LGF was ultimately not proceeded with. 69 LGF gave sworn evidence under cross-examination and re-examination at the first trial, when she was still aged 14. 70 I was satisfied that LGF was a vulnerable witness and that it was otherwise appropriate to admit an official record of the evidence she gave at the first trial into evidence at the trial. 71 When LGF gave evidence at the first trial, the court was closed and her evidence was recorded. I must not draw any inference adverse to the accused because the evidence was admitted in this form, nor must I allow this to influence the weight given to that evidence. -- 13 of 127 -- [2024] SADC 107 12 Complaint Evidence26 72 LGF gave evidence that the first person she told about the alleged offending was her friend, JMT. She said that she did not go into detail, instead telling her only that the accused had sexually touched her. JMT also gave evidence to this effect. This evidence was admitted, without objection, as evidence of LGF’s initial complaint pursuant to s 34M of the EA. 73 LGF gave evidence that she also told her brother, LF about the alleged offending. LF gave evidence that during this conversation, LGF gave details about the alleged offending, including that the accused had been fingering her. This evidence was admitted, without objection, as evidence by way of elaboration of the initial complaint. 74 Evidence of the initial complaint and the elaboration of that complaint made by LGF is an exception to the rule which prohibits proof of prior, out of court, consistent statements. 75 Complaint evidence is admitted to inform the trier of fact as to how the allegations first came to light and as evidence of the degree of consistency of conduct of the complainant. 76 Importantly, complaint evidence is not admitted as evidence of the truth of what was alleged and cannot be used as some form of independent evidence to prove what happened, as, only the evidence of the complainant as to the allegations of the specific offending against her, is able to prove that. 77 There may be many and varied reasons why an alleged victim of a sexual offence has made a complaint at a particular time or to a particular person. It is for me to determine the significance (if any) of the evidence in the circumstances of this case. Forensic Disadvantage 78 LGF’s evidence lacked specific detail as to precisely when some of the alleged unlawful sexual acts occurred, namely those which were said to have occurred in her bedroom and the lounge room at Kenneth Road and the offending at RW’s house at Ethelton. 79 The accused did not live with LGF at Kenneth Road. There was no real dispute that he only visited (and stayed overnight) at the family every two or three weeks on a weekend. 26 There was evidence from which it could be inferred that LGF told her mother about the alleged offending on 22 February 2021, when LGF was at the Flinders Medical Centre. Shortly thereafter the alleged offending was reported to the police. This evidence was not led by way of complaint evidence, rather it was led only to explain how the alleged offending came to be reported to the police and to provide context as to timing of various text messages exchanged thereafter between KW and the accused. I have only used that evidence for those limited purposes. I have disregarded the evidence at T 82.12 as it is inadmissible. -- 14 of 127 -- [2024] SADC 107 13 80 Had a timely complaint been made by the complainant, in each instance, of the alleged offending, the accused may have been able to provide a relatively contemporaneous recollection of the nature of his interactions with the complainant at the time of each alleged unlawful sexual act. For example, he may have been able to prove whether he was present at Kenneth Road on the occasions of the alleged abuse. 81 I accept that in these circumstances, the accused has been deprived of the opportunity to properly identify the occasions of that alleged offending, to defend those allegations other than by way of a bare denial and to fully test the complainant’s reliability and credibility by reference to the surrounding circumstances of those alleged acts. 82 I have taken this forensic disadvantage into account when scrutinising the evidence and in assessing whether the prosecution has proved each element of the offences as charged beyond reasonable doubt. Discreditable Conduct 83 Evidence of discreditable conduct was adduced and admitted at trial pursuant to s 34P, for permissible purposes which did not rely on propensity reasoning. 84 The complainant gave evidence that the accused had talked to her about sexual things, when playing games such as truth or dare. The complainant gave evidence that during such games, the accused had asked her questions of a sexual nature and had dared her to kiss her friend, Sadie.27 This evidence is evidence of discreditable conduct. It was led without objection. 85 The evidence was led for a permissible purpose which did not engage propensity reasoning, namely, to demonstrate the nature of the relationship between LGF and the accused, how they would interact with one another and how, by his actions, the accused was normalising sexual behaviour. The prosecution relied on this evidence to demonstrate that the accused was grooming the complainant by normalising conduct of a sexual nature between them. 86 I am satisfied that the probative value of this evidence outweighs any prejudicial effect it may have on the accused. 87 The complainant gave evidence that the accused would buy her alcohol and drugs and that they would consume alcohol and drugs together. This evidence is evidence of discreditable conduct. It was led without objection. 88 The evidence was led for a permissible purpose which did not engage propensity reasoning, namely, to demonstrate the nature of the relationship between LGF and the accused and the context in which the alleged offending occurred. Further, the prosecution relied on this evidence to establish how the 27 First LGF interview at p 51, lines 2248-2462. -- 15 of 127 -- [2024] SADC 107 14 accused facilitated access to LGF to commit the alleged offending, to explain why it was that she was compliant and to demonstrate the degree of control he consequently had over her. The evidence was also relied upon to provide an explanation as to why LGF cannot recall specific details of occasions when she was abused and as to the accused’s state of mind and/or disinhibition at the time of some of the alleged offending. 89 I am satisfied that the probative value of this evidence outweighs any prejudicial effect it may have on the accused. 90 There was evidence led from several witnesses that the accused regularly slept in the complainant’s bed, with the complainant. This is arguably discreditable conduct evidence. It was led without objection. 91 The evidence was led for a permissible purpose which did not engage propensity reasoning, namely, to prove that the accused had the opportunity to commit the unlawful sexual acts the complainant alleged had occurred in her bedroom. It was further led as to the context in which the alleged offending occurred. 92 I am satisfied that the probative value of this evidence outweighs any prejudicial effect it may have on the accused. 93 If I accept some or all of the discreditable conduct evidence, I must only use that evidence for the permissible purpose or purposes as specified. I must not use that evidence to reason that the accused is more likely to have committed any of the offences because of this conduct. Further, I must not reason from this evidence that the accused is a person of bad character and is therefore the type of person who would commit any of the alleged offences. 94 If any evidence of discreditable conduct is essential to my process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted, are established beyond reasonable doubt. Lies 95 The prosecutor submitted that the Court should reject the accused’s evidence and what he said during his record of interview, when he denied having supplied LGF with alcohol or cannabis, as such evidence was said to be contrary with all of the other evidence. 96 Insofar as it may be suggested that the accused lied either in his evidence or record of interview, I remind myself that whether the accused has told a lie or lies is a matter for me to determine. If I am satisfied the accused has lied, this is relevant and can be used in my assessment of the accused’s credibility. However, I cannot use this as evidence of his guilt. If I find the accused has lied, it does not add to the prosecution case. It remains for me to determine, having regard to all of the -- 16 of 127 -- [2024] SADC 107 15 evidence, whether the evidence is sufficient to satisfy me beyond reasonable doubt as to the accused’s guilt of a count or counts. Motive to Lie 97 Counsel for the accused expressly disavowed any reliance on an argument that the complainant had a specific motive to lie about the offending and/or had lied about the offending at the insistence of or with the encouragement of her mother, KW, to seek retribution for alleged sexual abuse perpetrated against KW many years earlier by another family member, or at the behest of LF. 98 However, as LGF’s evidence is critical to the prosecution case as to each count, I must be satisfied that her evidence is both true and accurate. It is not for the accused to demonstrate or prove to me that she is wrong or lying. There may be many reasons that a witness may lie and I must not speculate about those. I must not treat LGF’s evidence as being more credible or more believable simply because there is no evidence to provide a reason for why she might be lying. I must carefully consider all of the evidence to determine whether I am satisfied as to her credibility and reliability. Bad Character of Complainant 99 The prosecution tendered as an exhibit, by consent, an affidavit affirmed by LGF on 31 May 2024, containing her evidence as to an image with captions that she posted to her Instagram account at a time prior to May 2023.28 The image is a photograph of various items of jewellery (still in packaging) and makeup. The caption reads ‘Fun little rack up’. 100 LGF affirmed that when she wrote this, she was referring to having fun and to her having stolen something. She said she did not steal the jewellery or the nail drill depicted in the image but admitted to having stolen the other items depicted.29 101 By this, and other evidence,30 LGF acknowledged that she has a history of behaving dishonestly, being another matter relevant to the care and caution I must exercise when assessing the credibility of her evidence. 102 Of course, a person who may be considered to be of bad character may nevertheless give honest and credible evidence. Prior Inconsistent Statements 103 In his closing address, counsel for the accused submitted that the evidence given in court under oath by the complainant differed in certain aspects from what 28 Exhibit P20. 29 Exhibit P20 at [6]-[8]. 30 LGF also gave evidence to the effect that she and a friend had stolen ‘shrooms from a friend’s father and home brew from a friend’s mother. -- 17 of 127 -- [2024] SADC 107 16 she had told the police in her various statements and in her proofings with the Director, such I should have doubts as to both her reliability and credibility. 104 Insofar as those alleged inconsistencies (or omissions) relate to statements made out of court, and not in either the first or second LGF interviews, the out of court prior inconsistent statements are relevant and put before me to assist me to determine the reliability and credibility of the complainant’s evidence given in court and in the first and second LGF interviews. Any inconsistency in the evidence given by the complainant is also obviously relevant to my assessment of the complainant’s reliability and credibility. 105 Before I have regard to a prior inconsistent statement there must be some evidence that the prior inconsistent statement has been made. I may use evidence that LGF has said something different on a previous occasion or omitted to say something on a previous occasion as evidence affecting her credibility and reliability. 106 I will consider those aspects of the evidence, whether given by LGF or any other witness, said to be inconsistent with earlier evidence (and/or out of court statements), in my analysis and findings with respect to the evidence. Background Facts - Not in Dispute Family Members/Living Arrangements 107 As previously stated, LGF and the accused are biological siblings, with the accused being some 10 years older than LGF. 108 The accused is the second oldest of four siblings, with LGF being the youngest. Their oldest sibling is a sister, ZF, born on 6 November 1996.31 A third sibling, a brother, LF, was born on 19 June 2003, meaning he is some four years older than LGF.32 109 During the relevant period, LGF lived with her mother, KW and LF at Kenneth Road. This was a three-bedroom house, the floorplan for which is accurately depicted in Exhibit P6. 110 Neither ZF, nor the accused, lived with the family at Kenneth Road. When the accused turned 18, the accused moved out of the (then) family home33 and went to live with his maternal grandmother, RW,34 at Ethelton. KW and RW did not get along very well.35 111 The accused continued to visit and stayed at Kenneth Road during the relevant period. Those visits would ordinarily be on the weekend, as the accused 31 T 62.36-37. 32 T 63.10-13. 33 Being another house also in Morphett Vale. 34 LGF referred to KW as either ‘Nanna’ or ‘Nan’ during her evidence. 35 MFI P19 at T 151.34-36. -- 18 of 127 -- [2024] SADC 107 17 worked full time, six days a week, as an apprentice glazier. The accused stayed the night at Kenneth Road approximately once a fortnight or once every three weeks, on average. 112 The accused gave evidence, supported by that of Mr Anderson, that he was required to work on Saturdays. This evidence was not challenged. It was the accused’s case that as he worked on Saturday mornings, he would visit Kenneth Road after work on a Saturday, and only ever stay there on a Saturday night, except when he got some time off around Christmas. The evidence given by LGF and KW was consistent with this.36 113 The accused did not have a bedroom at Kenneth Road. When the accused stayed there, he slept in various locations, including on a mattress on the floor of the lounge room and in LGF’s bedroom. I will return to those sleeping arrangements, later in these Reasons. 114 LGF’s bedroom was towards the rear of the house, immediately adjacent to the kitchen/dining room but separated from that room by a small passage and two doors. 115 LF’s bedroom was immediately adjacent to LGF’s bedroom, at the very rear of the house. He would need to walk past LGF’s bedroom door to get to the kitchen or the toilet. 116 The lounge room was at the front of the house, immediately adjacent to the kitchen/dining room. There was an open doorway between these two rooms. 117 KW’s bedroom was opposite the lounge room, at the front of the house. The front door of the house led to a small hallway, from which both KW’s bedroom and the lounge room were accessible. To get to the kitchen from her bedroom, KW would need to walk across that hallway and through the lounge room. LGF’s Schooling 118 LGF attended three different primary schools between February 2013 and December 2019 and one secondary school between February 2020 and September 2021.37 119 During 2020, LGF was attending secondary school in Year 7 and was aged 12. 38 She turned 13 on 20 December 2020, being shortly after she completed Year 7. As such, during the relevant period, LGF was in Year 7 at secondary school and/or just about to start Year 8. 36 Noting LF gave evidence that he thought the accused would stay on Friday nights, although he conceded it may have been the Saturday; T 118.11-12. 37 Exhibit P31. 38 Exhibit P34 at [17]. -- 19 of 127 -- [2024] SADC 107 18 120 During cross-examination, LGF agreed with a proposition put to her that she had been suspended from school prior to starting high school. She explained that this had occurred twice and was because she had responded to bullying perpetuated against her.39 She agreed that sometimes she would go a number of days without turning up for school. 121 Exhibit P31 contains a record of the days LGF was either absent or late for school during the period 2013 to September 2021. By way of summary: • During 2013 (Reception), LGF was late to school 21 times and absent from school for 7 full days. • During 2014 (Year 1), LGF was late to school 31 times, absent for 17 full days and absent for two half days. • During 2015 (Year 2), LGF was late to school 19 times, absent for five full days and absent for three half days. • During 2016 (Year 3), LGF was late to school four times and absent for seven full days. • During 2017 (Year 4), LGF was late to school 26 times, left school early six times and was absent for nine full days. • During 2018 (Year 5), LGF was late to school 25 times, left school early 11 times and was absent for 18 full days. This data includes 18 June 2018 when LGF left early due to suspension and 19 June 2018 when she was absent due to suspension. • During 2019 (Year 6), LGF was late for school 16 times, left early three times and was absent for 15 full days. • During 2020 (Year 7), LGF was late for school 33 times, left school early eight times, was absent for 14 half days and was absent for 13 full days. This data includes three days when she was absent for suspension on 10 March 2020, 11 March 2020 and 25 September 2020 and when she arrived late, and was then absent in the afternoon, for suspension, on 27 November 2020. • Between 28 January 2021 and 22 February 2021 (Year 8), LGF was late to school four times, absent for four half days and absent for four full days. • Between 23 February 2021 and 17 September 2021, LGF was late to school 11 times, left school early seven times, absent for 30 half days and absent for 42 full days. Many of these absences occurred in March and in early May. 39 MFI P19 at T 201.9-202.14. -- 20 of 127 -- [2024] SADC 107 19 This data includes five days when LGF was suspended (or excluded) between 3 and 7 May 2021. 122 Some of the above absences or late arrivals/early departures were explained as being related to family or social reasons or were verified with a sick certificate, however, the majority were unexplained. Self-Harm 123 Evidence was elicited from LGF in cross-examination that she had been engaging in self-harm since Year 4 and that this had continued until she stopped having contact with the accused. This included cutting herself.40 She gave the following evidence:41 Q. Because life at home was pretty hard for you for a fair while, wasn’t it. A. Just life in general. LGF runs away New Years Eve 2020 124 The family held a party at Kenneth Road on New Years Eve 2020. There was no dispute that LGF ran away from Kenneth Road during the afternoon that day and went to JMT’s house. LGF gave evidence, confirmed by her mother, that this was precipitated by a fight between LGF and her mother over the large number of energy drink cans that LGF was collecting in her bedroom.42 125 LGF stayed at JMT’s house for a few days and then went to stay with her Nanna (and therefore also with the accused) at Ethelton. She returned to live at Kenneth Road just prior to the commencement of the 2021 school year. Prosecution Case Summary of Alleged Offending 126 The prosecution case as particularised in the Information is that between 19 December 2019 and 23 February 2021, the accused sexually abused LGF on multiple occasions, both at Kenneth Road and other locations. 127 Although LGF could not recall the details of the first occasion of abuse, she believed it occurred in her bedroom at Kenneth Road, when the accused was sleeping in her bed with her. LGF gave evidence that the offending started about 8 to 10 months before the first prescribed interview, that is, around July or September 2020.43 128 LGF alleges the accused touched her on her breasts and buttocks and inserted his fingers (or fingers) into her vagina on multiple occasions when they were in 40 MFI P19 at T 200.22-201.5. 41 MFI P19 at T 201.6-8. 42 Noting that LGF and KW gave different evidence as to the precise circumstances of that fight. 43 First LGF interview at p 37, lines 1755-1757. -- 21 of 127 -- [2024] SADC 107 20 her bed together. She would lie there and pretend to be asleep. Nothing would be said between them and the touching would stop when LGF rolled over and pretended to wake up. On one specific occasion, the accused moved her hand onto his naked penis. 129 LGF also recalled the accused abusing her in the lounge room at Kenneth Road one morning when she was aged 12. She had made up a bed on the lounge room floor to sleep there the night before. The next morning the accused came into the room and lay next to her, under the blanket. The accused touched her inappropriately on her buttocks, breasts and vagina and inserted his fingers into her vagina. She remembered that her mother had entered the room while this was occurring, as she walked from her bedroom into the kitchen. 130 LGF also described alleged offending in a tent that had been erected under the carport at Kenneth Road. This occurred on only one occasion and involved the accused touching her inappropriately, in the same way as he had touched her when they were in her bed in her bedroom. 131 The allegations outlined above were described by LGF during the two prescribed interviews conducted by Officer Kittel. 132 During her evidence-in-chief, LGF gave evidence that the accused touched her inappropriately after they and Sadie had been drinking UDL cans together on the oval and had played a game of ‘Truth or Dare’ at the accused’s instigation. The offending occurred the next morning when she, Sadie and the accused were lying on LGF’s bed in her bedroom at Kenneth Road. 133 During cross-examination, LGF described alleged abuse which occurred when she was alone with the accused at JMT’s house on New Years’ Eve 2020. She gave evidence that when they were in bed together, the accused touched her on her buttocks and inserted his finger in her vagina. She also described an occasion when she was staying at her Nanna’s house at Ethelton, in January 2021, when she was in the accused’s bed and he touched her on the buttocks. She said this was the last time the accused had touched her inappropriately. LGF’s Relationship with the Accused – LGF’s Perspective General 134 LGF gave evidence-in-chief that when she was growing up, she had a normal brother/sister relationship with the accused. She recalled him doing her hair when she was younger, ‘just normal sibling stuff’.44 Neither their relationship, nor his behaviour towards her, had really changed after he started touching her.45 135 LGF and the accused became close when he moved out of the family home. She would confide in him about things going on in her life, and similarly, he would 44 MFI P19 at T 108.13-16. 45 MFI P19 at T 109.11-15. -- 22 of 127 -- [2024] SADC 107 21 confide in her. For example, she told him about her mother threatening to hit her with a lacrosse stick because she was not cleaning her room and doing her chores. He discussed with her his relationship with their mother and how he felt she had neglected him. However, LGF denied a proposition that the accused told her their mother had been physically violent towards him.46 136 LGF told Officer Kittel that the accused spent a lot of money on her. She thought he might be buying her things ‘to keep (her) quiet’,47 but she acknowledged that he may have done this as he just had a lot of money.48 137 The accused would take LGF out to lunch, take her ice skating, bought her clothes and they went to ‘Build a Bear’ together. He did not buy her anything sexual. Sometimes the accused would take LGF to the movies on weekends, or to the beach. He would pay for things on these outings. KW did not have the money to pay for these things.49 138 LGF said the accused also bought things for LF, but that LF did not come out with them, so she thought the accused spent more money on her than on him.50 She agreed with a proposition put to her in cross-examination that LF stopped going out with her and the accused because he wanted to stay in his room, smoke cannabis and spend time with his girlfriend.51 She therefore agreed that it was not the case that the accused was trying to spend more time with her when she was in Year 7, but simply that was just the way things panned out.52 139 LF gave evidence that there were times that the accused would take both him and LGF out, but said, ‘I think it was mainly him and [LGF]’.53 He was not asked by the accused to go ice skating because the accused knew he hated ice skating.54 140 LF did not observe any change in LGF’s relationship with the accused while they were at Kenneth Road and said that they were always really close. However, he said his relationship with the accused changed because the accused would spend only 10 minutes hanging out with him and then leave for the whole next day. As to what he meant by this he said:55 A. No, just like go, be in [LGF]'s room instead of hanging out with me. Because I had a couch and everything like that and I just thought it was the better room to hang out in, so I just found it and took it personally, I guess, that he'd chose to sit in the room with four walls and her. 46 MFI P19 at T 159.9-160.5. 47 First LGF interview at p 42, lines 2046-2047. 48 First LGF interview at p 43, line 2063. 49 MFI P19 at T 155.22-29. 50 First LGF interview at p 4, lines 2125-2141. 51 MFI P19 at T 158.22-30. 52 MFI P19 at T 159.8. 53 T 146.2-3. 54 T 146.10-13. 55 T 123.18-23. -- 23 of 127 -- [2024] SADC 107 22 141 LF noticed a change in LGF’s behaviour during the time they lived at Kenneth Road. He said this started about two months after his birthday party. During his evidence-in-chief, he said this was a party for his 16th birthday. LF turned 16 on 19 June 2019. As to how it changed, he said:56 A. Just seemed like she was trying to do things for like attention, like making, like arguments out of nothing and then just like not listening and just having her room as messy as possible and just being a nuisance, it seemed like, for no reason. 142 LF agreed he had a girlfriend at this time, but this did not change the fact he was still always in his room.57 143 During cross-examination, LF said that there was a time in 2020, the weekend after his birthday party, that he started having less contact with the accused, as the accused was hanging out more in LGF’s room. This was at a time when he (LF) had a girlfriend.58 144 In January 2021, shortly after LGF ran away from home, she asked the accused for money to enable her to go with a friend and her family on a holiday to the Riverland. LGF gave the accused her friend’s mother’s bank account details and he then transferred money to that account.59 LGF thought this was $100 for accommodation and $50 for food.60 Alcohol 145 LGF told Officer Kittel that the accused would buy her alcohol and give it to her in either bottles, cans or a cup. She said she was pretty sure he would buy her alcohol to get her drunk and ‘so he could do stuff easier’.61 146 During the second LGF interview, LGF elaborated on this. She said:62 Sometimes I’d want alcohol and he was old enough so I just asked if he’d do it and sometimes he’d just, I went with him a couple, one time that I remember. 147 She described an occasion when she went for a walk to a party and had waited around the corner while the accused went to a ‘bottle o’ at the Emu at Morphett Vale to buy her alcohol.63 56 T 124.6-10. 57 T 147.3-8. 58 T 146.23-147.8. 59 Exhibit D16 is a copy of messages exchanged between LGF and the accused about this. 60 MFI P19 at T 157.5-27. 61 First LGF interview at p 45, lines 2158- 2162. 62 Second LGF interview at p 6, lines 274-275. 63 Second LGF interview at pp 6-7, lines 280-317. -- 24 of 127 -- [2024] SADC 107 23 148 LGF gave evidence-in-chief that the accused had started buying her alcohol sometime during Year 7, in 2020. As to how often he would buy her alcohol, she said this was ‘whenever there was a party or something’.64 She said:65 I used to try to ask sometimes, but like we’d go out and drink sometimes, but yeah, it was mostly at parties. 149 She described an occasion when she and the accused walked from Kenneth Road to the Emu Hotel, he bought a spirit and a Little Fat Lamb, they skulled the spirit and then drank the Little Fat Lamb at the party.66 She said that she remembered trying to be cool and keep up with the adults. She said she wasn’t too bad and just felt happy, drunk and tipsy.67 150 LGF also gave evidence about an occasion when she and her friend, Sadie, had wanted to hang out together and drink. As the accused was her older brother, she asked him for alcohol. He bought some UDL cans and they had all ended up hanging out and drinking together. She remembered them walking through an area where there were some old drainpipes, to an oval. She thought she and Sadie each had about four UDL cans.68 As to how she felt thereafter, she said it wasn’t too bad, they were having a fun time and laughing. She did not remember being fully drunk. She was aged 13 at this time. 69 151 LGF gave evidence-in-chief that she had also drunk alcohol at Kenneth Road. She could not recall how many times this had occurred, but it was less than 10 times. The accused had also bought her an alcoholic drink called ‘Red Bear’ between three to five times.70 152 She would drink the alcohol either at Kenneth Road, in her bedroom, or in LF’s bedroom, or in the backyard, or they would go for a walk to the park or somewhere. Most of the time the accused would be with her and would also be drinking. This made her feel tipsy but not fully drunk. He had also bought her other types of alcohol, but she could not remember what types.71 153 Sometimes the accused would sleep over at Kenneth Road in her room after he had given her alcohol, but other times he would go to a friend’s house.72 She could recall only one time when the accused had offended against her after he had bought her alcohol and that was after she, Sadie and the accused had drunk the UDL cans together.73 64 MFI P19 at T 110.7. 65 MFI P19 at T 110.15-16. 66 MFI P19 at T 110.19-31. 67 MFI P19 at T 112.15-19. 68 MFI P19 at T 111.17-112.7. 69 MFI P19 at T 112.27-33. 70 MFI P19 at T 112.35-113.12. 71 MFI P19 at T 113.13-114.4. 72 MFI P19 at T 114.34-115.7. 73 MFI P19 at T 114.16-33. -- 25 of 127 -- [2024] SADC 107 24 154 LGF denied a proposition put to her in cross-examination that the accused had never given her alcohol because he wanted her to be fit and healthy. She said:74 He gave me alcohol. He took me to parties and let me get drunk with him. 155 She could not remember the detail of those occasions.75 Drugs 156 LGF gave evidence-in-chief that when the accused came to stay at Kenneth Road, he would give her marijuana (cannabis) and they would smoke it together. This had first occurred when she was in Year 7. She could not recall how many times this had happened.76 She and the accused would smoke marijuana from a bong. They would usually smoke in LF’s room, but there was a time when they smoked in her room.77 157 LGF described an occasion when she and the accused smoked cannabis from a bong that he had brought with him. She had one or two cones and it had made her feel calm and drowsy. Afterwards she went to bed and the accused slept in her bed with her.78 158 LGF thought that the accused had touched her inappropriately two or three times after she had consumed cannabis with him but she could not recall the details of those occasions.79 159 In cross-examination, LGF denied a proposition that the accused did not want her to be smoking cannabis. She said, ‘(h)e gave me his bong and weed’.80 Other Alcohol Use - LGF 160 The accused was not the only person to give LGF alcohol. 161 LGF said her older sister, ZF, had sometimes given her alcohol but did not know if this was in 2020.81 Although she initially denied drinking LF’s alcohol, she then acknowledged that LF had given her alcohol, namely a ‘little fat lamb’.82 162 LF gave evidence that her saw LGF drinking alcohol at what he thought was her 13th birthday party. He said the accused had supplied vodka to LGF and her friends to drink at the party. He said, ‘I’m pretty sure he watered it, like watered it all down just because he didn’t want them getting too fucked’.83 74 MFI P19 at T 173.10-11. 75 MFI P19 at T 173.12-13. 76 MFI P19 at T 115.8-28. 77 MFI P19 at T 115.35-37. 78 MFI P19 at T 115.38-116.20. 79 MFI P19 at T 116.21-25. 80 MFI P19 at T 167.22. 81 MFI P19 at T 171.36-172.7. 82 MFI P19 at T 172.35-173.3. 83 T 122.24-26. -- 26 of 127 -- [2024] SADC 107 25 163 In cross-examination, LF denied a proposition that he was the one who had provided LGF with vodka at her 13th birthday party, not the accused. He said:84 A. How would I get alcohol when I'm under-age at that time? The only person that could supply me alcohol was [JLF]. Q. So you're saying that there was no way you could do that because you couldn't even possibly get alcohol. A. Yes. I didn't do that and I couldn't do that. 164 However, thereafter LF agreed that at the first trial, he had given evidence that he gave LGF some vodka at her 13th birthday party at Kenneth Road as a birthday present, as he was tired of her asking for it. When asked to explain the apparent inconsistency in his evidence, LF said that this was vodka the accused had given him. LF said he didn’t drink and LGF knew he would not drink it ‘because she knows I hated alcohol’.85 He thought the accused was at that party and recalled someone else had the bottle before he (LF) gave it to LGF. He reluctantly agreed with the proposition that he had falsely blamed the accused for something he had done.86 165 In cross-examination, a proposition was put to LGF that her mother had given her Vodka Cruisers to drink in 2020. LGF initially agreed that she had but said this was when she was 13. When it was pointed out to her that she was 12 for most of 2020, she said that she remembered drinking at 13. She said, ‘I never drank or smoked at 12, I was a normal kid at 12’.87 166 LGF agreed that she had asked her mother if alcohol could be served at her 13th birthday and that she got upset when her mother would not allow this.88 She then acknowledged that she had been drinking alcohol prior to her 13th birthday.89 She was asked again if her mother had supplied her with alcohol in 2020, specifically Vodka Cruisers, and said she did not want to say yes, as she was not 100% sure.90 167 KW denied supplying LGF with alcohol during 2020. She had no recollection of buying her Vodka Cruisers during 2020, nor of a party held at Kenneth Road to celebrate LGF’s 13th birthday.91 She also gave evidence that on one occasion, when LGF was 12, she found an empty bottle of either expensive rum or bourbon hidden 84 T 131.31-35. 85 T 133.23-24. 86 T 134.4-135.5. 87 MFI P19 at T 171.17-18. 88 KW did not remember this party. 89 MFI P19 at T 171.19-35. 90 MFI P19 at T 171.36-172.3. 91 T 110.7-112.30. -- 27 of 127 -- [2024] SADC 107 26 in a bag in LGF’s room. She did not speak to LGF about this. She asked LF if he knew where it had come from and he said he did not.92 Other Drug Use - LGF 168 The accused was not the first (or only) person to give LGF cannabis. 169 In re-examination, LGF said that LF introduced her to cannabis. LF was the first person with whom she had smoked cannabis and she had learned to smoke it both from watching him and the internet.93 170 LGF agreed in cross-examination that she had been taking cannabis throughout 2020. She used a bong to smoke it and agreed that at some stage during 2020 she may have had a bong hidden in her room. She said friends would come over to Kenneth Road with bongs, as would the accused.94 Exhibit D12 is a photograph of LGF with a bong that she sent to her ‘best friends’ list via Snapchat.95 171 LGF denied smoking cannabis with friends at Kenneth Road and said she would go to friends’ houses to do that. She gave the following evidence:96 Q. So if you were smoking cannabis at your house in 2020 who were you smoking it with. A. [JLF]. Q. Would you sometimes have a bong by yourself. A. I don’t think so, I wasn’t able to get it so it was just when [JLF] was over and he would give me weed. 172 LGF agreed that she had posted multiple photographs of herself on social media smoking cannabis, including a photograph tendered as Exhibit D13, which depicted her smoking cannabis from her bong. She said the photograph was taken in her bedroom at the ‘new house’.97 The accused did not supply her with that cannabis, nor was he with her when she smoked it.98 173 In cross-examination, LGF agreed that in early 2021, she took a bong to school in her backpack. When asked to hand it to staff, she refused.99 92 T 77.2-30; T 78.14-20. 93 MFI P19 at T 214.23-36. 94 MFI P19 at T 160.33-35; T 165.21-24; T 166.21-36. 95 Noting there was no evidence as to when this image was taken or when it was sent by her to others. 96 MFI P19 at T 167.7-12. 97 It was an Agreed Fact that Kenneth Road was the family’s primary residence until 14 March 2021. As such, it is implicit from this evidence that LGF was saying this photograph was taken some time after 14 March 2021 and therefore after the alleged offending. 98 MFI P19 at T 168.13-20, noting there was no evidence as to precisely when the photograph was taken. 99 MFI P19 at T 169.25-170.10. -- 28 of 127 -- [2024] SADC 107 27 174 LGF initially denied that she had used drugs other than cannabis and specifically denied having ever consumed ‘magic mushrooms’.100 She did recall going for a bush walk with the accused and said that if they saw any ‘shrooms’, the accused might pick them up.101 175 LGF then acknowledged that there was an occasion when she and one of her friends had taken some ‘shrooms’ that belonged to her friend’s father and had consumed ‘a capsule’ each. She took a photograph of herself which the caption, ‘I wanna take another’ and sent that photograph to the accused.102 She said the only other time she had consumed a ‘shroom’ was at Kenneth Road with the accused, when he had taken them, and she had consumed ‘one little dried up mushroom’, which had not had any effect on her.103 She denied using LSD during 2020.104 176 LGF agreed that after she ceased having any contact with the accused,105 she made a TikTok which included a list of ‘things I’m starting to hate’. The list included ‘being sober’ and ‘having to be st*ned to do stuff’. She agreed that although the accused was not supplying her with either alcohol or cannabis at this time, she was still able to get and consume those substances.106 Drug Use by Others in Family 177 Both KW and LF used cannabis at Kenneth Road. 178 KW gave evidence that she had struggled for a long time with a drug addiction and acknowledged that she was a daily user of cannabis. She said she had used methylamphetamine in the past but denied using it when living at Kenneth Road, or at the other houses the family had lived at.107 LGF knew her mother used a pipe to smoke cannabis and had seen her use it a couple of times.108 179 KW acknowledged that she had tried to grow cannabis at Kenneth Road but said she had only one small plant which had died. She denied a proposition put to her that she encouraged her children to smoke cannabis.109 180 Exhibit D24 is a USB containing a short video which shows LGF and KW sitting outside at a table. KW is going through LGF’s school bag. She can be seen to pull out some cannabis, show it to LGF and then laugh hysterically. KW gave 100 MFI P19 at T 161.1-8. 101 MFI P19 at T 161.19-22. 102 MFI P19 at T 163.1-164.29; Exhibit D11. 103 MFI P19 at T 164.34-165.11. 104 MFI P19 at T 165.12-20. 105 Exhibit D17. The precise date of this Tik Tok was not in evidence, however in re-examination, LGF said she had created this around four to six months ago; MFI P19 at T 216.21-24. 106 MFI P19 at T 207.7-208.31. 107 T 93.33-94.13. 108 MFI P19 at T 157.33-158.6. 109 T 94.32-95.23. -- 29 of 127 -- [2024] SADC 107 28 evidence that the video was taken some time between about March and May 2021, when they were staying at a house with her then partner, Keith.110 181 In cross-examination, KW said it was possible that she had made a bong for LGF when they were staying with Keith. She agreed that a photograph depicted a bong she made and gave to LGF. 182 LGF gave evidence that she found out that LF was smoking cannabis when she was in Year 7. She said he spent a lot of time in his bedroom, smoking cannabis, playing games and with his girlfriend.111 She also described an occasion when LF and the accused took acid (‘little paper squares’) in LF’s bedroom.112 183 LF agreed that he was smoking cannabis during 2019 and 2020. He said he started smoking it at friends’ houses or at the park, but eventually started smoking at home in his room. He said did not smoke it anywhere else for three reasons - he did not want to get caught by his mum, he was trying to protect LGF and he did not want ZF to know, as she despised it.113 184 LF gave evidence that he and the accused would smoke cannabis together in his bedroom at Kenneth Road. He gave the following evidence:114 Q. How often would you smoke together in your room with [JLF], smoke cannabis that is. A. If we both had, like, our stuff, like he brought his stuff as well, then we'd just do it in my room, or if I wasn't there or something, my room was just the room used for it because it's where the stuff belongs so no-one else can see it. Q. By 'stuff', what do you mean by that. A. Like just the bongs and, yeah, just the bongs and stuff. Q. Did there come a time when you noticed that [JLF] had stopped smoking cannabis with you in your room. A. He hadn't like stopped, but he started bringing it, he started taking it elsewhere in the house, where I'd always tried my best to make sure [LGF] doesn't see and stuff. So when I noticed that, it was frustrating because I'd spent all this effort to make sure that [LGF] doesn't see anything and then I realised he was doing it in her room and it was just really frustrating. Q. How do you know that [JLF] was doing it in her room. A. Because he was taking all of his stuff in there and it was also smelling in there and it was just, everything proved, just, the evidence was there that shows it. 110 T 96.24-35. 111 MFI P19 at T 158.7-21. 112 MFI P19 at T 158.31-33. 113 T 120.31-121.21. 114 T 121.26-122.20. -- 30 of 127 -- [2024] SADC 107 29 Q. Where was [LGF] during these times when he'd taken his stuff into her room. A. Sometimes she'd be there and sometimes she'd just be at her friend's house or whatever. It was kind of like a fifty-fifty. Q. During this period of time, did you actually ever see your brother [JLF] give [LGF] cannabis. A. No. Q. During this period of time at Kenneth Road, did you ever see [LGF] affected by cannabis. A. Not that I'm aware of, no. 185 LF acknowledged that after his birthday in 2020 he had used other drugs. He did acid with the accused and did MDMA twice with his ex-girlfriend. 186 In cross-examination, LF agreed that if the accused had asked and he was able to, he would supply the accused with cannabis, acid, MDMA and magic mushrooms in exchange for money.115 Accused’s Sleeping Arrangements at Kenneth Road Complainant’s Evidence 187 LGF alleged the abuse occurred over a period of about 8 to 10 months and that it occurred when the accused came to visit on the weekend and slept over at Kenneth Road.116 She agreed that the accused worked six days a week and would visit Kenneth Road on a Saturday afternoon, as Sunday was his only day off.117 188 LGF told Officer Kittel that the accused did not have his own room at Kenneth Road, so he would sleep in her bed. She thought this was a little weird, but still normal, given he was her sibling.118 Her mother was aware of this, as one time she had knocked on the door and entered the room when the accused was in her bed.119 189 LGF said the accused usually slept in her bedroom when he came to stay but agreed in cross-examination that he had slept on a mattress in the lounge room a couple of times. When asked if her mother threw that mattress out, LGF said ‘I guess so’.120 She agreed, somewhat tentatively, with a proposition put to her that after the mattress was thrown out, the accused started to bring a swag over and then slept on the swag in the lounge room.121 115 T 147.20-148.3. 116 First LGF interview at p 37, lines 1755-1765. 117 MFI P19 at T 152.22-29. 118 First LGF interview at p 7, lines 310-311. 119 First LGF interview at pp 38-39, lines 1847-1861. 120 MFI P19 at T 192.7-24. 121 MFI P19 at T 193.7-15. -- 31 of 127 -- [2024] SADC 107 30 190 In cross-examination, LGF agreed that the accused would go to bed pretty early, in the lounge room, at around 8:00 or 9:00pm as he was tired from work but said, sometimes he would stay up with LF.122 191 It was suggested to LGF in cross-examination that sometimes the family played cards in the kitchen on a Saturday night and made a lot of noise and that as a result, the accused had moved his swag from the lounge room into LGF’s bedroom to get some sleep. LGF recalled an occasion when the family played cards in the dining room but she could not recall the accused sleeping in the lounge room at that time. She said that the dining room was immediately adjacent to her bedroom wall. She denied that it was a regular thing for her mum to stay up late drinking, taking drugs or playing cards123 192 LGF gave evidence that she used to watch movies or Netflix on her laptop in her bedroom and that sometimes the accused would come into her bedroom, get on her bed and watch these with her. She denied that he had done so at her insistence and said she was happy to watch things by herself.124 She said:125 A. Yeah, he would open the door and ask if he could come watch and then jump into bed. He’d rather hang out with my older brother [LF] until this stuff started happening and then he chose to hang out with me so it could happen more. 193 LGF agreed with a proposition that the accused would sometimes fall asleep when watching a movie with her. As to whether he would then wake up in her bed with her, the next morning, as he had fallen asleep watching the movie next to her, she said, ‘Yeah, most of the time I think.’ KW’s Evidence 194 KW gave evidence that the accused sometimes worked six days a week during the period he would come to stay at Kenneth Road. She said he usually stayed over on a Saturday night, but that he may also stay on a Sunday if it was a public holiday on the Monday. 195 She denied a proposition put to her that the accused typically went to sleep before the other members of the house when he stayed over. She agreed there were times that the accused stayed over and she would be playing cards but denied that he was trying to sleep at the time.126 196 KW gave evidence that when the accused came to stay at Kenneth Road he would sleep on a mattress or his swag in the lounge room or in LGF’s room. The mattress was a single mattress which was kept behind the lounge in the lounge 122 MFI P19 at T 193.16-24. 123 MFI P19 at T 193.33-196.11. 124 MFI P19 at T 196.12-197.6. 125 MFI P19 at T 197.9-13. 126 T 108.32-109.26. -- 32 of 127 -- [2024] SADC 107 31 room if it was not being used. If there were other kids sleeping over that were using that mattress, then the accused might sleep on his swag.127 197 KW gave evidence that she threw that single mattress out when she was leaving Kenneth Road in March.128 When it was suggested to her in cross- examination that the mattress was thrown out before then, as it got wet, she disagreed and said she had no memory of that mattress getting wet.129 198 KW agreed that in the first trial she had given evidence about that same mattress and that she had said that it got wet and she had to throw it out. She agreed that she had given the following evidence at the first trial as to when she threw that mattress out:130 So I moved out in March. I reckon I threw it out in, like six months before moving out because I remember – I think – I even think it was still there at the front of my property when I was leaving the property because I couldn’t fit it into the trailer to take away, so it was there when I left the property but I reckon it was out the front of the property for six months, leaning up against, like, the letterbox in the fence area sort of, to be in the hard rubbish. So March minus six months. 199 KW agreed with a proposition put to her that it was only after that mattress was thrown out, that the accused started to sleep on his swag in the lounge room. She also agreed with a proposition that at some stage after that, the accused would bring his swag into LGF’s room and sleep there.131 200 KW gave evidence that when the accused slept in LGF’s room, he slept on his swag or on the double mattress which was used by LGF as her bed, as her bed had broken.132 She was aware of the accused sleeping in LGF’s room on about ten occasions and had seen him sleeping in LGF’s room, on her mattress, a couple of times.133 As to how she came to see that, she gave the following evidence:134 A. One particular time I walked in there to offer some food, or a game of cards and I walked in and it was a very bizarre scenario, I just saw them both laying there and I asked them if they wanted anything, they said 'No', and then I, I walked back out. Because the door was closed and then I closed, so I re, I closed the door when I walked out and I just stood on the other side of that door saying 'What have I just walked into?', like 'What did I just see?', and I had this argument with myself, like 'Is there something happening here, like, that I should be aware of?', and I was like 'Nah, don't be silly', you know 'That can't be what I'm seeing' and I didn't trust my instincts and I walked away and resumed playing cards with my daughter and making lunch but, yeah. 127 T 73.1-7. 128 It was an Agreed Fact that Kenneth Road was the primary residence of LGF, KW and LF until 14 March 2021. 129 T 87.35-88.31. 130 T 89.8-17. 131 T 90.12-22. 132 T 68.27-70.8; T 70.20-37. 133 T 70.10-20; T 70.38-71.4. 134 T 71.6-27. -- 33 of 127 -- [2024] SADC 107 32 Q. What time of day was that. A. It was during the day, it was like 1 o'clock in the afternoon. Q. When you say you saw them lying there, can you describe what positions they were in. A. It was like spooning. Like [LGF] was in front and [JLF] was behind and he had his arm around her 201 KW said they had the blanket over them. This was the only time she saw them together in that bed in that particular position.135 LF’s Evidence 202 LF gave evidence that when the family lived at Kenneth Road, at first, the accused did not really come around but ‘it might have been after like a year he started coming round like every fortnight, kind of thing’.136 At first the accused slept in the lounge room, either on a spare mattress or his swag. This then changed and he saw the accused sleeping on his swag on the floor in the corner of LGF’s bedroom. He assumed that the accused moved there so that he was not in the lounge room to hear their mother being loud in the mornings when she made her coffee.137 203 LF gave evidence in cross-examination that he remembered the mattress being thrown out when they were leaving Kenneth Road.138 It was suggested to LF that the reason the accused stopped sleeping in the lounge room and went to sleep in LGF’s room was because the mattress was no longer available for use. LF gave the following evidence:139 A. That wouldn't surprise me as much, but that doesn't really make sense why he'd sleep a swag on the floor when it can just be on the floor in the lounge room. Q. Was there carpet in [LGF]’s bedroom. A. Very hard carpet, but there was a soft rug in the lounge room. There was also the couches. There was also my couch. 204 LF gave evidence that he saw the accused sleeping in LGF’s bed a few times when LGF was either 11 or 12. 140 He thought that at that time, LGF was sleeping over at a friend’s house and the accused had simply taken her free bed. 205 LF never saw LGF and the accused sleeping together in her bed. He did see them lying in LGF’s bed together in the morning two or three times, when he 135 T 71.35-72.9. 136 T 118.19-21. 137 T 118.22-119.25. 138 T 144.25-145.19. 139 T 145.30-36. 140 T 118.29-119.34. -- 34 of 127 -- [2024] SADC 107 33 walked past LGF’s bedroom. He said, ‘it would be just like cuddling kind of thing and him just on his phone or whatever’.141 JMT’s Evidence 206 JMT gave evidence that she saw the accused a lot when she visited LGF at Kenneth Road on the weekends. She had seen the accused sleeping on a mattress in the lounge room but did not see him sleeping anywhere else at Kenneth Road.142 Alleged Offending in LGF’s Bedroom 207 At the start of the first LGF interview, LGF told Officer Kittel that the accused had touched her, inappropriately, multiple times and that it had started when he was sleeping in her bed with her at Kenneth Road. When asked what had happened when the accused touched her, LGF said:143 A Um, I’ve woken up with his hand in my bra once. Q Yep. A And he’s tried fingering me once. Q Hmm mm. A And he made me touch him there. 208 LGF was unable to remember the first time the accused had abused her but she said that it had started when she was aged 12 and in Year 7 at high school.144 When asked by Officer Kittel if she could remember the last time he had abused her, she said ‘not really’, and added, ‘I only remember a couple of times.’145 209 LGF said that when the accused did these things to her, she was really scared, because she thought she could trust him and she did not want to ruin the family.146 210 LGF said that when the accused was in her bed with her, he would cuddle her, massage and grab her ‘arse’, put his hand up her shorts and finger her.147 When the accused was fingering her, she would just lay there and pretend to be asleep. He did not talk to her, but ‘was breathing a lot heavier’.148 She would then roll over and pretend to wake up, ‘hoping if he thought I was awake he wouldn’t do it’.149 She said that sometimes she would wake up and his hand would be in her bra.150 141 T 120.1-22. 142 T 165.34-166.20. 143 First LGF interview at pp 6 -7, lines 280-288. 144 First LGF interview at pp 32-33, lines 1528-1584. 145 First LGF interview at p 7, lines 295 and 299. 146 First LGF interview at p 16, lines 756-772. 147 First LGF interview at p 7, lines 315-332. 148 First LGF interview at p 8, line 340; p 16, lines 756-760. 149 First LGF interview at p 8, lines 352-353. 150 First LGF interview at p 19, line 906. Although this evidence was given in response to a question directed about a specific occasion of offending in the lounge room, when considered as a whole, and -- 35 of 127 -- [2024] SADC 107 34 211 LGF was wearing clothes when the accused slept in her bed with her, as she ‘wasn’t gonna sleep naked with him’.151 She would usually wear underwear, shorts and a bra, although sometimes she would not wear a bra and instead wore a top with no bra underneath.152 212 LGF said the accused fingered her ‘every night that he was like asleep in my bed with me’.153 She estimated this had happened in her bedroom, between seven to 14 times and he had done it a lot.154 When asked to describe how the accused would finger her, LGF gave the following evidence:155 A Um, he’d rub like, my vagina when my shorts were on. Q Hmm mm. A And obviously when my shorts were on he couldn’t properly do it. Q Yep. A But he still like, I could feel him touching between my legs trying to. Q Hmm mm. A And some, most of the time he’d just put it like slide his hands through my shorts. Q Okay. A Like, under them. 213 LGF said the accused would also massage her tits. He would slide his hand into her bra, keep his hand there and then slowly grab and release, being a similar movement to that he did when massaging her arse. When this happened, they would usually be spooning or laying on their backs. 156 214 LGF explained that this would always occur late at night and that the next morning, the accused would act as if nothing had happened. They would both eat their breakfast and everything was completely normal. This was very confusing for her.157 She said:158 I wasn’t sure if I was dreaming but like, I think back on it now and I definitely know I wasn’t dreaming. having regard to the language used by her, I am satisfied that when she gave this evidence, LGF was referring to the abuse she remembered as having occurred both in her bedroom and in the lounge room. 151 First LGF interview at p 37, line 1771. 152 First LGF interview at pp 49-50, lines 2384-2400. 153 First LGF interview at p 8, line 359. 154 First LGF interview at p 48, lines 2305, 2309. 155 First LGF interview at p 49, lines 2362-2378. 156 First LGF interview at p 40, lines 1932-1946. 157 First LGF interview at p 40, line 1909 and p 42, lines 2019-2037. 158 First LGF interview at p 42, lines 2041-2042. -- 36 of 127 -- [2024] SADC 107 35 215 Officer Kittel asked LGF if there was a routine or typical sequence of events that had happened. She said:159 … I guess he did have like a routine cause he always um, would start off by slowly massaging my arse … and sometimes he’d like slide his hand between my legs and finger me … so I guess that was like routine. 216 LGF was unable to recall the details of any specific occasion when something like this had happened in her bedroom. She said, ‘he just always was fingering me, massaging me or grabbing my tits and that happened every time he slept with me’. She said, ‘So, they’re all basically the same.’160 217 LGF said the abuse would happen when they were spooning. She said:161 A And sometimes he’d push his legs up. Cause that, that made me more accessible to him. Q Oh okay. A Not like legs up in the air but legs pushing my legs so they were bent instead of straight. Q Yep okay, what, what do you mean more accessible? A So he could finger me. Q Hmm mm. Alright so um, we’ll talk, just talk about that in, in a little, little bit um, so he would cuddle you, just tell me um, what happened when he would be cuddling you? How, how would he be cuddling you? A Most the time he, he all the time he spooned me. Q Okay yep alright so we’re just talking about this just if you can remember just think back to this one time in the lounge room okay and what happened there um, so he came in in the morning and um, he was spooning you and then cuddling, cuddling you and you said he started massaging. So tell me about him massaging you? A He’d like just slowly grab my legs. Q Yep I think I see your hand there sorry, can (inaudible) A He just like grab my (inaudible) slowly and release and he just kept doing it. Q Oh okay and what was he grabbing? A My arse. Q Yep. And what happened then? 159 First LGF interview at p 41, lines 1984-1993. 160 First LGF interview at p 31, lines 1497-1508. 161 First LGF interview at pp 12-13, lines 551-599. At line 579, the transcript uses the word ‘inaudible’. That word can be heard in the audiovisual recording as ‘arse’. -- 37 of 127 -- [2024] SADC 107 36 A He just did that for a while. Q Did that for while yep. A (inaudible) Q Sorry I can’t hear A He moved his um, hand and is closer to me. Q Yep tell me more about that exactly. A He just slow, he just slowly like moved his hand to my area. 218 She explained that sometimes he would go under her shorts and undies, and sometimes he would just try to do it through her shorts.162 219 Later in the first LGF interview, Officer Kittel asked LGF what happened when the accused fingered her. She said, ‘I just sat there and he just did that’.163 220 When asked how she felt when this had first happened, LGF said that she was scared; she said, ‘I didn’t want it happening to me but I was scared if I said anything he would hurt me’.164 She said the accused was a very strong person. She did not know how he would hurt her, but explained, ‘I’m an over thinker so I just worried.’165 221 LGF did recall a specific occasion in her bedroom when the accused was in her bed, next to her and he made her touch his penis. She would have been aged 12 at the time.166 This incident had started with the accused fingering her and massaging her arse and tits. He started breathing heavy, then grabbed her wrist and moved it, so her hand was resting on top of his penis. She said, ‘That’s when I rolled over so my hand could move’.167 222 Either he was not wearing shorts ‘or his dick was out of his shorts or something’. It was dark, so she did not really know if his shorts were on, but she did feel his naked penis.168 223 When asked to describe how this had happened, LGF said:169 A We were just spooning. Q Spooning yep, so he was spooning, yep. 162 First LGF interview at p 14, lines 651-655. 163 First LGF interview at p 15, line 704. 164 First LGF interview at p 50, lines 2410-2415. 165 First LGF interview at p 50, line 2427. 166 First LGF interview at p 36, lines 1735-1745. 167 First LGF interview at p 32, lines 1521-1526. 168 First LGF interview at pp 33-34, lines 1600-1624. 169 First LGF interview at pp 34-35, lines 1642-1664. -- 38 of 127 -- [2024] SADC 107 37 A Or no, just no. it’s really hard to remember. Q That’s okay, that’s fine just the bits that you do remember so um, he’s grabbed your wrist and then what’s the very next thing that happened? A He’s placed it on his dick. Q He placed it on his dick okay, and what body position was he in? A He was laying on his stomach so I was going, that’s why I was gonna say spooning but then I realised that we both would’ve been laying on our backs. Q Yep. A Cause that would’ve been the easiest way for him to grab my wrist. Q Okay yep. A So that how I’m pretty sure he did, did it. 224 LGF said that she was pretty sure the accused had wanted her to ‘jerk him off’ as he had moved her wrist and made her fingers wrap around, but she then let go, and rolled over.170 225 LGF said that she was not pressing on the accused’s penis or ‘completely touching it’ and therefore could not say if it was hard or soft. She said, ‘it was just there’.171 She did not see the accused’s penis because their bodies were under the blanket and it was dark in the room.172 226 During her evidence-in-chief, LGF said that her hand only ‘slightly’ touched the accused’s penis and that it was ‘slightly hard’.173 227 As to whether she had consumed alcohol or drugs before this occasion, LGF said she could have consumed cannabis but she was not 100% sure.174 Alleged Offending in the Lounge Room 228 In the first LGF interview, LGF described a specific occasion when the accused had abused her one morning in the lounge room at Kenneth Road.175 She said she would have been 12 when this occurred. She had only recently turned 13. She was unsure how long before her 13th birthday it had occurred but said ‘it probably would’ve been weeks or months’ before.176 229 LGF told Officer Kittel that the night before this happened, she made a bed up on the lounge room floor and slept there instead of in her bed, as she had a 170 First LGF interview at pp 35-36, lines 1684-1727. 171 First LGF interview at p 47, lines 2278-2286. 172 First LGF interview at pp 48-49, lines 2338-2353. 173 MFI P19 at T 120.10-11. 174 MFI P19 at T 120.18-20. 175 First LGF interview at p 36, lines 1729-1733. 176 First LGF interview at p 22, lines 1032 – 1066. -- 39 of 127 -- [2024] SADC 107 38 feeling the accused would ‘do it again’ and she did not want to sleep with him.177 She said:178 A And then in the morning he came and laid down with me and Mum was mostly in her room or the kitchen. Q Yep. A So she walked past sometimes. Q Hmm mm. A But like we were under a blanket so she didn’t see and one time she walked past and his fingers were in me. Q Okay. Has it happened in the lounge room one time or more than one time. A Only once. 230 She did not think that she had consumed any alcohol or drugs before this as she had had the presence of mind to make up the bed in the lounge room, to avoid having to sleep with the accused in her bedroom, because every time he slept over in her bed, he would touch her.179 231 LGF told Officer Kittel that she was sleeping on a bunch of blankets, pillows and a swag. She may have had a sleeping bag.180 When asked to explain what the accused had done when he came into the lounge room, she said, ‘he normally just laid down’ and ‘he probably just cuddled until Mum, he made sure mum was gone maybe’.181 As to what had happened after he lay down next to her, she said:182 A He cuddled me for a bit and then he started (inaudible) to massage and after that, finger. Q Okay. and what happened after finger? A Hmm mum walked past and he’s like still doing it at the time when she walked past. Q Hmm mm. A But then I tried like rolling over. Q Yeah. A So he couldn’t. 177 First LGF interview at p 9, lines 394-403. 178 First LGF interview at p 9, lines 407-421. 179 MFI P19 at T 119.36-120.14. 180 First LGF interview at p 23, lines 1080-1090. 181 First LGF interview at p 10, lines 433-437. 182 First LGF interview at p 10, lines 456-470. -- 40 of 127 -- [2024] SADC 107 39 232 The accused was under the blanket, lying behind her, spooning her, so they were each facing the same way.183 233 LGF could not recall whether her shorts were on or if the accused had his hand under or through her shorts. She said he rubbed her vagina, put his fingers inside her vagina and moved his fingers, fast and slow, inside her vagina.184 She said, ‘I just sat there and he did that’.185 When asked how she knew his fingers were inside of her, she said, ‘because I could feel it’.186 234 When asked what the accused was wearing on this occasion she said, ‘Usually in his boxers … or like jocks’, with no top.187 235 Officer Kittel asked LGF how the accused’s fingers had come out of her vagina. She said:188 A I don’t remember like he Q What made him stop? A Me rolling. Me starting to move. Q Ah, okay, yep, so you start to move and okay, um, and tell me just some more about the time in the lounge room when mum walked past? A He stopped moving his fingers but they were still in me. Q Okay, so what do you remember about Mum walking past? A She was just doing her own thing walking to the kitchen. Q Hmm mm, yep. Did she say anything? A No. Q No. So she walked past walking to the kitchen and what did [JLF] do? A Stopped moving his fingers. Q Yep, stopped moving his fingers. And what did, what did you do? A I just laid there. Q Yep, okay. and what’s the very next thing that happened then [LGF]? A Don’t remember. 183 First LGF interview at p 11, lines 510-529, p 17, lines 781-791. 184 First LGF interview at pp 15-16, lines 679-687 and lines 709-750. 185 First LGF interview at p 15, line 704. 186 First LGF interview at p 24, line 1146. 187 First LGF interview at pp 18-19, lines 869-877. 188 First LGF interview at p 20, lines 926 – 955. -- 41 of 127 -- [2024] SADC 107 40 236 LGF said that a short time later she got up and went out to the backyard with her mum. She could remember the accused coming out to her and her mum with his breakfast.189 When asked if anything else had happened on this occasion, LGF said that the accused had massaged her boobs. She said, ‘[h]e just put his hand on my bra and squeezed’.190 237 During cross-examination, LGF was adamant that this offending had occurred when she and the accused were lying down in the lounge room. As to why she had told Officer Kittel that when the accused had fingered her, ‘I just sat there and he did that to me’, she said:191 A. I laid there, sorry, it was one word off. I did tell them that I was laying down in the bed that I made in the lounge room, I was laying down the whole time. 238 She disagreed that the only time the accused ever slept with her in the lounge room was when they were watching television together and specifically a show called ‘Big Mouth’.192 239 KW gave evidence that she had seen LGF and the accused lying on a mattress in the lounge room once or twice in the morning when she woke up. She said they were watching something on TV or Netflix and she thought nothing of it.193 Alleged Offending in the Tent Complainant’s Evidence 240 LGF was asked to return to participate in a second prescribed interview to give details about alleged offending in a tent. This was something she had remembered when driving home after participating in the first LGF interview.194 241 LGF was clearly a reluctant participant in the second LGF interview. When asked what had happened in the tent, she said:195 I don’t know I just woke up it’s all the same stuff just getting touched, literally everything that’s the same thing. 242 She described it as being ‘dark silent’ in the tent. She said the accused had cuddled and massaged her ‘like he always did’ and that he ‘probably worked his way to (her) vagina’, as that happened most of the time.196 189 First LGF interview at p 24, lines 1161-1162. 190 First LGF interview at p 21, line 991. 191 MFI P19 at T 189.25-27. 192 MFI P19 at T 190.2-191.38. 193 T 73.33-74.1. 194 MFI P19 at T 125.5-29. 195 Second LGF interview at p 6, lines 186-187. 196 Second LGF interview at p 5, lines 205-226. -- 42 of 127 -- [2024] SADC 107 41 243 During her evidence-in-chief, LGF gave evidence that the tent had been set up in the carport.197 She identified the tent as being that depicted in a screenshot of a photograph that she had taken, using Snapchat on her phone, on 18 April 2020.198 244 LGF gave evidence that she had the tent set up for about five days, but she was not sure if she set it up on the day she took the photograph, or sometime before then. She set the tent up because she was a kid and wanted to go camping. She thought she had slept in the tent on the night of Saturday 18 April 2020 because she took the picture to show her friend. In response to a question by the trial judge, she said that she had only set the tent up that one time.199 245 By reference to this photograph, LGF gave evidence that the occasion when the accused touched her inappropriately in the tent had occurred sometime between 15 and 20 April 2020.200 She was not 100% sure whether she had consumed alcohol or cannabis that night.201 246 LGF was asked in cross-examination whether the first time the accused had molested her was in the tent. She initially said she was not 100% sure and that she thought the first time had been in her bed. She then confirmed that when the offending happened in the tent she had thought ‘here we go again’ – meaning the offending must have started before then.202 KW’s Evidence 247 KW gave evidence that she had seen a tent set up at Kenneth Road more than once. As to where it was usually set up, she said:203 A. Well, sometimes it would be, if it's nice weather, it would be out on the grass but if it was wintery, then it would be under the carport and this time it was under the carport. 248 KW gave evidence that the tent was set up three or four times per year, for birthdays or during the holidays. The tent may be up for a week or two in the winter, or for three or four weeks during the summertime. LGF would sleep in the tent with the animals and would take her mattress out there. During the three years they lived at Kenneth Road, she had seen the tent up maybe 12 times. She had never seen LF or the accused sleeping in the tent.204 249 In April 2020, KW and the accused exchanged a series of messages. Those messages read:205 197 MFI P19 at T 120.12-26; Exhibit P6. 198 MFI P19 at T 121.14-123.19. 199 MFI P19 at T 123.21-124.14. 200 MFI P19 at T 124.15-125.4. 201 MFI P19 at T 125.30-33. 202 MFI P19 at T 205.12-28. 203 T 74.7-10. 204 T 75.15-76.23. 205 Exhibit D23. -- 43 of 127 -- [2024] SADC 107 42 Saturday 11 April 2020 [Accused] Leaving now. [KW] See you soon (emoji kiss) Monday 13 April 2020 [KW] Hey [JLF] I think I just found your laptop here Saturday 18 April 2020 [KW] Good morning beautiful, I can bring your laptop tomorrow and catch up. [LGF] and I are going to Victor harbor areas for Cruz. She’s still sleeping in her new home so she doesn’t know I’m taking her out. 250 Immediately thereunder, KW sent the accused a photograph of the tent set up under the carport at Kenneth Road. 251 It was suggested to KW in cross-examination that she sent the accused that photograph as he was not at Kenneth Road during the period the tent was set up at that time. She said, ‘I don’t know about that’.206 She agreed that there would be no need for her to return the laptop to the accused on Sunday 19 April if he had stayed at Kenneth Road during the weekend of Saturday 18 April 2020. 252 In cross-examination, KW agreed that the tent had been set up in previous years and that it was not uncommon, in the warmer months, for people to sleep outside at Kenneth Road, either on the trampoline, in a swag or in a tent.207 LF’s Evidence 253 LF gave evidence that he had seen a blue tent set up more than once in the yard at Kenneth Road. 254 He said that he had seen LGF and the accused in the tent together, when it was set up under the carport, watching YouTube or a movie or something. He thought this would have been one morning when he went outside to go to the toilet after waking up.208 255 During cross-examination, LF maintained that he had a memory of seeing the tent set up during 2020 for ‘like a two-week period or something like that’.209 He said he saw LGF and the accused in the tent together, ‘cuddling and watching something. Or just on the phone or something’.210 He said this could have been 206 T 91.13. 207 T 93.1-16. 208 T 128.24-130.22. 209 T 149.1-2. 210 T 149.4-8. -- 44 of 127 -- [2024] SADC 107 43 around Christmas, when there was six weeks of holiday, but there was a chance it was during the two-week holidays in the middle of the year.211 256 In cross-examination, LF agreed that at the first trial he gave evidence that he had seen both the accused and LGF sleeping in the tent, but at different times; that is, he had not seen them sleeping in the tent together.212 He had made these observations over Christmas, when the accused had stayed over for four to five days in a row.213 257 LF agreed he had not given evidence at the first trial, or previously said to anyone, that he had seen LGF and the accused in the tent together either cuddling or watching YouTube.214 JMT’s Evidence 258 JMT gave evidence that she saw a tent set up at Kenneth Road more than once and estimated she had seen the tent up, in the backyard, every couple of weeks. She described the tent as being set up either on the grass or in the carport. She never saw anyone sleep in the tent.215 She could not say how many times she had seen the tent up during 2020.216 Truth or Dare 259 During the first LGF interview, LGF told Officer Kittel that the accused had talked to her about sexual things when they were hanging out together. She said they were playing games like ‘truth or dare’, or ‘would you rather’. Sometimes he would ask her something sexual like, ‘what is your favourite sex position’, if she ‘had kinks’ or whether she cared if a penis was big or long. There was an occasion when he had dared her to kiss her friend Sadie, but she had not done that.217 She did not go into any further detail. 260 LGF gave evidence-in-chief that on the occasion when she, the accused and her friend Sadie had drunk the UDL cans together,218 they had played a game of Truth or Dare on the oval.219 She could not really remember what had happened after this. However, she remembered waking up in her bed, with the accused’s hand in her bra. She, the accused and Sadie were all lying sideways across the bed, with their feet hanging off the bed. The accused was lying where the pillows were, she was lying in the middle next to him, and Sadie was lying on her other side, across the foot of the bed. She believed she was lying on her side, facing Sadie.220 211 T 154.22-35. 212 T 138.38-139.33. 213 T 155.15-33. 214 T 149.9-150.24; T 152.18-20. 215 T 172.7-25; T 174.30-175.2. 216 T 175.3-4. 217 First LGF interview at pp 50-51, lines 2433-2483. 218 See earlier discussion at [150] herein. 219 MFI P19 at T 125.34-126.13. 220 MFI P19 at T 127.20-129.2. -- 45 of 127 -- [2024] SADC 107 44 261 LGF gave evidence that the accused’s hand was under her bra and he was ‘just grabbing, massaging my breast’. When she was reminded that she had not told Officer Kittel about this, she gave the following evidence:221 A. I think I told her. I don’t remember all the words I’ve said in all the statements, but I remember it happening, so I would have tried to tell her. 262 LGF gave evidence-in-chief that this offending was the only offending that she could recall that had occurred after the accused had given her alcohol.222 263 LGF was not prepared to tell the police Sadie’s surname. It was suggested to her in cross-examination that she had not done so, as Sadie had never slept that night in her bed and would not have supported her evidence as to what happened that night. LGF denied this. She explained that she simply did not want to bring Sadie into this. She was not close with her and did not want her to know everything.223 Alleged Offending at JMT’s House - New Years Eve 2020 Complainant’s Evidence 264 During cross-examination, LGF was asked various questions about why she had run away from home on New Years Eve 2020 and what had happened thereafter. She agreed with a proposition put to her that she had sent a photograph of herself to the accused during the afternoon that day because she wanted him to come over to JMT’s house as she was really upset and wanted to talk to him.224 He then came to spend time with her there as she was upset. They had talked for a very long period of time.225 265 When it was suggested to her that JMT was not there, either at that time, or at any time during that afternoon, LGF said:226 Yeah, she wasn’t, ‘cos I remember stuff happening … I remember stuff happened, so she wasn’t there, ‘cos it was in her room. 266 As to what stuff had happened, she said:227 [JLF] ended up getting into bed with me and like cuddling and massaging my arse and I think he tried to finger me and I may have got up or he left or something. 267 She was not 100% sure whether the accused had done anything to her vagina on that occasion ‘because most of my scenarios have merged together’.228 221 MFI P19 at T 129.28-30. 222 MFI P19 at T 114.31-33. 223 MFI P19 at T 202.24-203.35. 224 A copy of the photograph was tendered as Exhibit D14 and includes the text ‘I ran away’. 225 MFI P19 at T 175.2-29. 226 MFI P19 at T 175.33; T 175.35-37. 227 MFI P19 at T 176.3-5. 228 MFI P19 at T 215.14-26. -- 46 of 127 -- [2024] SADC 107 45 268 LGF was asked if she had ever previously told anyone about this incident before disclosing it, in court, during cross-examination. She said she did not think so, but that it was a memory that she had had for a while.229 As to why she had not mentioned it in her interviews with Officer Kittel or the police or to the prosecutor, LGF said, ‘There’s a lot of other stuff to be thinking about.’230 269 LGF was asked why, if the accused had previously sexually abused her, she had specifically wanted to talk to him at that time. She said:231 A I don’t know. It was new year’s. I probably asked him to come over for alcohol. I didn’t ask but I was probably thinking it because he was at a party where everyone was drinking and I was alone at my best friend’s house. Q. You were upset because you’d had a big fight with your mum. A. Yeah, I probably wanted someone to talk to and to bring over alcohol. Q. So you asked [JLF] who you say has been abusing you the whole previous year. A. Yeah, because everything was normal in the daytime. 270 LGF agreed she discussed with the accused about going to stay at her Nanna’s, as she did not want to go back home to live. She asked the accused to ask Nanna if she could come and stay with them.232 She went to stay at her Nanna’s three days later.233 KW’s Evidence 271 KW gave evidence that LGF ran away on New Years Eve 2020 because they had a fight about her wanting LGF to clean her room where there was a large collection of cans and bottles. She had threatened to take the cans and cash them all in. Thereafter, LGF was away from home for about 21 to 27 days, before returning home the day before school was meant to start.234 272 KW denied that during the fight she had either hit LGF with a lacrosse stick or had threatened to do so. She agreed that she had threatened to smash her cans.235 JMT’s Evidence 273 JMT gave evidence that she lived with her mother and stepfather. She was not at home on New Years Eve 2020, as she was at her father’s house. She knew that LGF had gone to her house that night. She gave evidence that LGF would have let herself in through the side gate and then into her unlocked bedroom which was 229 MFI P19 at T 176.11-15. 230 MFI P19 a T 177.29. 231 MFI P19 at T 178.9-20. 232 MFI P19 at T 178.21-179. 233 MFI P19 at T 179.16-180.4; Exhibit D15. 234 T 78.78.21-79.28. 235 T 105.19-106.3. -- 47 of 127 -- [2024] SADC 107 46 a refurbished shed in the backyard. She did not know how long LGF stayed there as she was not at home during that period.236 Alleged Offending at RW’s House – January 2021 274 In cross-examination, LGF was asked if the last time the accused had abused her was on New Years Eve. She said no and that the next time he abused her was at her Nanna’s house. She immediately volunteered that she had not told the detectives about this either.237 275 LGF gave evidence that she went into the accused’s room at Nanna’s house to hang out and talk to him. He was happy for her to be in there. She said:238 A. I was in his room for a little while. I was making a TikTok I remember and talking to him about normal stuff and somehow I got into bed with him and then he started massaging my arse and I got straight back out and I was like ‘Alright, goodnight, I’m going into the guest room’. Q. So you got into bed with him. A. Mm-hmm and then after like two minutes I went ‘Nah, I can’t do that’ and checked out. Q. Is that the only time it happened at nan’s. A. I think it was only that one time. It was. 276 She could not recall the details of anything else that had happened at that time but said she had always had a memory of this incident. She thought this was the last time the accused abused her.239 Fracture in Relationship with the Accused? 277 It was suggested to LGF in cross-examination when she was staying at KW’s house she had several disagreements with the accused.240 It was suggested that the first point of contention between them arose from matters relating to her Nanna and what she expected of LGF’s behaviour when she was living with her. 278 LGF acknowledged that she did not get along well with her Nanna because she was somewhat strict and would not tolerate drugs or alcohol in her house.241 279 She agreed that while on holiday in the Riverland in January 2021, she met a boy. After the holiday, she returned to Nanna’s house to stay, as her Nanna lived near this boy.242 When she asked Nanna if she could ‘hang out’ with this boy, she 236 T 170.16-171.15. 237 MFI P19 at T 204.2-8. 238 MFI P19 at T 204.17-27. 239 MFI P19 at T 204.36-205.4. 240 This is my wording, used to summarise the effect of the evidence led on this topic. 241 MFI P19 at T 180.5-15. 242 MFI P19 at T 181.23-29; T 182.10-18. -- 48 of 127 -- [2024] SADC 107 47 was not allowed to, unless Nanna met him first. LGF was not prepared to let her Nanna meet him because she did not like her.243 280 LGF agreed she talked to the accused about this and that he had told her she would need to listen to Nanna. She denied the accused had told her that she needed to abide by Nanna’s house rules.244 She denied that she was angry with the accused because he would not support her with what she had wanted to do or because he was angry about the things she was doing at Nanna’s.245 281 It was suggested to LGF that a second point of contention arose between her and the accused at this time relating to her wanting to spend time with the accused in his room, when he was tired from work and did not want her there. 282 LGF agreed that she was on school holidays when she was staying at KW’s house and the accused was working every day of the week except Sundays. She agreed he went to bed early because he had to get up early for work. She denied going into the accused’s room when he was trying to sleep and attempting to wake him up. She denied that he was ever angry with her for doing this or that he was angry with her while she was staying at Nanna’s house.246 283 She agreed that she had wanted the accused to spend time with her but denied ever asking him to take her out. She said she may have gone with him if he was going somewhere and recalled going to the beach. As to why she wanted to spend time with the accused given what he had been allegedly doing to her, she said:247 A. I think I just tried to convince myself that we still had a brother, like a sibling relationship and in the daytime I’d just pretend nothing happened like he did. Q. You weren’t scared of him. A. He was a complete different person in the morning. 284 LGF was cross-examined about why it was that she had never had any conversation with the accused about what he was doing to her. She gave the following evidence:248 Q. You never asked him to stop, you never told him that you didn’t like it. A. I wish I did, but I was always too scared and he’d always pretend nothing happened in the morning so I’d try and convince myself nothing happened at night. Q. What were you scared of. 243 MFI P19 at T 182.19-30. 244 MFI P19 at T 185.29-32. 245 MFI P19 at T 186.4-13. 246 MFI P19 at T 184.19-185.7. 247 MFI P19 at T 183.37-184.3. 248 MFI P19 at T 197.28-198.1. -- 49 of 127 -- [2024] SADC 107 48 A. Just the family falling apart and not having my big brother, ‘cos even though he was doing those things we still had a connection, a sibling connection. Q. But why didn’t you ask him to stop. A. He never talked about it so I didn’t want to bring it up. 285 LGF agreed that she left Nanna’s house and returned to live at Kenneth Road because she was sick of her Nanna being strict and that this decision had nothing to do with the alleged offending.249 Complaint to JMT Complainant’s Evidence 286 The first person LGF told about the alleged offending was her friend, JMT. 287 LGF told Officer Kittel that she told JMT when they were walking together back to JMT’s house and got into a conversation about something sexual, like rape or sexual assault. She told JMT that the accused had touched her sexually and had tried to have sex with her. She had not told JMT exactly what he had done.250 288 LGF could not recall when this conversation had occurred but thought it was about two to five months before the interview. She remembered that she had been ‘making stuff’ with JMT and that could have been for someone’s birthday. She said that afterwards, JMT hugged her and they went and sat on someone’s lawn. They picked some flowers and kept them as a memory. JMT then printed off some pictures and put those, with the dried flowers, in a frame which she gave to her as a Christmas present.251 She identified Exhibit P8 as a photograph of that frame.252 289 LGF was asked during evidence-in-chief if, after she told JMT about the alleged offending, the accused had continued to touch her. She said she was not 100% sure but she thought so.253 290 As to why she had not told anyone about the offending before telling JMT, she said:254 A. Well, the whole family wasn’t in the best place that year, everyone was fighting, so I didn’t want to break up the family what I was thinking at the time. And, yeah, I was just scared, so I just wanted to tell her, because I needed to tell someone. Q. Is that why you decided to tell [JMT] then about [JLF]. A. Yeah. 249 MFI P19 at T 205.3-6. 250 First LGF interview at pp 28-29, lines 1315-1367 and p 31, lines 1471-1487. 251 First LGF interview at pp 29-30, lines 1369-1434. 252 MFI P19 at T 130.10-29. 253 MFI P19 at T 130.33-37. 254 MFI P19 at T 130.2-9. -- 50 of 127 -- [2024] SADC 107 49 JMT’s Evidence 291 JMT gave evidence that she had known LGF since they went to kindy together. She had always lived near LGF and during the relevant period, she lived within walking distance from Kenneth Road. She did not attend the same secondary school as LGF but would see her probably once a week.255 292 JMT recalled a conversation she had with LGF around Christmas time, in December, during which LGF told her that the accused was trying to touch her in her ‘private areas’.256 She said the conversation had occurred in LGF’s bedroom at Kenneth Road and that LGF was really upset and nearly started crying. JMT then suggested they go for a walk so LGF could clear her head. They walked to her house and on the way, JMT took some photographs and videos as they walked through some pretty leaves. These photographs and still shots of the videos were tendered as Exhibit P28. By reference to that exhibit, JMT said these images were taken on 16 December 2020.257 293 JMT gave evidence that during the walk, they had collected some flowers and leaves. She dried those leaves and flowers and put them in a photo frame with some photos of her and LGF. She then gave this to LGF as a present for Christmas 2020.258 294 During cross-examination, JMT initially maintained that she was 100% certain that LGF had used specifically stated that the accused had touched her on her ‘private parts’. When reminded that in a statement given by her to police on 17 October 2021, she had said she could not recall the exact words used by LGF, JMT agreed that she must have inferred this from what LGF told her.259 Elaboration of Complaint to LF Complainant’s Evidence 295 LGF also told her brother, LF, about the alleged offending.260 When asked how that conversation came about, she gave the following evidence:261 A. Me and mum were fighting that day, and I wasn’t in the right headspace, and I took a bunch of pills trying to overdose. Mum took my phone away because I wasn’t doing the dishes, and all I wanted to do was talk to my best friend. So instead I just walked to her house, because she was only like five minutes away. And we were just talking at the park and that’s when – no, that wasn’t at the park, sorry. I walked straight to her house – I think she answered the door and I was just crying, and then she had to tell her mum, because she thought something was going to happen, and then she called my mum, and then [LF] and my mum picked me up. And I was in the back seat of the car, and then they were like yelling at me, saying I was doing everything for attention, and 255 T 164.30-165.29. 256 T 166.25-26. 257 T 166.36-169.26. 258 T 169.27-170.15. 259 T 172.36-174.11. 260 First LGF interview at p 31, line 1469. 261 MFI P19 at T 131.9-33. -- 51 of 127 -- [2024] SADC 107 50 stuff like that. And then mum went inside when we got home, and then me and [LF] were in the back seat, like he’d moved to the back seat. And then I just told him like, I was struggling a lot, and mum wasn’t believing me, that I was struggling, she was just saying I was doing it for attention. But then I just ended up telling him, because I didn’t want them to think I was doing it for attention. I don’t remember the exact words, but I just told him that like [JLF] has been touching me for a while now, and I didn’t really want to be there at the time. 296 When asked why she had tried to overdose, LGF explained that that she had been struggling since Year 4, then ‘all this other stuff started happening’, she had to deal with high school and not being able to tell her family about the accused. The ‘other stuff’ was the accused touching her.262 297 Her mum drove to get her, and then she, her mum and LF drove home. She was in the back seat and feeling sad, angry and confused. When they got home, her mum got out of the car and LF came into the back seat and they started talking about why she had done this. She then told LF that the accused had been touching her for months, she was struggling with school and did not want to live. She could not recall the exact words she used. She said she would not have told him in detail about the offending and would have just said that the accused was touching her. She could not recall anything else she had told LF or what he had said to her. 263 KW’s Evidence 298 KW gave evidence about an occasion, after LGF ran away on New Years Eve 2020, when she became aware that LGF had overdosed. She said she received a call from JMT about this and then drove with LF to JMT’s house to collect LGF. When they arrived home, she went inside, but LGF and LF stayed in the car for a good hour, talking, before coming inside.264 LF’s Evidence 299 LF gave evidence that he remembered LGF trying to overdose but he thought this had occurred before LGF ran away to JMT’s house. His mum had got a phone call to go to JMT’s house to get LGF. He was going to go with her, but she drove off without him. He ran after her and KW ended up picking him up as she drove back home with LGF in the car.265 300 When they arrived home, he got into the back seat and stayed in the car with LGF while his mum went inside. He said:266 … I sat in the back with her and was just asking like why is she doing this and, like 'What's wrong?', and then she said that she didn't want to ruin the family and she can't tell me why and she has to talk to a real professional that isn't family and I kind of just kept trying to talk to her and get like, just to know what's happening. And I asked, like, if something had happened to her and if maybe like [JX] did something, or if my uncle did something and 262 MFI P19 at T 132.15-21. 263 MFI P19 at T 133.5 -134.8. 264 T 79.32-81.18. 265 T 124.30-125.6. 266 T 125.18-38. -- 52 of 127 -- [2024] SADC 107 51 when she kept saying 'No', I kind of realised, but then I just asked if it was [JLF] as the last option and she said 'Yes' and just started saying that I couldn't tell mum because she doesn't want to destroy the family and since like mum went through all of that kind of stuff, she just didn't want mum to ever find out about it. So I just didn't tell mum for a little bit and kept it to myself and just helped her as much as I could for the next few months until mum kind of was going off at me because she thought I might have known something or whatever, and I finally just said '[JLF]' and it all clicked and made sense. 301 He described LGF as hysterical. She was crying and not able to breathe, such that she was unintelligible for a lot of the time. 302 LF said LGF did not tell him any details of what had happened straightaway but that he had continued to question her to try to ascertain the extent of what had happened. She told him that it started as just cuddles, but that at one point they were in the bed, cuddling, she felt his penis on her, she could not say or do anything and then she got touched. 303 In cross-examination, LF was asked if LGF had told her that things she was saying about the accused had started after his birthday. He said:267 A. Yeah. Well, she didn't say it started after my birthday, she said it started after the big acid trip that we had, which was my birthday. Or the night [JLF] ran away and stuff. Q. And that was sometime around your birthday. A. Yes. Q. Just to be clear, that's when [LGF] said that the things first started happening. A. Yeah. 304 LF also gave evidence that LGF told him about a specific incident which had occurred in the lounge room. He said:268 … And then she told me about another point on the couch, where she was sitting down on the couch and mum was like awake and walking around and stuff and apparently he had, like, his arm on her back and then slowly kept just going down to the point where he was basically fingering her or whatever and they were like the main two things that she went into detail that I can remember. (my emphasis) 305 He said he was in the car talking to LGF for about 40 minutes to an hour.269 He did not tell anyone about this at this time because he was afraid. He said he was too young to put this into words, particularly as he was aware that his mother had suffered similar trauma.270 267 T 148.10-18. 268 T 127.21-28. 269 T 127.29-31. 270 T 128.1-9. -- 53 of 127 -- [2024] SADC 107 52 JMT’s Evidence 306 JMT gave evidence about a time LGF when tried to overdose not long after New Years Eve 2020. She was not with LGF at the time this happened however when she learned about it, she rang KW. 271 She said KW then came in her car to collect LGF. There was no one with KW at that time.272 LGF’s Admission to Hospital 307 LGF gave evidence during cross-examination that in either 2020 or 2021, she and a friend stole some home brew from her friend’s mother. She then drank that home brew at school and was taken to hospital.273 308 KW gave evidence that on 22 February 2021, LGF was taken to the Emergency Department at the Flinders Medical Centre after she came to school intoxicated. KW attended at the hospital that afternoon. She made a telephone call to LF and then spoke to LGF.274 After speaking to LGF and while still at the hospital, she sent a message to the accused in the following terms:275 Omfg, how could you do that to My little girl 309 Shortly thereafter she sent a second message to the accused:276 Don’t wanna See you, neither does she. OMG 310 KW thought she had received a response from the accused, that same day but did not know where the response was.277 311 The allegations were reported to the police shortly thereafter.278 Other Messages exchanged with Accused Between LGF and the Accused 312 Exhibit P9 is a screenshot of the accused’s mobile phone showing messages from his Instagram account. One of the messages bears the date 3 March 2021. It says, simply, ‘I’m sorry [LGF]’ (the ‘I’m sorry’ message). The message is not preceded by anything earlier which sheds light on why the message was sent, or for what the accused was sorry. 313 LGF remembered receiving this message from the accused and thinking he was ‘like trying to reach out to me. Actually apologising.’279 She said that at that time, apart from the offending, there were no other issues between her and the 271 T 171.16-33. 272 T 171.34-172.6. 273 MFI P19 at T 172.16-33; T 210.14-20. 274 T 81.19-82.10. 275 Exhibit P22, tendered without objection; T 82.32-83.18; T 84.2-38. 276 Ibid. 277 T 85.8-11. 278 T 86.31-87.2. 279 MFI P19 at T 136.11-12. -- 54 of 127 -- [2024] SADC 107 53 accused, or anything else that he would be sorry for. She assumed the accused was apologising ‘for him taking advantage of (her) body.’280 314 Exhibit P10 contains screenshots taken from LGF’s mobile phone. These messages are undated. LGF gave evidence, which was not challenged, that these messages were between her and the accused, who was using an account he had created and named ‘Henry’. She could not recall when these communications had occurred, other than it was after she had received the ‘I’m sorry’ message from the accused and after she had moved out of Kenneth Road and was living at her mother’s new boyfriend’s house at Salisbury.281 The messages read: HENRY Hey [LGF]. Its [JLF]. Can we speak sometime. ME [JLF] who [JLF] who Oi cunt fucking answer if you want to speak fucking awnser the danm phone I’m not sure if your some random or fucking a person HENRY It’s [JLF] ME what HENRY Can I speak to you in person sometime? ME No you have completely fucked my life up I can’t look at anyone and feel safe anymore I can’t trust anyone or do things without overthinking in the worst way possible if you want to talk talk on here or don’t coz fuck HENRY Okay 280 MFI P19 at T 136.20-31. 281 MFI P19 at T 136.32-139.9. -- 55 of 127 -- [2024] SADC 107 54 ME so what do you want to say ME I don’t have all night to stress you finally text me so say it HENRY I just wanted to talk to you in person ME can you just tell me now coz I’m not talking to you in person or not yet at least HENRY I want to hear what happened that night from your mouth ME what? HENRY I don’t have any memory past 1:30 I think ME this has happened multiple times there’s all different times ME what was going through your fucking head to do that to someone and your own sister quite brave of you to text me Between KW and the Accused 315 On 4 March 2021, KW sent a message to the accused in the following terms:282 If you think saying [sorry is] good enough, your wrong. [ZF] cannot have you around her daughter alone because of what you did to your little sister. How disgusting sge had told me some things you did to her, going to [JMT’s] house you got no shame and getting her dtunk so you can do things to her. 282 Exhibit P22, p 2; T 85.20-28. -- 56 of 127 -- [2024] SADC 107 55 316 KW gave evidence that she was prompted to send this message by the accused having written, ‘I’m sorry’. She thought he had written that to her, but for LGF.283 317 KW gave evidence that the accused replied to her message dated 4 March on 11 March. His message read:284 Can you tell me what I did. I don’t remember. 318 KW then replied with a message, sent shortly thereafter:285 Are you fuckin serious …want me to tell you what she told us. You out your … inside her when you thought she was asleep. You got ger drunk you touch ger titties. Disgusting. Accused’s Record of Interview 319 The accused participated in a record of interview with Detective Brevet Sergeant Williams (Officer Williams) conducted at Ethelton on 3 June 2021.286 320 At the commencement of the interview, Officer Williams informed the accused that he was investigating an allegation of persistent sexual exploitation of LGF. He asked the accused what he could tell him about the matter. The accused said that he was told that on New Years Eve night, he had a sexual relationship with LGF ‘and then that’s pretty much it’.287 He had then contacted LGF asking her what had happened and found out that there were multiple times. 321 The accused described his sibling relationship with LGF as ‘pretty standard’.288 He explained that he got closer with both LGF and LF after he moved out of home at the age of 18 when his child support stopped. Although he still had two years of school down south to complete, he moved in with his grandmother at Ethelton. 322 Thereafter, he then went to visit LGF and LF ‘roughly every fortnight’ for the following five years, which visits stopped in February 2021. Later he said he stayed at Kenneth Road ‘every fortnight to three weeks on average’.289 Sometimes he would stay every week in a month, but other times he may not stay for two months. He would stay over on weekends, but ‘pretty much’ just Saturday nights as he worked on Saturdays.290 283 T 86.20-30. 284 Exhibit P22, p 2. 285 Exhibit P22, p 3. 286 Exhibit P29. 287 MFI P30 at lines 228-229. 288 MFI P30 at line 307. 289 MFI P30 at line 543. 290 MFI P30 at lines 548-557. -- 57 of 127 -- [2024] SADC 107 56 323 The accused said he did not have a room at Kenneth Road. As to where he slept when he stayed there, he said ‘it was lounge room camping outside [LGF’s] room … and sometimes mum’s room but very rarely’.291 324 The accused was asked questions about sleeping in LGF’s bedroom:292 Q When you would stay in [LGF]s room where would [LGF] stay? A Ah she’d normally be out at a friends place or I’d be like in my swag on the floor Q Okay alright did you guys ever share a bed? A Yes Q Um A When we camped outside together Q What about inside? A Yep 325 The accused was told about the allegations, namely that there were times when he was in the same bed with LGF, either in her room or in the lounge room, when he had spooned her and touched her on her chest and/or buttocks and inserted his fingers into her vagina. Officer Williams asked the accused what he could tell him about those allegations, to which the accused replied, ‘Nothing’. When asked if these things had happened, he said no. 293 The accused responded in the same way when questioned similarly about the allegation that one time, he had taken LGF’s hand, put it on his groin, and placed it on his penis with a view to getting her to stimulate him.294 326 The accused was asked if he had ever taken drugs or used any substances. He said:295 A No I haven’t haven’t I pretty much stopped taking hard drugs and alcohol February pretty much inaudible I think it was the 22nd of February I went out to town for a Birthday Party and took a bunch of drugs and then inaudible my friends about wanting to be sober and then pretty much been sober since. 327 He said that during 2020, he was using a lot of cannabis and that he used acid probably every two weeks to a month. He said he would use these drugs ‘a lot’ at Kenneth Road, as he could not do this at Ethelton because his Nan was too strict.296 He said that he had a low tolerance to cannabis and that after using one cone he would fall asleep straight away. He said he pretty much did this every night and 291 MFI P30 at lines 491-492. 292 MFI P30 at lines 587-602. 293 MFI P30 at lines 604-656. 294 MFI P30 at lines 678-695. 295 MFI P30 at lines 791-794. 296 MFI P30 at lines 801-828. -- 58 of 127 -- [2024] SADC 107 57 that he and his little brother (LF) would smoke cannabis together.297 He did not think this had really affected his memory.298 328 The accused said that he would ‘get on’ acid with LF. On average he would use one and a half to five tablets. This would make him laugh a lot and sometimes he would not sleep at all thereafter. He did not think it affected his memory at all.299 329 As to what had happened on New Years Eve 2020, the accused said that he and LF were going to do MD together. They had a pint together ‘and were both taking it and hanging out’. He said a couple of hours later he got a message from LGF to say she had run away from home and asking him to go and comfort her. He then went to her friend’s house, where he remembered listening to LGF talk and went outside with her to watch some fireworks.300 He said that LGF ‘just talked about her feelings and stuff’. He said, ‘She was standing up on her phone talking snapchats and stuff I was just sitting down’. He said he was sitting about two metres away from her.301 330 He said he was told he had put his fingers inside LGF that night but that he had no memory of that.302 331 The accused denied ever having bought or provided LGF with alcohol or drugs or of having shared drugs with her but said she had taken his alcohol before.303 He acknowledged that at times he had bought certain things for LGF and had taken her out to eat. He said he had also done that with LF.304 Accused’s Evidence 332 The prosecution tendered as an exhibit, a copy of the transcript of the evidence given by the accused at the first trial.305 333 The accused denied ever having been sexually inappropriate with LGF.306 Personal Circumstances 334 The accused gave evidence-in-chief that he was employed as an apprentice glazier and had been so employed during 2020. He said that for the past three to four years he had worked six days a week, sometimes seven and that he would get a week or two off over Christmas.307 During the week he typically started work at 297 MFI P30 at lines 834-854. 298 MFI P30 at line 858. 299 MFI P30 at lines 870-909. 300 MFI P30 at lines 914-943. 301 MFI P30 at lines 1015-1033. 302 MFI P30 at lines 947-951. 303 MFI P30 at lines 953-965. 304 MFI P30 at lines 976-991. 305 Exhibit P33. 306 P33 at T 393.29-31. 307 P33 at T 366.1-22. -- 59 of 127 -- [2024] SADC 107 58 7:00am and finished at 6:00pm. On Saturdays, he started at 8:00am and finished at either 4:00pm or 5:00pm.308 335 The accused gave evidence that he was successful in obtaining this employment after graduating from secondary school in 2017 at the age of 20. He explained that when he turned 18, his mother was no longer entitled to receive child support payments for him. He said:309 [KW] would constantly tell me that I’m taking all the family’s money by living with her and would degrade me every day for staying with her. 336 The accused then moved to Ethelton to live with RW. He was undertaking a Flexible Learning Program at a southern suburbs high school, which meant he had to catch a train for an hour and a half and walk half an hour each day, simply to get to school.310 337 While he was at high school, the accused started playing ice hockey and was captain of the ice hockey team for two years, competing against other school teams in the Ice Factor competition at Thebarton. He was offered the opportunity to represent Ice Factor at Government House but declined, as he was also offered and accepted the opportunity to represent Operation Flinders at the same event. The accused explained that Operation Flinders was a program that worked with children deemed to be at risk (and he was deemed to be such a child). At the age of either 16 or 17 he had completed a 100 km walk through this program. Thereafter he volunteered for Operation Flinders, at their request, for three years.311 338 In cross-examination, the accused gave evidence that he stopped playing ice hockey when he finished school in 2017. Thereafter, he was offered a role as a coach but declined as he was working. He did not have much contact with those at Ice Factor after 2017.312 339 The accused has no criminal convictions.313 Relationship with Siblings 340 The accused gave evidence that he had always been close with ZF but that he had a poor relationship with LGF and LF until he was 18 and was no longer living with them. He explained that this was because KW did not enforce any rules in the house. LGF and LF would run amok and he did not like that. His relationship with them both improved once he moved out.314 308 P33 at T 366.23-28; T 367.12-14. 309 P33 at T 362.3-5. 310 P33 at T 362.16-363.4. 311 P33 at T 363.7-364.37. 312 P33 at T 460.16-461.2. 313 P33 at T 363.25-26. 314 P33 at T 361.13-28. -- 60 of 127 -- [2024] SADC 107 59 341 When the family moved to Kenneth Road, the accused would visit them ‘every two, to three, to four weeks’ depending on what other plans he had. He only ever stayed there on a Saturday night, as he had work an hour away on Saturday mornings.315 In addition to these visits, he had seen KW, ZF and LGF two or three times when they met him around Port Adelaide. He also saw LGF at ice skating, as he had arranged for his friend to collect LGF and drive her to the ice rink. He did this as he wanted his friend to be a good role model for LGF, as his mother was not, because of her drug use and abuse. He said he wanted LGF to get out and experience life in a more stable environment.316 342 During cross-examination, the accused was questioned about what time he would get to Kenneth Road on a Saturday and what he would do when he was there. He said he usually finished work between 4:00pm to 6:00pm on a Saturday and that he would normally get there around 7:00pm, or even later, 8:00pm or 8:30pm if he went home first after work to shop or do chores.317 When he got there, he would go and hang out with LF, smoke some cannabis and go to bed. Sometimes he would take LGF to the movies, either on a Saturday night (if he got there early) or on a Sunday.318 Sometimes he would just pop into Kenneth Road after work on a Saturday before going to a party and would not stay over.319 343 The accused agreed he had taken LGF to Build-a Bear and out to lunch. He bought her food, LED lights, a tapestry and some Christmas presents during 2020. He denied ever buying her clothes.320 344 He said that he and LGF used to do each other’s hair - he would brush her hair and she would plait his hair into a ponytail. He said they had done this ‘three years ago’, in other words, 2019. He was pretty sure that this did not continue into 2020.321 345 The accused also gave evidence that he and LGF would watch movies together, either in the lounge room or on her laptop in her bedroom. 346 He described having a good relationship with LGF, one where she trusted him and confided in him. He knew that she was struggling with her mental health and was cutting herself in 2020. He said her mental health had never been great and that she had been cutting herself since Year 4.322 315 P33 at T 367.6-27. 316 P33 at T 367.28-368.26. 317 P33 at T 416.18-418.17. 318 P33 at T 418.23-31; T 419.13-16. 319 P33 at T 419.25-31. 320 P33 at T 394.29-38; T 410.23-411.7. 321 P33 at T 395.1-15. 322 P33 at T 396.1-14; T 398.33-399.9. -- 61 of 127 -- [2024] SADC 107 60 347 They never had a fight with each other until she came to stay at RW’s house.323 Relationship with KW 348 The accused gave evidence that KW was an awful mother to him and that he never really considered her a mother.324 He described her as being abusive towards everyone and said he had never really like her. He only acted friendly towards her so she would not throw tantrums.325 349 He gave evidence that from when he was aged six on, KW ‘would constantly tell me that I was evil for being born a male, and she would hit me in the genitalia and call me a rapist for being born a male’.326 350 The accused said that when he was in about Year 6 or 7, over a period of between six months and one and a half years, KW would come into the room he shared with LF, at night and touch him inappropriately. This only stopped when he was in Year 7 because he slept on the floor for six months. He had never reported this abuse, or any of the other physical abuse that happened in the house, as KW had told him, from when he was about aged six, that if he did, Child Protection Services would take him away and rape him.327 351 Notwithstanding he was now an adult, the accused gave evidence that he had not reported the abuse to the authorities, as he was trying to look after his family and keep the family together in one unit.328 However, as confirmed by Officer Lock, the accused did report the alleged abuse to police, for the first time, on Friday 31 May 2024, that is, on the second day of trial.329 352 During re-examination, the accused gave evidence that he had only previously told one person, his boss, about his mother molesting him.330 353 The accused’s employer, Mr Anderson, gave unchallenged evidence about this. He said about six to 12 months after the accused started working with him, he was talking to the accused about his own mother. He said the accused started crying and when he asked him what was up, the accused told him that we he was about eight to 10, ‘his mother had been wanking him off and beating him and locking him in rooms and all sorts of fun stuff’.331 He had not reported this to police. 323 P33 at T 396.15-16. 324 P33 at T 399.15-18. 325 P33 at T 359.22-37. 326 P33 at T 360.2-5. 327 P33 at T 360.14-361.12. 328 P33 at T 459.24-34. 329 T 185.3-20, this was approximately 21 months after the accused gave evidence at the first trial. 330 P33 at T 464.5-11. 331 T 205.7-9. -- 62 of 127 -- [2024] SADC 107 61 354 In cross-examination, the accused agreed that, on occasions, when he stayed at Kenneth Road, he would sleep in his mother’s bedroom. As to when, he said:332 Only when I got back really, really, late in the night from being out in town, or getting a few hours after I just only got a few hours at a friend’s house. 355 He clarified that KW would be awake at the time, up out of bed and making coffee or watching television. He was content to do this, notwithstanding he had abused him when he was a child, as he was confident he could protect himself.333 Alcohol and Drugs 356 The accused gave evidence that KW had been smoking cannabis for his whole life and by the time he was 16, she smoked cannabis daily. She also had a meth addiction and had been smoking meth since he was five.334 357 The accused acknowledged that he had used drugs during his visits to Kenneth Road. He said he primarily used cannabis but also used acid, MDMA and ‘shrooms’ which he had bought off LF, because LF was ‘a drug dealer’. He said he was not allowed to use drugs or alcohol at RW’s house. 335 358 The accused said he would do drugs with LF. As to where they would do drugs, he said:336 Q. Where would you do them in the house. A. Primarily in [LF’s] room, but as drugs were not a stigma in the house, you could do them anywhere. Q. Then was it not a problem for the two of you to take MDMA and acid and then sort of just kick around the house off your heads. A. No, that was not a problem. 359 The accused gave the following evidence-in-chief:337 Q. Is it the case that you weren't always taking drugs at Kenneth Road. A. Cannabis, yes, unless I only visited before I went to a friend's house, but everything else was a rare occasion. 360 The accused gave evidence that he started using cannabis when he was 16. During 2018, 2019 and 2020 he was spending around $300, every three months, 332 P33 at T 430.29-31; T 461.1-10. 333 P33 at T 460.1-10. 334 P33 at T 368.31-34. 335 P33 at T 368.35-369.9. 336 P33 at T 369.13-19. 337 P33 at T 370.29-32. -- 63 of 127 -- [2024] SADC 107 62 on cannabis and was using cannabis every night.338 He bought drugs off LF and during 2020, probably spent about $2000 on drugs.339 361 The accused gave evidence that during 2020 he would smoke cannabis every night of the week after work. He had a glass bong which he kept either in LF’s bedroom or in his room, on a shelf, at RW’s house.340 He said he smoked cannabis with LF every time he visited Kenneth Road. He would do this in LF’s bedroom, or occasionally in KW’s bathroom or outside. He denied ever smoking cannabis in LGF’s bedroom or giving her his bong or taking his bong into her bedroom.341 362 Although he could not be 100% certain, he said, initially, that he thought he started using other drugs, MDMA, acid and ‘shrooms’, about halfway through 2019.342 He said that he used acid once a month but acknowledged it could have been once every two weeks. He had spent about $150 to $200 on acid ‘for the few months’ that he had used it. He acknowledged he had told Officer Williams that he used acid every two weeks to a month and that he ‘did it a lot at their place’ (ie Kenneth Road).343 363 The accused gave evidence that he had also taken acid at RW’s house, ‘every month roughly’. He would set his alarm for 2:00am on a Sunday morning, do acid, then go roller blading at Port Adelaide looking at artwork. He said this had the effect of making the artwork move, the birds fly and the crocodiles swim. The effect would wear off by about 10:00am that morning.344 364 The accused had taken MDMA three or four times, including on New Years Eve 2020, which he believed was the fourth time he had taken it.345 He said he had used ‘shrooms’ three times. He denied ever going for a walk with LGF in a forest and picking ‘shrooms.346 365 The accused said he started drinking alcohol at about age 12. During 2020, he drank alcohol at Kenneth Road about once a month to once every three months. He would drink red wine or spirits such as Vodka or Jack Daniels with KW. He denied ever drinking alcohol with LGF or buying her alcohol, such as UDLs or a Little Fat Lamb. He denied ever taking her to parties and getting drunk with her. He said there were times that LGF would ask him to buy alcohol for her, but he would refuse. He also recalled that LGF would take a sip of his drink when he was playing cards and walked away from the table. This was alcohol that KW had 338 P33 at T 409.10. 339 P33 at T 410.11-22. 340 P33 at T 412.31-413.14. 341 P33 at T 413.24-414.14. 342 P33 at T 403.11-404.16. 343 P33 at T 404.17- 405.3. 344 P33 at T 405.5-406.10. 345 P33 at T 406.23-407.4. 346 P33 at T 406.11-22. -- 64 of 127 -- [2024] SADC 107 63 bought for him.347 He probably played cards at the dining room table once a month.348 366 The accused categorically denied ever providing cannabis or alcohol to LGF. He categorically denied ever giving her cannabis or alcohol at Kenneth Road to keep her quiet about what he was doing to her or so he could offend against her. He had only ever seen LGF smoking cannabis on social media since the allegations came to light.349 367 The accused acknowledged that at Kenneth Road, there were no rules about alcohol or drugs and that he could take drugs or use alcohol there whenever he wanted. He denied that was why he liked to go there.350 He acknowledged there were times at Kenneth Road when he was high just before he went to bed but denied that either being drunk or high on cannabis emboldened him to offend against LGF.351 Sleeping at Kenneth Road 368 The accused gave evidence-in-chief about where he slept at Kenneth Road. He said he typically slept on a mattress in the lounge room. However, in mid-2020, KW threw that mattress out and he would bring his swag down and put it in the lounge room.352 369 He said that he normally went to bed at 9:00pm because he would be tired from work. He found it unpleasant sleeping in the lounge room for two reasons. One was because KW would be ‘obnoxiously loud’, drinking and playing cards with ZF (and occasionally LGF and LF) and there was no door separating the lounge room and the area they were playing.353 The second was that the swag was only thin and it was uncomfortable sleeping on it on the cold tiles in the lounge room.354 370 Eventually he decided to take his swag into LGF’s room and slept in there on it, on the floor as it was much quieter and warmer in there. LGF was normally out of her room, hanging out with others in the family. 355 He did not want to sleep in LF’s room as LF and his girlfriend ‘would be making love constantly and I didn’t want to see that’ and he did not feel comfortable sleeping around KW.356 347 P33 at T 409.5-8; T 409.33-410.10; T 411.8-12; T 412.4-25; T 461.7-30. 348 P33 at T 462.5-9. 349 P33 at T 369.21-30; T 414.18-28. 350 P33 at T 408.6-409.4. 351 P33 at T 414.29-38. 352 P33 at T 369.32-370.12. 353 P33 at T 370.14-35. 354 P33 at T 370.36-371.4. 355 P33 at T 371.8-16. 356 P33 at T 372.4-5. -- 65 of 127 -- [2024] SADC 107 64 371 In cross-examination, the accused acknowledged that occasionally when he slept in LGF’s room on the swag, he slept adjacent to the dining room wall, meaning he could still hear the card game. He said there was nowhere else to go.357 372 The accused was the asked if there came a time after that that the sleeping arrangements changed again. In response he said:358 A. [LGF] would ask me to watch movies with her in her bed and I would often fall asleep in the first 10, 30 minutes of the movie starting. Q. Did you remain asleep until the next day. A. Yes. 373 The accused gave evidence that LGF was only there about half of the times that he visited as ‘she would sleep over at friends every second weekend’.359 When she was not there, he would sleep in her bed. When asked if LGF ever slept in her mother’s room, when he was visiting, he said, ‘Yes, quite a lot’.360 374 During cross-examination, the accused gave evidence that he kept his swag at RW’s house and that sometimes he did not take it with him to Kenneth Road. He acknowledged that after the mattress was thrown out, and he did not have his swag, he would sleep in LGF’s bed. He said this had happened ‘probably about 14 times in total’ but subsequently corrected himself that to say that would be the maximum number and it could be less. He agreed it was a regular occurrence.361 375 The accused denied that there was ever a time that he would knock on LGF’s door when she was already asleep, come into the room and lie next to her. He said she would always be awake.362 376 The accused was cross-examined in some detail about what happened when he was in LGF’s bed with her. He said that LGF would sleep on the side of her bed near the wall and he would sleep on the side closest to the door. This made sense as he would wake up before LGF and would get up before her in the morning.363 377 He said LGF’s bed was either a double or queen size bed. They would sleep about 500 mm apart, so that their bodies were not touching. He denied ‘spooning’ LGF or sleeping with his arm around her or cuddling her but acknowledged that he would give her a hug goodnight and then let go.364 378 During the summer months, he would wear boxers and a shirt when sleeping in LGF’s bed. He denied ever sleeping topless. In winter, he would wear ‘trackies’ 357 P33 at T 462.18-38. 358 P33 at T 371.25-29. 359 P33 at T 371.35-36. 360 P33 at T 372.12. 361 P33 at T 420.33-421.35. 362 P33 at T 421.36-422.6. 363 P33 at T 426.9-25. 364 P33 at T 422.7-423.4. -- 66 of 127 -- [2024] SADC 107 65 and a jumper. He said LGF would wear shorts, a shirt and, he assumed, a bra. He would sleep under a blanket with LGF in the winter but not in the summer.365 379 The accused gave evidence in cross-examination that there were multiple times when KW came into LGF’s bedroom when he was in LGF’s bed, having slept in that bed with her. He said this happened ‘every time that I slept over’, then clarified this to be 90% of the time when he had slept in LGF’s room. When KW came into the bedroom, she would often speak to them and ask whether they wanted food or a cup of tea or wanted to go out with her.366 The Lounge Room 380 The accused gave evidence-in-chief that during 2020, there were multiple occasions, when he visited Kenneth Road, that LGF slept in the lounge room.367 381 He recalled a specific occasion when LGF slept in the lounge room and he had slept in her room. The next morning, he got up to get his breakfast. After he finished breakfast, he saw that LGF had woken up and was watching television in the lounge room. He joined her and they watched ‘Big Mouth’ together. He said he sat down on the bed that LGF had made on the floor, with his back against the lounge, such that he was sitting upright, as was LGF. He remembered that KW walked through the lounge room to make a coffee and then went outside to smoke a bong. Once the episode finished, he and LGF got up and went outside with KW.368 382 Although it was not uncommon for the accused to sit and watch television in the lounge room with LGF, he said he remembered this specific incident as KW had come through the lounge room. When asked if she had done that on other occasions, he said, ‘No, most of the times it was later on in the day’.369 383 During cross-examination, the accused gave evidence that there were occasions when he would sleep in LGF’s bedroom and LGF would sleep in the lounge room in a bed she had made up on the floor. He would see her there in the morning when he got up to get his breakfast. If she was awake and watching something on television that he also enjoyed, he would sit down and watch television with her. He would be sitting up so he could see the television, not lying down. He denied ever getting into that bed with LGF when she was still asleep.370 384 The accused gave evidence that there were multiple times that KW came into the room when he was sitting on that bed with LGF in the lounge room with LGF. He denied that on any of those occasions he was lying down next to LGF. He denied ever sexually abusing LGF in the lounge room.371 365 P33 at T 423.5-424.31. 366 P 33 at T 426.34-429.31. 367 P33 at T 375.36-376.1. 368 P33 at T 376.15-377.19. 369 P33 at T 377.31. 370 P33 at T 430.35-431.29. 371 P33 at T 432.17-433.26. -- 67 of 127 -- [2024] SADC 107 66 The Tent 385 The accused gave evidence that sometimes he would set his swag up in the backyard on the grass at Kenneth Road and sleep outside. He estimated he did this ten times between 2019 and 2020.372 386 During examination-in-chief, the accused was shown an exhibit described as D20, but tendered at trial as D23, being a screenshot of messages exchanged between the accused and KW between 11 and 18 April 2020, including a photograph of the tent set up under the carport. The accused was asked if he had seen that tent up before he received that message and said he had not.373 He denied ever sleeping in the tent depicted in the photograph.374 He had seen the tent set up before, on the grass in the backyard at the end of 2019 in the Christmas holidays. He did not know how long the tent was up for at that time as he ‘was only there for like one day’.375 In cross-examination, he denied ever seeing the tent set up under the carport at Kenneth Road.376 387 The accused gave evidence-in-chief that he had left his laptop on Kenneth Road when he left there on Sunday 12 April 2020 and that KW drove down to Port Adelaide on Sunday 19 April 2020, with LGF and ZF, to return it to him. They went out and had hot chips on the beach. He had slept at Ethelton the night of Saturday 18 April 2020 and the next time he stayed at Kenneth Road the tent was no longer up. 377 388 During cross-examination, the accused denied ever having slept in a tent at Kenneth Road. He said he would sleep in his swag if he slept outside at Kenneth Road.378 The accused said he was pretty sure that he had never shared a bed with LGF if he slept outside.379 When asked why he had told Officer Williams that he had shared a bed with LGF when they camped outside together,380 he gave the following evidence:381 Q. Do you agree you're telling the police officer that you shared a bed with [LGF] and you camped outside together. A. It could mean that I was in the swag next to the tent. I don't know. Q. Sorry, I missed that. A. It could be referring to me putting my swag near the bed outside. 372 P33 at T 373.17-26. 373 P33 at T 374.5-11. 374 P33 at T 375.10-12. 375 P33 at T 375.14-20. 376 P33 at T 416.9-12. 377 P33 at T 373.31-374.4; T 374.12-375.8. 378 P33 at T 434.8-13. 379 P33 at T 434.14-18. 380 MFI P30 at lines 592-598. 381 P33 at T 435.8-33. -- 68 of 127 -- [2024] SADC 107 67 Q. What bed outside. A. The tent. Q. So there was a tent; is that right. A. Yes. Q. Where was that tent. A. It was on the grass in late 2019. Q. Was [LGF] in that tent, was she. A. Probably. Q. Well, where were you. A. I reckon I would have been in my swag. Q. So is your evidence 'That when we camped outside together', that's in reference to [LGF] being in the tent and you being in a swag next to the tent; is that right. A. Yes, it's been a long time. Q. That's not sharing a bed together, is it. A. No, we were sleeping together and we're talking and like and we're at the same level. New Years Eve 2020 389 The accused gave evidence-in-chief that on New Years Eve, 2020, he went to Kenneth Road for LF’s house party. While at the party, he played one game of beer pong and had one or two drinks. He said he also took one and a half pills of MDMA with LF at 6:00pm.382 390 While at the party he received a message from LGF, saying she had run away.383 She asked him to go to JMT’s house as she needed someone to talk to. He walked to JMT’s house and arrived there at around 8:00pm. At that time he was feeling ‘pretty normal, as the drinks weren’t that strong, and there was only five half cup drinks’.384 391 There was no one else there. LGF then confided in him until around 11:30pm. She told him why she ran away and about multiple issues in her life.385 Those issues included:386 382 P33 at T 378.8; T 379.26-33. 383 Exhibit D14. 384 P33 at T 380.8-9. 385 P33 at T 378.3-379.11; T 379.24-380.3. 386 P33 at T 379.13-14. -- 69 of 127 -- [2024] SADC 107 68 [KW] beating her with a lacrosse stick on multiple occasions. Boy problems. And school problems. 392 They then went outside to watch the fireworks. He said LGF was snapchatting all night long, taking pictures of herself to send to friends. He fell asleep around 1:30am, at which time LGF was still up, ‘because she’s very used to having late nights’.387 He denied giving LGF any alcohol that night. 393 During cross-examination, the accused was asked further questions about the drugs he had consumed prior to arriving at JMT’s house. In response to specific questioning by the trial judge as to whether had taken the one and a half pills of MDMA at the same time, he gave the following evidence:388 A. I believe I waited an hour before I took the next half. Q. Why did you take the next half. A. Just so that the original rush wouldn't be so much. Q. So you took a full one. A. Yes. Q. Then after about an hour, you took another half. A. Yes. Q. So it didn't hit you all in one shot too hard. A. Yes. Q. How long did it last. A. Three hours. 394 He said he was feeling happy from the MDMA and ‘a little tipsy’ from the alcohol when he went to JMT’s house.389 395 The accused denied that LGF had asked him to bring her alcohol.390 He said he stayed up to watch the fireworks and then fell asleep on JMT’s bed, sitting up, looking out of the window. At this time LGF was still up, walking around talking and taking Snapchats on her phone. He said he woke up at around 7:00am, still sitting in the same position. He denied ever lying down in the bed that night, cuddling LGF or sexually assaulting her.391 387 P33 at T 381.19-20. 388 P33 at T 407.9-19. 389 P33 at T 407.25-33. 390 P33 at T 438.18-19. 391 P33 at T 438.20-439.20. -- 70 of 127 -- [2024] SADC 107 69 January 2021 at Ethelton 396 The accused gave evidence-in-chief about what had occurred when LGF came to stay at RW’s house in January 2021. 397 The accused recalled that during this period, LGF asked him for money to go on a holiday with her friend, so he her sent her friend’s mother the money. When LGF returned from the holiday, she came back to stay at RW’s house. He said things did not go well, as LGF was not used to living by rules. LGF was getting mad at RW for enforcing the rules and mad at him for telling her that this is what she needed. He said LGF was trying to cause fights in the house, between him and RW, RW and her, and KW and RW.392 398 The accused gave evidence-in-chief that he was working during this time and would typically go to bed at 7:00pm every night and wake at 4:00am. LGF would stay up until 2:00am or 4:00am. She either slept in the lounge room or in RW’s bedroom.393 He said LGF came into his bedroom on multiple occasions while he was trying to sleep, as she wanted to hang out with him and watch TikToks. He got angry with her for doing this, she would get annoyed and then leave his room shortly thereafter. He had never got angry with her before this.394 399 The accused said that on the day LGF left RW’s house, he heard a phone conversation between LGF and KW, during which KW told LGF to start fights at RW’s house. He told LGF that she could not come to his house to start fights, as his house was peaceful, as long as you followed RW’s rules.395 400 During cross-examination, the accused was asked if there was ever an occasion that LGF got into bed with him at RW’s house. He said:396 A. Yes, we watched Tik Toks in my bed. Q. How often would that happen. A. Probably twice a week. Q. Didn't you give evidence before that you would kick her out of your bedroom. A. I would still spend a little bit of time to give her as much attention as I could. Q. Didn't you give some evidence that you got angry at her for coming into your room. A. When I was trying to sleep, yes, I would. Q. But sometimes you watched Tik Toks together. 392 P33 at T 381.24-382.23. 393 P33 at T 439.37-38. 394 P33 at T 382. 24-383.29. 395 P33 at T 383.34-384.17. 396 P33 at T 440.2-26. -- 71 of 127 -- [2024] SADC 107 70 A. Yes. Q. Was that in your bed. A. Yes. Q. Were you lying down. A. Yes. Q. Was she lying down. A. Yes. Q. How often did that happen at nan's house. A. Probably twice a week. Q. On one of those occasions did you sexually assault her. A. No. Q. It's not the case, is it, that you got angry with her for coming into your bed at nan's house. A. You're wrong. Contact with LGF and KW Thereafter 401 The accused gave evidence that the last time he saw LGF was on 9 February 2021 at Kenneth Road.397 402 During examination-in-chief the accused was asked about the various messages he exchanged with KW and LGF as of 22 February 2021. He said that when he received the two messages from KW on 22 February 2021,398 he did not know what they were about, nor did he come to a view as to what they were about.399 403 The accused was asked for what he was apologising when he sent LGF the ‘I’m sorry’ message on 3 March. He gave the following evidence-in-chief:400 For the way I treated her at [RW’s] house and taking [RW’s] side in their fights and for sticking up for [RW’s] discipline for [LGF]. 404 The accused gave evidence-in-chief that when he received the message from KW on 4 March 2021 he did not know what the message was about and he was not aware of the allegations that he had abused LGF. 401 When asked if, in some 397 P33 at T 441.2-8. 398 Tendered at trial as P22, tendered at the first trial as P19. 399 P33 at T 385.22-33. 400 P33 at T 387.9-11. 401 This message is on p 2 of P22 tendered at trial but was contained in P19 tendered at the first trial. -- 72 of 127 -- [2024] SADC 107 71 way, he knew that message referred to a message he had sent LGF on 3 March 2021, he said ‘Yes, I did’.402 405 The accused gave evidence-in-chief that he only learned of the allegations after a conversation he had with his Uncle Dean at RW’s house, on 10 March 2021. He then sent a message to KW on 11 March 2021, so that she would tell him what he was being accused of.403 406 He said that thereafter, he had exchanged further Snapchat messages with KW.404 He was certain these messages were exchanged on 5 August 2021.405 In these messages he said, ‘Your not threatening to beat [LGF] with a sick (sic) again to make her say this. She told me why she ran away’. He wrote this as he thought KW was forcing LGF to say this ‘as it’s [KW’s] dream to make me suffer.’406 407 The accused gave evidence that Exhibit P10 comprised photographs of messages on his Snapchat account, exchanged between him and LGF, during the period March to May 2021.407 He said he created this account (being under a false name, Henry), ‘to watch [KW] and [LF] to get evidence on [KW’s] neglect.’408 In cross-examination, he said he used the name Henry so that KW, LF and LGF would not know that he was ‘watching them do illegal activities to record for evidence to take to court.’409 He could not use his own Snapchat account to contact LGF ‘because then they would know, and I also had her blocked’.410 408 The accused agreed that LGF had not replied to the “I’m sorry’ message. He denied he had used the false account to contact LGF to apologise and meet up with her to talk to her about him sexually abusing her.411 409 In examination-in-chief, the accused said that when he sent the messages in Exhibit P10 to LGF, he knew he was being accused of having touched LGF on New Years Eve, as he had received the message from KW on 4 March 2021 referencing JMT’s house and that was the only time he had been at JMT’s house for many years. He wanted to make sure that KW was not forcing LGF to say these things. He wanted to speak to LGF in person without KW around, ‘so that [KW] couldn’t beat her and force her to make up allegations like this.’412 410 In cross-examination, the accused said he was pretty sure he had sent the messages in Exhibit P10 after he had spoken to Uncle Dean. He said he wanted to speak to LGF to find out why she was making up the false allegations against him. 402 P33 at T 387.3-5. 403 P33 at T 387.12-388.14; p 2 of Exhibit P22 tendered at trial, being P19 as tendered at the first trial. 404 Exhibit D26. 405 P33 at T 389.6-8. 406 P33 at T 389.16. 407 P33 at T 389.22-23. 408 P33 at T 386.2-3. 409 P33 at T 455.7-8. 410 P33 at T 455.15-21. 411 P33 at T 455.22-26. 412 P33 at T 389.17-390.19. -- 73 of 127 -- [2024] SADC 107 72 He wanted to talk to her in person so that KW could not control her, as KW was ‘an abusive terrible mother that beats her kids’.413 411 The accused was directed to that part of the messages in Exhibit P10 wherein he said he had no memory past 1:30am, to which LGF had replied, ‘this has happened multiple times …’ He confirmed that he was referring to having no memory of what happened on New Years Eve after he fell asleep at 1:30am. As to why he had not questioned her about what she meant by multiple times, he said, ‘At that point I was led to believe I was only getting accused for one occasion’.414 He then gave the following evidence:415 Q. That's right, so you didn't question her what she meant by multiple times, did you. A. Well, I'm not going to question it if she's so adamant about the accusations, it seemed like there was no point in convincing her not to make them. Q. Why do you say that. A. Because she seems adamant in making these. Q. Then why did you want to meet up with her. A. To make sure that [KW] isn't controlling her. Q. Do you see there's another message on p.3. Do you see the last message on that 'What was going through your fucking head to do that to someone and your own sister? Quite brave of you to text me'; do you see that. A. Yes, I see the message. Q. You didn't reply to that, did you. A. No. Q. You didn't question her about that. A. No. Q. Not once did you say 'What are you talking about [LGF]?'. A. No. Q. You didn't do that, I suggest, because you knew exactly what she was talking about and that was you sexually abusing her on multiple occasions. A. As you can see in the messages, I'm just finding out. 412 A couple of months into 2021 the accused blocked everyone in his family, other than KW, from social media. He said he did this ‘[b]ecause [KW] told me 413 P33 at T 456.18-19. 414 P33 at T 457.36-37. 415 P33 at T 457.38-459.20. -- 74 of 127 -- [2024] SADC 107 73 that everyone in the family hates me and they think I’m a paedophile’.416 He had not had any contact with his siblings since exchanging the Snapchat messages with LGF (Exhibit P10), although he had had contact with KW.417 413 The accused was asked in cross-examination, why he had not apologised to LGF the last time he had seen her in person on 9 February 2021. He said that at that time she did not seem angry at him nor did she seem to be affected by the fact he had been angry at her at Nanna’s house. When asked when it seemed to have affected her, he said, ‘When she started making up stories’.418 414 However, he denied that when he received the messages from KW on 22 February 2021 that he knew then that LGF had told KW about the allegations. He gave the following evidence:419 A. I had some rough ideas in my head what they could be about. Q. And what was that. A. Me protecting [KW] – [LGF] from [KW], turning [LGF] against [KW], telling [LGF] that [KW’s] not a well mother and causing fights in the family by looking after [LGF]. Q. How does that refer to 'How could you do that to my little girl'. A. 'Cos [KW] believes what she believes to a hundred per cent and I turned [LGF] against [KW] by telling [LGF] about [KW’s] abuse and unruly behaviour. 415 He had not replied to those messages, nor asked KW what they were about.420 416 He maintained that he had sent the “I’m sorry’ message to LGF as he was sorry for sticking up with Nan, holding boundaries and putting up rules at RW’s house when LGF was there. He was also sorry about getting angry with her for coming into his bedroom. When asked why he was apologising for these things over a month after LGF had left RW’s house, he said:421 A. Because she started making false allegations against me. Q. And you said yesterday also that you saw [LGF] on 9 February at Kenneth Road, didn't you. A. Yes. Q. And you didn't apologise to her then, did you. 416 P33 at T 393.18-19. 417 P33 at T 393.20-24. 418 P33 at T 441.18. 419 P33 at T 442.25-37. 420 P33 at T 443.9-16. 421 P33 at T 447.4-9. -- 75 of 127 -- [2024] SADC 107 74 A. She didn't seem mad at that point. 417 He denied he was apologising for sexually abusing LGF.422 418 The trial judge asked the accused when he found out that LGF was making allegations against him of a sexual nature and specifically if it was before or after he sent the ‘I’m sorry’ message. The accused asked to look again at the text messages to see the dates. He said it was when he received the first message from KW on 11 March 2021.423 When it was pointed out to the accused that this message was sent after the ‘I’m sorry’ message on 3 March, he maintained that he had not sent that message in reference to his sexual abuse of LGF. He said, ‘(t)hat never happened’.424 419 He was asked again what he was apologising for in that message. He gave the following evidence:425 A. For getting mad at her at [RW’s] house, for sticking up for [RW], and just holding general rules and boundaries at [RW’s] house. Q. And why did you think that she was upset about those things. A. Because I started getting a bunch of hateful messages from [KW]. 420 When the accused was asked to identify what were the hateful messages to which he was referring, he identified those sent by KW to him on 22 February 2021.426 He said that he understood those messages related to him turning LGF against her mother, as he had given LGF a place to live and KW was not happy about it. He also thought those messages meant that LGF was unhappy about what had happened when she was living with him and RW.427 421 The accused was then asked what he thought KW’s message to him sent on 4 March 2021 had meant. He gave the following evidence:428 A. I thought that was about accusations that something happened at [JMT’s] house. Q. Do you disagree that in your evidence yesterday you said you didn't know what that was about. A. Well, it clearly says in the message that something happened at [JMT’s] house. Q. Well, your message yesterday was you didn't understand what that was about. A. I didn't, that's why I sent my next message saying 'Can you tell me'. 422 P33 at T 447.10-13. 423 P33 at T 447.36-448.17; noting P19 at the first trial is the document tendered as P22 at the trial. 424 P33 at T 448.25. 425 P33 at T 448.31-37. 426 P33 at T 448.38-449.3. 427 P33 at T 449.4-19. 428 P33 at T 450.4-31. -- 76 of 127 -- [2024] SADC 107 75 Q. Just so I'm clear, when you received the message on 4 March 2021, did you know what that was about, or you didn't know what that was about. A. Which message is that? Q. 4 March. A. Not entirely, that's why I asked for further information on it. Q. Do you say that that further information is you asking 'Can you tell me what I did' on 11 March. A. Yes. Q. At the time that you received the message on 4 March, you didn't then think to question what it was about. A. No. Q. Because you didn't reply did you, until 11 March. A. No. Q. You didn't think to say 'What are you talking about, what do you mean'. A. There's no point in talking to [KW]. 422 He understood that RW sent the message on 4 March 2021 in response to him sending LGF the ‘I’m sorry’ message. He agreed there was no reference in KW’s message to any fights at RW’s house but maintained that is what he thought KW was referring to. 423 The accused denied that when he received KW’s message on 4 March 2021 he knew that was in reference to him sexually abusing LGF. He said, ‘No, that’s why I asked for further information’.429 When asked why he had waited until 11 March to reply, seeking that further information, he said, ‘Because there’s no point in talking to KW’.430 424 He said there was a point to asking her on 11 March 2021, as the day before he had the conversation with his Uncle Dean, from whom he heard that he was being accused of ‘doing sexual stuff (with LGF) for a while.’431 He said he was trying to piece everything together (including the message of 4 March about JMT’s house) and when he had said ‘Can you tell me what I did, I don’t remember’, he was referring just to what had happened at JMT’s house. 432 429 P33 at T 452.30. 430 P33 at T 452.38. 431 P33 at T 453.9. 432 P33 at T 453.13-34. -- 77 of 127 -- [2024] SADC 107 76 Defence Case KW’s Relationship with the Accused 425 It was the defence case that the Court should reject KW’s evidence as she had a bias against the accused because she had been abused as a child. Evidence was elicited from KW in cross-examination on this topic. 426 KW said that her relationship with the accused when he was growing ‘wasn’t bad’.433 She categorically denied propositions put to her that she had called the accused a rapist from a young age or had regularly physically disciplined him by hitting him on his genitals when he was growing up.434 She categorically denied an allegation that when the accused was aged between 8 and 12, she would go into his room and molest him at night.435 427 KW did agree that when the accused was aged about 14 she took him to the Noarlunga Hospital with swollen genitals. She categorically denied that this was because she had hit him or that she had told him if he ever told anyone about it, he would be taken away. She said the accused had either played with himself too much or had an infection from not being circumcised. 436 428 The fact the accused left home when he was 18 was said to support his claim that his mother had a bias against him. KW gave evidence-in-chief as to why the accused left the family home and went to live with RW at Ethelton. She said:437 A. Because it was getting a bit squishy where we were, so [LF] and [LGF] were sharing a bedroom and, you know, [LF] needed some space, he was turning into a teenage boy and yeah, I asked if the two boys could share because they're both boys so [LGF] could have her own room and yeah, so [JLT] said 'no' so then it was best for him just to move out and yeah. 429 However, in cross-examination, KW agreed that the accused had left home at the age of 18 when she ceased receiving Centrelink payments for him.438 430 KW was questioned about alleged telephone contact she had with the accused’s boss in September 2021 and whether at that time she told him that she wanted to attend at his work and break the accused’s legs. KW said:439 A. Did I say that, because I don't remember? Q. Is that something you might have said and now don't remember. 433 T 99.16. 434 T 99.17-27. 435 T 113.10-15. 436 T 99.28-100.9. 437 T 65.34-66.2. 438 T 100.15-19. 439 T 101.29-36. -- 78 of 127 -- [2024] SADC 107 77 A. Yeah, could have said it, because that's how I was - if I was feeling like that. I still wouldn't mind breaking his legs. But, you know, I don't do that because I'm, I'm waiting for the, hopefully it goes, you know, the right way and he goes to gaol. 431 KW was also asked about an alleged telephone conversation she had with the accused’s boss on 27 April 2023. It was put to her that she had rung him and said, in relation to these allegations, that she did not care if it wasn’t all true, that she herself had been molested and did nothing about it and someone had to pay for it. She acknowledged making the call but denied saying this and said she had asked to speak to the boss’s wife. 432 As to whether she was biased against the accused, because of her own experiences as a child, KW said:440 A. Nup. I'm doing what I'm doing - my mum should have done, you know, what I'm doing now, but I'm doing what I have to do for my daughter because I don't want this to be like a repeated thing that happens in our families. So what I'm doing now, in by going to court and making him pay for what he's done is for my daughter, [LGF], the 12-year-old girl that was molested by her big brother. 433 Exhibit D26 contains a series of messages exchanged between KW and the accused. Although the date(s) of these messages are not apparent from the document, KW agreed that these were messages exchanged after the messages she sent to the accused on 22 February 2021.441 The messages read: KW I’m wanting to talk to you, face to face, not sure what your saying to your father about me, Of how bad a parent I was to you. What the hell is going on You know you are going to be reported to the police and due to what you have done to a child your going to probably be put on the pedo list, which will mean you may loose your job. JLF Everyone in the family know I’ve always hated you and never loved you. KW Oh okay, well that easy Coz I only have 3 children now, and everyone in My family hate you, your a pedophile, your disgusting. I hate you too. I wonder how [B] and [S] will like you after they find out what you have done to your little sister. JLF Your not threatening to beat [LGF] with a sick again to make her say this. She told me why she ran away KW 440 T 102.1-8. 441 See discussion at [308]-[309] herein. -- 79 of 127 -- [2024] SADC 107 78 What the fuck, you know exactly what you did to her, she told [LF] everything so, that’s why you blocked [ZF], [LF] [LGF] coz she told them everything. [LF] has to make a police report. So yer. Good luck, you’ll end up All alone Coz I’m getting All grandchildren soon, you are not welcome JLF It’s because no one in the family has ever lissend to me so I don’t speak to them. I don’t care I’ve never wanted to be apart of this family I only stayed to protect the kids from you. KW Oh My fucking Lord, you fucked around with your little sister, you filthy peice of shit. [LF’s] wanted to punch you out when his sister told him what you did. You messed up just like your father Go get fucked, pedo 434 KW denied that she had ever beaten or threatened LGF with a stick.442 She denied that she had threatened LGF with a stick to make her say that the accused had abused her.443 Character Evidence Mr Anderson 435 Mr Anderson is the director of a glass company and the accused’s employer. He gave evidence that he had known the accused since he commenced as one of his apprentices in 2018. He said the accused typically worked six days a week and often worked 12-hour days. Although there was some time off over Christmas, it was not unusual for the accused (and staff generally) to be required to work on public holidays.444 436 Mr Anderson described the accused as hardworking and as ‘a good, honest kid’ who was well respected by him, his family, and all the project managers. He was aware of the charges, but this had not changed his opinion of him.445 437 Mr Anderson was also asked about some telephone contact he had with KW. He described a telephone conversation with KW on 27 April 2023 when she called him on a private number. She asked to speak to his wife. When he told her she was not there, KW said to him, ‘I don’t care if it’s not all true. I was molested and did nothing about it’. She had then said, ‘Someone has to pay’. He told her not to call again or he could call the police, and then hung up.446 438 In cross-examination, Mr Anderson said he knew that the person on the phone was KW, as he knew her voice as he had spoken to her previously, about 442 T 105.19-106.12. 443 T 106.16-20. 444 T 202.22-203.11. 445 T 203.12-29. 446 T 203.30-204.24. -- 80 of 127 -- [2024] SADC 107 79 three years earlier, when the allegations came out. At that time, she had told him that she wanted to break the accused’s legs.447 Marie Shaw KC 439 Mrs Shaw KC is a very experienced criminal barrister and a former judge of the District Court of South Australia. She gave character evidence on behalf of the accused, based on her observations of him during his involvement with the Ice Factor program. This was a program she helped to develop with other volunteers to engage with young people who were otherwise disengaged, misbehaving, from disadvantaged backgrounds or similar. 440 Mrs Shaw KC gave evidence that she first met the accused in about 2015 or 2016. He was identified to participate in the Ice Factor program through his involvement with the ‘Wave’ (or ‘Flow”) program at his southern suburbs high school. Ice Factor taught those young people who were selected to participate in it, including the accused, life skills, such as perseverance, respect and sacrifice, as well as developing their love of ice hockey and skating.448 441 Mrs Shaw KC said that when she met the accused, he was withdrawn, sad, unkept and overweight, and was sitting on the bench, rather than on the rink for his ice hockey team. He told her he was not skating as his skates were too small for him, so she sourced him some skates that fit him. 442 She said that the accused remained in the program for three years, during which he was chosen to be the captain of his team. She described this as ‘a testament to the way he’d taken on board the various values that we teach’.449 She said that for the accused to become a leader, he had to demonstrate that he could lead by example and by his support of others, and thereby show he was a positive influence on others. 443 Mrs Shaw KC said such was their confidence in the accused and his values that he was chosen as one of four people to represent Ice Factor at an event at Government House. He was chosen because he had the respect of others at the program, for being known as a good and honest person and for the positive changes he had made to rise above his ‘traumatised background’.450 Notwithstanding she was aware of the charges the accused was facing, this had not changed her opinion of him, namely that he was a good person and an honest person.451 444 Of note is that Mrs Shaw KC was unaware of the accused’s ‘history of drug use’. She said that this was something that was pretty much taken for granted as being ‘the environment in which the children who are in our program come into 447 T 205.25-32. 448 T 194.22-196.7. 449 T 196.2-3. 450 T 196.10-37; T 198.22-34. 451 T 198.35-199.2. -- 81 of 127 -- [2024] SADC 107 80 our program’, being an environment that those at Ice Factor could not control.452 It is implicit from this answer that Ms Shaw KC assumed this to be a product of the accused’s family and social environment. She was not questioned about whether her opinion of the accused would change if she was informed about the extent of his drug use in the years after he left the Ice Factor program, that is, after he effectively removed himself from the environment in which he was brought up with KW and living with RW, an apparent strict disciplinarian. Closing Addresses Prosecution 445 The prosecution case was simply put – this was opportunistic, sneaky offending committed by a trusted, older brother against LGF who was vulnerable not only because of her age and relationship to the accused, but because of the dysfunctional family environment in which the offending occurred. 446 It was submitted that the accused had the opportunity to offend in each of the ways as described by LGF, during the relevant period. 447 LGF’s evidence that during 2020, when she was in Year 7, the accused would sleep in her bed, with her at Kenneth Road was corroborated by KW and ultimately acknowledged by the accused, albeit precisely when he started sleeping in her bed and why, was in contention. 448 Similarly, the accused acknowledged that he did, on occasions, during the relevant period, join LGF in the lounge room, of a morning, on a bed she had made up on the floor. He gave evidence he was alone with LGF at JMT’s house on New Years Eve 2020 and that he slept that night in JMT’s bed. He acknowledged in cross-examination that there were occasions during January 2021, when LGF was staying at RW’s house, that LGF got into his bed, with him and they watched TikToks together. 449 As to the alleged offending in the tent, it was submitted that although LGF’s evidence was that the offending occurred when the tent was set up under the carport for some five days in April 2020, it was clear from evidence given by KW, LF and JMT that the tent was set up regularly at Kenneth Road during 2019 and 2020, including under the carport. As such it was submitted that if the Court could not be satisfied that the accused was at Kenneth Road during that five day period, it could, nonetheless, be satisfied beyond reasonable doubt that LGF was simply mistaken in terms of her pinning this offending to that five day timeframe and that the accused did have the opportunity to offend against LGF in the tent, as alleged. 450 The Court was reminded of what the accused told Officer Williams in the record of interview, namely that he had shared a bed with LGF when they camped outside together. The Court was asked to reject the evidence the accused gave on 452 T 199.3-12. -- 82 of 127 -- [2024] SADC 107 81 this topic, namely that he only ever slept outside on his swag in the garden, near the tent, but never inside the tent, with LGF. 451 It was submitted that the Court could be satisfied beyond reasonable doubt having regard to the totality of the evidence that the accused had the physical opportunity to offend against LGF in each of the ways as described by her. 452 Further, the prosecution case was that the accused facilitated the offending, by providing LGF with both alcohol and cannabis during the relevant period. This evidence was said to demonstrate the nature of the relationship between the accused and LGF during the relevant period, it being one where the accused had a degree of control over LGF’s behaviour and where he could be confident that while he kept providing her with these substances, she would not complain about the offending. Further, it was submitted that the supply of these substances to LGF made it easier for the accused to offend – she would feel tipsy after consuming alcohol and tired and stoned after consuming cannabis. 453 The fact that LGF acknowledged that she would ask the accused to purchase alcohol for her, and that if she was ‘lucky’, he would oblige, was submitted as demonstrating both her state of mind and candour on this topic. 454 LGF gave evidence of one occasion when she recalled the offending had occurred at a time the accused had given her alcohol, that is on the occasion after the Truth or Dare game at the oval. 455 As to cannabis, although she was unable to recall the details, LGF gave evidence that on two or three occasions when the accused had touched her, she had smoked cannabis. She recalled a specific occasion when they smoked cannabis together in her bedroom and said that it made her feel calm and drowsy but she conceded she could not recall much of what happened thereafter. 456 It was submitted that as LGF was prepared to acknowledge these (and other) gaps in her memory, the Court could have confidence in both her reliability and credibility as a witness. She was not a witness who was simply prepared to add detail or elaborate, rather she was careful to only give evidence on those matters of which she had a genuine recollection. She had made concessions where appropriate and would not guess or attempt to give an answer unless she was certain. As such, the Court should not hesitate to find her both an honest witness and a reliable witness, doing her best to tell the truth. 457 It was submitted that LGF’s evidence on these issues was corroborated, in part, by the evidence given by KW and LF. KW’s evidence was identified as that relating to her discovery of the empty spirit bottle, hidden in a bag in LGF’s bedroom. LF’s evidence was that he gave to the effect that although the accused initially smoked cannabis with him in his room, the accused ‘started to take his stuff into LGF’s room’, from which the Court was asked to infer that the accused was smoking cannabis in LGF’s room. -- 83 of 127 -- [2024] SADC 107 82 458 It was submitted that the fact that LGF had been forthright and honest with the Court as to the extent of her drug use should not cause the court to otherwise doubt her evidence on this topic. Further, any suggestion that the reliability of LGF’s evidence should be doubted because of her drug and/or alcohol use could be put to one side, having regard to the detailed evidence she gave as to the specific occasions of offending in her bedroom, when the accused made her touch his penis, in the lounge room and after the Truth and Dare game. It was submitted that while her consumption of these substances made her vulnerable, they did not make her unreliable. 459 It was submitted that LGF’s evidence on the topic of both alcohol and cannabis was clear and unwavering, and further that she was telling the truth when she said it felt to her that he was trying to buy her silence, both by providing her with these substances and otherwise spending money on her. 460 The prosecutor conceded that aspects of LGF’s evidence regarding the offending contained only limited detail. This was said to demonstrate that LGF was neither embellishing nor fabricating her evidence, and that she was only giving evidence about these matters which she genuinely recalled. In this respect, the Court was reminded of LGF’s young age both at the time of the offending and when giving evidence and the fact that what she was asking to do was describe traumatic experiences. As the abuse had occurred so often in similar circumstances, it was to be expected that LGF would have difficulty in differentiating such instances. The language used by LGF both in her prescribed interviews and evidence was said to further demonstrate how difficult it was for LGF to differentiate the many occasions of similar abuse to which she had been subjected. 461 It was submitted that importantly, LGF could identify when the offending had occurred, how old she was, over what period of time she was abused and where the abuse had taken place. She was also able to recall that most of the abuse occurred late at night, when the accused was sleeping next to her and how he acted as if nothing had happened in the morning. 462 In addition to describing the accused’s ‘usual routine’, she had a distinct recollection of aspects of the offending which had a ‘ring of truth’ about them. These included her description of the accused spooning her from behind and bending his knees to push her own legs up, in order to expose her, of his breathing becoming heavier as he was aroused and of the accused having stopped moving his fingers inside her when their mother came into the lounge room. It was submitted that these were all examples of LGF recalling events that had actually happened to her and in extraordinary but sensible detail, telling against her version being either fabricated or imagined. 463 LGF continued to seek out the accused’s company, notwithstanding the alleged offending. The prosecutor reinforced the unusual circumstances of the offending, the accused being a trusted, much older brother, who provided her with -- 84 of 127 -- [2024] SADC 107 83 things she wanted (such as drugs and alcohol) and, during the day, was a completely different person. She was a troubled child, with difficulties both at school and in her relationship with her mother. It was submitted that this was typical of many situations of abuse, she was a child being abused by a person she trusted and from whom there were some benefits in maintaining a connection, notwithstanding the abuse. As she had said, during the day they would pretend as if nothing had happened, as she tried to convince herself that they still had a normal brother/sister relationship. 464 As to the complaint evidence, it was submitted that the fact the first person LGF told about the offending was her friend, JMT, was consistent with her explanation as to why she had not disclosed the offending earlier, as she was concerned not to ruin the family. She then only disclosed the offending to a family member, LF, at his insistence to know why her behaviour was spiralling out of control and in the context of her overdosing on medication. It was suggested that both the circumstances of the initial complaint and its elaboration made sense, having regard to all of the evidence. 465 Insofar as it was to be suggested that LF and KW were prepared to say anything in order to secure a conviction, the prosecutor submitted that a close analysis of the evidence told to the contrary. Neither LF nor KW had sought to embellish their evidence (for example, neither said they saw LGF and the accused sleeping together in the tent, KW never said she saw the accused give LGF alcohol, LF never said he saw LGF and the accused smoking cannabis together). It was argued that this was simply not a case where LF and KW had provided fabricated evidence to bolster LGF’s allegations. 466 The prosecutor submitted that the Court should find that the accused was neither a reliable nor credible witness, such that it could safely conclude that there was no reasonable possibility he was telling the truth when he denied the offending in his evidence. 467 The Court was asked to carefully consider the evidence he gave with respect to the messages exchanged between him and both KW and LGF as of 22 February 2021. It was submitted that the only reasonable conclusion that could be drawn from the accused’s failure to reply to KW’s messages on 22 February 2021, but then send the ‘I’m sorry’ message to LGF on 3 March 2021, was as an implied admission of the offending. He knew when he received the messages on 22 February that LGF had told their mother what he had done to her and when he sent the ‘I’m sorry’ message he was apologising to LGF for sexually offending against her. It was submitted the Court should reject the accused’s explanation, namely that he was simply apologising for driving a wedge between LGF and KW for what had happened at RW’s house and for insisting LGF abide by RW’s rules, as being completely at odds with the plain meaning of what was written. 468 Further, it was submitted that tellingly, rather than emphatically deny the offending during the record of interview, when asked about it, all he could say was -- 85 of 127 -- [2024] SADC 107 84 ‘I got nothing for you’. He had not denied the offending in the text messages, nor seen fit to raise, at any stage, in those messages, anything about the alleged abuse he claimed to have suffered at KW’s hands, despite her calling him a ‘pedo’. 469 Notwithstanding the good character evidence given in support of the accused, it was submitted that the Court should reject the accused’s evidence. It was submitted that the Court should find that LGF was a compelling witness who had only told the Court what she could remember, in circumstances where she had tried her very best, but could not, keep the abuse a secret any longer, notwithstanding the impact it would have on her family. Defence 470 Counsel for the accused submitted that there were numerous reasons why the Court should have a reasonable doubt as to both the reliability and credibility of LGF’s evidence, and that given by KW and LF, such that it could not be satisfied of the accused’s guilt as to any count. 471 At the outset, it was submitted that it had been demonstrated that LGF had a history of acting dishonestly, such that the Court should have significant doubts as to her credibility. Although LGF initially denied that she had ever consumed ‘shrooms, she then gave detailed evidence during which she admitted to having done so, and to having stolen them from a friend’s house. It was submitted that this was a specific example of LGF simply being dishonest when initially questioned on that topic. However, her dishonest behaviour was not isolated - she had also admitted drinking alcohol stolen from a friend’s mother and had bragged on social media about having stolen other items. 472 It was submitted if, in any event, the Court considered LGF to be a credible witness, it must have doubts as to her reliability of her evidence for several reasons. LGF was a troubled girl who had struggled with mental health issues, to the extent that she had been engaging in self-harm, since grade 4. She had a history of alcohol and drug use, including the consumption of ‘shrooms, including, on her evidence, consuming ‘shrooms on a night when the accused was staying at Kenneth Road. During her first prescribed interview, LGF had stated:453 I wasn’t sure if I was dreaming, but like I think back on it now and I definitely know I wasn’t dreaming. 473 It was submitted that it could not be excluded s a reasonable possibility that dure to this combination of matters, LGF may have a genuine, but mistaken, belief that the offending had occurred, with that belief continuing to develop as time progressed. 474 Counsel for the accused emphasised the shift in the evidence of LGF as time progressed. At the outset of the first prescribed interview when asked what had happened when the accused touched her, LGF’s response was simply, ‘I’ve woken 453 First LGF interview at p 42, line 2041. -- 86 of 127 -- [2024] SADC 107 85 with my hand in his bra once … and he’s tried fingering me once ... and he made me touch him there.’454 She was unable to recall when was the first or last time the abuse had occurred, despite the offending having occurred in close proximity to the prescribed interview. She could only remember ‘a couple of times’.455 However, as the interview progressed, LGF’s description of the offending had expanded exponentially, such that she then recalled the accused fingering her ‘every night’ that he was in her bed and said this happened up to 14 times.456 475 It was submitted that as time passed, LGF’s version of events was such that she alleged the accused had offended against her at virtually every available opportunity. 476 The Court was reminded that in the first prescribed interview, LGF told Officer Kittel about playing Truth or Dare with the accused and of him asking her questions of a sexual nature. However, she made no mention of the alleged abuse alleged to have happened thereafter, on her bed, when Sadie was present, until this was first disclosed during her evidence-in-chief. There was no evidence from Sadie, or indeed from any witness to confirm that there was ever a time that Sadie had stayed over at Kenneth Road. In these circumstances, the Court was urged to reject LGF’s account of what was such brazen offending. 477 Further, when giving her evidence-in-chief, LGF was not certain whether the offending had continued after her initial complaint to JMT. However, in cross- examination, she then gave evidence, for the first time, about the alleged offending on New Years Eve and at RW’s house (that is, after the complaint to JMT). It was submitted that LGF had simply identified potential opportunities for the accused to have offended and then attributed offending to him. 478 As a general proposition, it was submitted that LGF’s behaviour towards the accused – that is, continuing to confide in him, reaching out for him to come to see her when she ran away and then choosing to live with him and RW thereafter for a period of time instead of staying at JMT’s house, all told against the veracity of the allegations. More specifically, it was submitted that it was simply implausible that LGF would choose to deliberately get into bed with the accused at RW’s house, if he had been abusing her regularly in similar circumstances over the previous months. The Court was further reminded that LGF was quite clear that her decision to leave RW’s house had nothing to do with the alleged abuse and was due to her not coping with RW’s discipline. 479 The Court was urged to carefully consider the evidence LGF gave during the first prescribed interview as to how the accused was able to finger her when they were spooning. It was submitted that rather than her evidence on this issue being compelling, LGF had, at first, said that the accused had placed his hand over her legs, and thereafter changed her evidence to say the accused had lifted her legs and 454 First LGF interview at pp 6-7, lines 280-288. 455 First LGF interview at pp 32-33, lines 1528-1584; p 7, lines 295 and 299. 456 First LGF interview at p 8, line 359; p 48, lines 2305 and 2309. -- 87 of 127 -- [2024] SADC 107 86 put his hand between them. Further, LGF had described the accused breathing heavily during the offending generally, rather than having a distinct recollection of his breathing changing during the alleged incident when he made her touch his penis. 480 It was submitted that when the Court carefully considered the evidence given by KW and LF, it should be satisfied that the evidence they had given was neither credible or reliable and did little, if anything, to corroborate LGF’s claims. 481 Both LF and KW were said to be biased against the accused and determined to see him convicted for the offending. 482 As to KW, that bias had been demonstrated by the content of her two telephone discussions with Mr Anderson (whose evidence on such topics was unchallenged), namely that she wanted to break the accused’s legs (a conversation not denied by KW) and that she did not care if the allegations were not all true. 483 Aspects of KW’s evidence was said to be at odds with all of the other evidence. For example, KW denied encouraging LGF to use cannabis, whereas the evidence demonstrated that she had made a bong for LGF out of a pump soap and laughed when she was found to have cannabis in her school bag. KW denied ever giving LGF alcohol, when LGF gave evidence to the contrary. 484 It was submitted that, carefully considered, KW’s evidence did not corroborate LGF’s evidence on any aspect that was in fact in dispute. There was no dispute that the accused slept in the complainant’s bed at times or that they would., at times, be together, on a bed she had made up on the floor, watching television in the lounge room. 485 However, on matters that were in dispute, KW’s evidence did not go as far as was purported. For example, the fact that KW said she found an empty spirit bottle in a bag in LGF’s bedroom, absent further evidence from LGF, did not advance the prosecution case that the accused supplied alcohol to LGF. KW’s evidence as to observing the accused and LGF in the lounge room one morning, watching television together, was consistent with the accused’s evidence on this topic. The fact KW (or LF or JMT) had described a tent being erected at Kenneth Road on various occasions, including under the carport and that tent being up for a period of several weeks at a time, was irrelevant in circumstances where LGF gave unambiguous evidence that the alleged offending in the tent occurred over a specific five-day period in April 2020. All of the evidence demonstrated the accused was not at Kenneth Road during that five-day period. 486 It was submitted that both KW and LF had tailored their evidence, particularly with respect to the length of time during which the tent was up, to support LGF’s evidence. 487 It was submitted that LF was plainly a dishonest witness who had demonstrated his willingness to tell lies to the Court. This was said to be best -- 88 of 127 -- [2024] SADC 107 87 exemplified by LF’s attempt to blame the accused for giving alcohol to LGF at her 13th birthday party, in circumstances where he ultimately conceded that it was his alcohol provided to LGF. Similarly, he denied ever supplying cannabis to LGF or smoking cannabis with her when she had given evidence to the contrary. The Court was also reminded of the documented evidence of LF’s involvement in the drinking game, beer pong, in circumstances where he had claimed to despise alcohol. 488 As such, the Court was urged to be cautious in accepting the evidence of either KW or LF insofar as it was relied to support LGF’s evidence as to the offending. 489 Counsel for the accused also made detailed submissions as to why the prosecution case that the accused had groomed LGF, ought be rejected, which submissions I will address in more detail hereunder. Similarly, counsel outlined why the Court should accept the accused’s evidence as to his understanding of the various text messages, and why and when he replied to those messages. I will address those submissions in detail hereunder, together with those addressing the specific issue as to whether the accused’s responses (or lack thereof) constituted any implied admission of the offending. 490 It was submitted that in circumstances where the accused had steadfastly denied the alleged offending and was demonstrated to have been of prior good character, the Court could not reject his denial of the offending, on the basis of it not being a reasonable possibility. Even if the Court reached that conclusion, it was submitted there was simply insufficient reliable evidence to prove the accused’s guilt beyond reasonable doubt with respect to any of the four counts. Consideration and Analysis of the Evidence Implied Admissions 491 Before turning to my assessment and analysis of the evidence given by each witness, I will deal briefly with the evidence of the text messages exchanged between the accused and KW and the accused and LGF, in the period commencing 22 February 2021. 492 The text messages were admissible on the prosecution case as it was arguable that the accused’s failure to respond to those messages by way of a positive denial of the offending (in the context of him also sending the ‘I’m sorry’ message to LGF on 3 March 2021), constituted an admission, or admissions, by silence. 493 The accused admitted sending and/or receiving the relevant text messages. He gave evidence as to what he understood those messages meant, and why he responded in the way he did. I have outlined by assessment of that evidence in some detail below. For the reasons outlined, I am not satisfied as to the credibility or reliability of the accused’s evidence on this topic. -- 89 of 127 -- [2024] SADC 107 88 494 However, whether an inference by silence can be drawn of the type as urged by the prosecution, depends on a number of factors. These include questions such as whether the accused understood what was being said and whether the facts contained in the relevant statements were within his personal knowledge. Are the circumstances such that as a matter of commonsense and ordinary experience, one would expect the accused to have responded to the messages by way of dissent?457 495 Notwithstanding my doubts as to the explanations given by the accused, I am not satisfied that the messages sent to the accused by KW on either 22 February or 10 March 2021 are sufficiently clear in their terms as to disclose the alleged offending. As such, I am not prepared to draw the inference as sought by the prosecution, either from the fact the accused did not reply to KW’s messages on 22 February 2021 or the way he responded to KW’s message sent on 4 March 2021. 496 The ‘I’m sorry’ message was sent a considerable period after the messages sent by KW to the accused on 22 February 2021. There was no evidence as to what, if anything, occurred in term of contact between KW and the accused in that period. The accused did not see LGF in person during that period, but there was no evidence as to whether they communicated in any other way. 497 In these circumstances, notwithstanding my concerns as to the accused’s evidence, I am not satisfied that this message constitutes an implied admission of any of the alleged offending by the accused. 498 The message sent by KW to the accused on 11 March 2021, wherein she specifically accused him of having inserted his finger in her vagina, and the messages sent by LGF to the accused in Exhibit P10, were, on the accused’s evidence, all received by him after he spoke to Uncle Dean and learned of the allegations. In that context, I am not satisfied that the accused ought to, as a matter of ordinary human experience, responded to any of these messages with a denial. I am not prepared to infer any implied admission, either from the accused’s failure to respond to KW’s message sent on 11 March 2021 or the way he responded to LGF’s messages. 499 I remind myself that the statements made by KW and LGF cannot be used as evidence of the truth of the matters stated therein. Character Evidence 500 Before turning to my analysis and assessment of the accused’s evidence, it is important I deal first with the evidence of both Mr Anderson and Mrs Shaw KC. 501 I accept the evidence they both gave as to what they thought of the accused’s character, including his honesty. I also accept their evidence as to what they understood to be other people’s understanding of the accused’s character. 457 R v Spencer [2019] SASCFC 70 at [35]-[38]. -- 90 of 127 -- [2024] SADC 107 89 502 I am mindful that such evidence is important in my assessment of the credibility of the accused’s denial of guilt and in considering whether, in such circumstances, the prosecution has satisfied the high onus of proving that he did, in fact, commit any of the offences as charged.458 503 However, as to Mrs Shaw KC, her involvement with the accused was several years prior to the alleged offending. She knew him while he was involved with the Ice Factor program and on the accused’s evidence, he had only limited involvement with anyone at Ice Factor after he finished playing ice hockey in 2017. She acknowledged she was unaware of his drug use at that time. 504 As to Mr Anderson, although his observations were made at the time of, and subsequent to, the alleged offending, he gave no evidence as to what he knew, if anything, of the accused’s acknowledged regular drug use. That drug use included not only cannabis every night after work, but the use of other drugs such as acid and MDMA. 505 The possession of such drugs is, itself, an offence, meaning this is not a case where the accused is of entirely unblemished character. 506 Further, as has been recognised by other courts, sexual offending by adults of previously unblemished reputations, and who otherwise appear to be of impeccable character to those who seemingly know them well, is all too frequent. Accused’s Evidence 507 Although the accused bears no onus, it necessarily follows that for me to be satisfied beyond reasonable doubt of the accused’s guilt, I must reject the accused’s denials of the alleged offending, as not being a reasonable possibility. 508 Although I did not have the benefit of seeing the accused give evidence and therefore of observing his demeanour and tone, I have carefully read his evidence. 509 I have had the opportunity of observing the audiovisual record of the accused’s interview with police. 510 After carefully considering this material, I have significant concerns as to the to the reliability and credibility of the accused’s evidence on several important topics. Those concerns are such as to cause me to reject his denials of the alleged offending as not being a reasonable possibility. 511 In my view, the accused attempted to tailor his evidence to limit the potential for the alleged offending to have occurred, to meet the allegations and to deflect attention from him onto others, by way of the damning evidence he gave to try to discredit his mother, in particular. There were also several inconsistencies in his evidence on critical topics, which I will outline in more detail hereunder. 458 In assessing this evidence, I direct myself in the terms as outlined at [56] herein. -- 91 of 127 -- [2024] SADC 107 90 Opportunity to Offend 512 There was no dispute that the accused had the opportunity to offend in the manner as alleged, save and except for the alleged offending in the tent.459 However, a careful analysis of the accused’s evidence demonstrates that he was endeavouring, wherever he could, to present a version of events which limited that opportunity, with the result being that much of his evidence given on this topic was inconsistent and contradictory. 513 The accused gave evidence-in-chief that he usually finished work on a Saturday at either 4:00pm or 5:00pm and he would visit Kenneth Road thereafter and stay the night. He explained that in 2020, he was using a lot of cannabis and using acid probably every two weeks to a month. He said he used these drugs ‘a lot’ at Kenneth Road, because he could not do this at Ethelton, as RW was too strict. He described smoking cannabis pretty much every night and said that he had a low tolerance, such that after taking a cone, he would usually fall asleep. He and LF would smoke cannabis together. He would also ‘get on’ acid with LF. This would make him laugh and sometimes he would not sleep at all thereafter. 514 Later, when endeavouring to explain why he moved from sleeping in the lounge room, to LGF’s bedroom, the accused gave evidence that he normally went to bed at 9:00pm because he was tired from work. He explained the difficulty he had sleeping in the lounge room because of the noise emanating from KW’s card games in the adjacent kitchen. 515 It is difficult to reconcile this evidence, that is, that the accused took himself to bed so early when he visited Kenneth Road and then had difficulty sleeping because of the noise, with what he told Officer Williams namely that he would use cannabis pretty much every night, at Kenneth Road which would cause him to fall asleep, and/or, that he would use acid every two weeks to a month, and as a result would then be awake all night. As to the latter, in cross-examination, the accused gave evidence, apparently inconsistent with what he told Officer Williams, that he only used acid for a couple of months during 2020. 516 In cross-examination, the accused gave evidence that he usually finished work between 4:00pm to 6:00pm on a Saturday. He said that he would generally arrive at Kenneth Road at about 7:00pm, but not until around 8:00-8:30pm if he went home first after work to shop or do chores. When he got there, he would usually go and hang out with LF in his room, smoke cannabis and go to bed and he smoked cannabis with LF every time he went to Kenneth Road. 517 Again, it is difficult to reconcile this evidence with the accused’s evidence that when he visited Kenneth Road, he usually went to bed at 9:00pm because he was tired from work. It seems implausible that the accused would make the lengthy 459 T 238.14-25. -- 92 of 127 -- [2024] SADC 107 91 journey from Ethelton to Kenneth Road, every second or third Saturday night, to simply spend 30 minutes to an hour up and awake, before heading to bed. 518 My impression was that by this evidence, the accused was attempting to demonstrate that his time at Kenneth Road was spent mostly with LF, or sleeping, such that there was little opportunity for the alleged offending to have occurred. 519 The accused gave evidence-in-chief that LGF would ask him to watch movies with her on a laptop in her bed at Kenneth Road, once every two months or so, late at night. He said he would fall asleep, ‘most of the time’ when they did this and he would be asleep, within 10 to 30 minutes of the movie starting. This appeared to be the accused’s explanation for why it was that he would sleep with LGF in her bed and why he would still be there in the morning, and to counter any suggestion that while he was awake in her bed, and she was asleep (or pretending to be), he would abuse her. 520 However, this evidence is difficult to reconcile with the accused’s later evidence, that when he slept in LGF’s bed with LGF, he would sleep about 500 mm away from her, give her a hug goodnight and then let go. 521 The accused gave evidence that LGF was only there about half of the time that he stayed at Kenneth Road as she was often sleeping over at a friend’s house. LGF was not cross-examined specifically on this issue but bearing in mind her age and the evidence she gave about her various friendships, I accept that it is more likely than not that there were times that the accused stayed at Kenneth Road, and LGF was staying elsewhere. 522 However, the accused also gave evidence that ‘quite a lot’ of the times that he visited, LGF would sleep in KW’s room. At no stage was LGF ever questioned on this topic, nor was KW. Given that LGF was aged 12 during 2020 and, on her own evidence, regularly consuming alcohol and drugs, going to parties and had her own somewhat strained relationship with her mother, I simply do not accept this evidence. I am satisfied that by this evidence and that relating to the frequency with which LGF was absent overnight from Kenneth Road, the accused was endeavouring to present a version of events which minimised the opportunity he had to offend against LGF in her bedroom. Sleeping Arrangements 523 I have carefully considered what the accused said in his record of interview as to his sleeping arrangements at Kenneth Road and the later evidence given by him on this topic. Having done so, I have found some seemingly minor, but nevertheless important, differences in that evidence. 524 When Officer Williams first asked the accused where he slept when he stayed at Kenneth Road, he responded, ‘it was lounge room, camping outside, [LGF’s] -- 93 of 127 -- [2024] SADC 107 92 room and sometimes mum’s room but very rarely’.460 When asked if he and LGF had ever slept in the same bed, his initial response was, ‘When we camped outside together’. He was then asked if they had slept in the same bed inside and responded yes. 525 In cross-examination, the accused initially denied ever sharing a bed with LGF when he camped outside with her. The explanation he then gave as to why he had said the contrary when interviewed by Officer Williams, is reproduced at paragraph 388 herein. I do not accept that explanation, which on its face, simply makes no sense. 526 When the accused was interviewed by Officer Williams, it was never put to him that there was any allegation relating to offending in the tent. However, by the time he gave his evidence, he knew about that allegation. I am satisfied that when the accused gave his evidence, that the evidence he gave on this topic was tailored in an attempt to render LGF’s account of any offending in the tent impossible. 527 When the accused’s evidence as to where he slept inside at Kenneth Road is carefully analysed, it is apparent that this evidence evolved as his evidence progressed. By way of summary, the accused’s evidence-in-chief on this issue was: 1. He usually slept on the spare mattress in the lounge room, until KW threw that mattress out in mid-2020. 2. If LGF was not home, and staying at a friend’s house, which was often, he would sleep in her bed. 3. Very occasionally, he would sleep in KW’s bed, after coming home after a night out with his friends. 4. Once the mattress got thrown out, he started bringing over his swag. He initially slept on the swag in the lounge room but then moved it onto the floor in LGF’s room because of the noisy card games going on in the kitchen, the cold tiles in the lounge room and the fact there was nowhere else for him to sleep. 5. He would fall asleep in LGF’s bed, if she asked him to watch a movie in bed with her. He would be asleep within 10 to 30 minutes and stay asleep until the morning. 528 When considered in isolation, this evidence suggests that the accused only ever slept in LGF’s bed with her on those occasions that she asked him to watch a movie with her, in her bed. It further suggests that the reason the accused moved his swag from the lounge room to LF’s room was because of the noise and the cold tiles in the lounge room. The evidence was also to the effect that during 2020, 460 MFI P30 at p 11, lines 491-492. -- 94 of 127 -- [2024] SADC 107 93 LGF was rarely sleeping in her bed, as she was either staying at a friend’s house, or sleeping in the lounge room or sleeping in KW’s room. 529 When the accused was asked in cross-examination why he chose to sleep in LGF’s bed with LGF, he said:461 Because I am against sleeping with [KW] for reasons I’ve already stated and [LF] and his girlfriend are constantly having sex, so I don’t want to sleep with them. 530 Importantly, he did not say that he only chose to sleep in LGF’s bed, with LGF, because he was in her bed, watching a movie with her and fell asleep. 531 In addition, the evidence he then gave, in cross-examination, about what clothing he and she would wear when they slept in the same bed, the fact this occurred during winter and summer, and the numerous times KW came into the room after he had slept in LGF’s bed, with her, suggests this occurred much more frequently than ‘once every two months or so’, when he was watching movies with LGF in her bed. 532 The accused gave evidence in cross-examination, that when he forgot to bring his swag with him, he would sleep in LGF’s bed, and that this occurred regularly, and up to 14 times. The accused’s evidence was that he only started bringing the swag over to Kenneth Road after the mattress was thrown out in mid-2020. Even if on some of those occasions LGF was sleeping at a friend’s house, this evidence strongly suggests that the accused slept in LGF’s bed, with LGF, more than once every two months or so, when she invited him into her bed to watch a movie. 533 I have no confidence in the credibility or reliability of the evidence the accused gave on this topic. I am satisfied that he was trying, unsuccessfully, to tailor his evidence to suggest it was only on very rare occasions that he slept in LGF’s bed and then only at her insistence, to watch a movie together, being a factor relevant to the opportunity he had to offend in her bed in the way she described. 534 I make it clear that I have only used this evidence in assessing the reliability and credibility of the accused’s evidence and on the issue of opportunity – I have not engaged in any propensity reasoning, noting that the evidence that the accused slept in LGF’s bed was not admitted for a permissible use that relied upon a particular propensity or disposition of the accused as circumstantial evidence of a fact in issue. Relationship with KW 535 The accused gave evidence that he never considered KW to be his mother and maintained that she had subjected him to vile abuse as a child. On his evidence, he kept visiting Kenneth Road as it was the only opportunity he had to see and 461 MFI P33 at T 422.13-16. -- 95 of 127 -- [2024] SADC 107 94 spend time with his siblings. He claimed he only acted friendly towards KW so she would not throw tantrums. 536 It was quite clear that by his evidence, the accused was endeavouring to paint his mother as some kind of monster, who had sexually abused him, physically abused both him and LGF and spent most of her time drinking and doing drugs. Using his words, it was KW’s ‘dream to make me suffer’.462 Indeed, the incredibly poor relationship between the accused and KW was a prominent feature in his evidence. 537 It is therefore somewhat surprising that the accused made no mention at all in the record of interview of the poor relationship he had with his mother, or when he was questioned about whether he had anything to say about the allegations, did not mention the belief he apparently held that his mother was forcing LGF to say these things about him. 538 When asked by Officer Williams how it was when he visited Kenneth Road, he said that it was really good and that he enjoyed it.463 The fact he continued to visit there, despite the very long hours he worked, and the fact he lived so far away, demonstrates that he must have enjoyed those visits. While I do not doubt the accused sought to maintain a relationship with both of his siblings after he ceased living with them, he in fact said he had a poor relationship with both LF and LGF until after they stopped living together. It must also be remembered that in 2020, the accused was aged around 22. LGF was 12 and LF only turned 17 in June 2020. The accused was a much older sibling, working and at a different stage of his life to his younger siblings. He drove and therefore had the ability to see his siblings, should he wish to do so, in circumstances other than staying at the house where his mother lived. The fact he continued to visit Kenneth Road with so much regularity, notwithstanding his claimed hatred (my word) of KW, is, of itself, unusual. 539 On this note, the accused endeavoured to present a version of events that he maintained contact with his siblings, but, in particular LGF, to ensure that they were okay, having regard to what a terrible mother and role model KW was because of her drug (and alcohol) use. However, by his own evidence, the accused spent most of the time he was at Kenneth Road, consuming drugs with LF (or sleeping). 540 Further, the accused gave evidence that when he was at Kenneth Road, LGF would take sips from the alcohol that KW had supplied to him. I am satisfied that by the evidence he gave on this topic,464 the accused was describing playing card games with KW in the kitchen, approximately once a month, during which he and KW would consume alcohol supplied by KW, again being inconsistent with the fraught relationship he claimed to have with her. 462 MFI P33 at T 389.16. 463 MFI P30 at p 8, line 400. 464 MFI P33 at T 461.7-462.9. -- 96 of 127 -- [2024] SADC 107 95 541 The accused also described KW regularly coming into LGF’s bedroom, when they were in bed together, of a morning, and enquiring of them whether they wanted food or drink or wished to accompany her somewhere. He agreed that this behaviour did not sound ‘awful’. There was the detailed evidence relating to KW driving back to Ethelton to return the laptop the accused had previously left at Kenneth Road, and then spending time with him at the beach eating hot chips. While LGF accompanied KW on this outing, this evidence does not sit well with the accused’s claim that KW was intent on making him suffer. 542 Further, the endearing language used by KW in Exhibit D23, namely, ‘Good morning beautiful’, paints a very different picture of KW to that the accused intended to portray by his damning evidence of her. I reject the accused’s explanation for her use of this language as simply being KW’s way of manipulating people. 543 The fact that KW was the only person from his immediate family that the accused did not block on social media after the allegations made by LGF came to light is also seemingly inconsistent with his evidence about the general nature of their relationship. 544 I note that the accused did send a text message to KW wherein he stated, ‘Everyone in the family know I’ve always hated you and never loved you’.465 However, this message was sent after the allegations came to light and in the context of a series of messages wherein he accused KW of having beaten LGF to make up false allegations against him. 545 I am mindful that Mr Anderson gave evidence, which was not challenged, that prior to these allegations being made, the accused told him that KW had sexually abused him as a child. On its face, this lends some support to the accused’s allegations on this specific issue. This is not a trial about any alleged abuse of the accused committed by KW. However, the reason the accused gave, during his evidence, for not reporting these allegations to police when he was an adult, was because he was trying to look after his family. When asked what he meant by that, he said, ‘Keep the family together in one unit’.466 546 The accused first reported these allegations to police during the trial conducted before me in June 2024. The family unit had well and truly fallen apart by the time of the first trial in 2022. Indeed, it fell apart when LGF’s allegations against the accused came to light in February 2021. As such, I do not accept the accused’s evidence as to why he did not report his alleged abuse by KW earlier, as an adult. 547 I do accept that there were reasons, other than any alleged sexual abuse by her, for the accused to resent or otherwise not think fondly of KW as a person. 465 Exhibit D26. 466 MFI P33 at T 459.33-34. -- 97 of 127 -- [2024] SADC 107 96 I accept it is likely that that KW’s capacity to provide both financial and emotional support to the accused, over time, has been compromised by her drug use. 548 I accept the accused’s evidence that KW requested he move out of the family home when he turned 18 and that this related to the fact that she was no longer receiving Centrelink payments for him. One could not blame the accused for feeling rejected and unloved by KW as a result, and angry at her every day he made the long trek by public transport to attend school after leaving home. 549 However, I am satisfied that by his evidence, the accused exaggerated the negative aspects of his relationship with KW in order to paint a picture to discredit her in terms of her reliability and credibility as a witness or, potentially, to suggest she was the source of the allegations. While the latter was not ultimately an argument developed by counsel for the accused, the accused’s evidence was very much focussed on putting forward such a version of events. Drugs and Alcohol 550 There were numerous inconsistencies in the evidence the accused gave, and what he told Officer Williams, about his use of drugs and alcohol. 551 The accused told Officer Williams that he used both acid and cannabis a lot at Kenneth Road and he did that because he could not do it at RW’s place as she was too strict. He also said he consumed acid probably every two weeks to a month. 552 When giving evidence, the accused acknowledged using drugs other than cannabis at Kenneth Road, but claimed he used acid and MDMA rarely. This latter evidence was given in response to a question asked by the trial judge seemingly prompted by the apparent inconsistency in the accused’s evidence that he was so tired from working that he usually went to be at 9:00pm at Kenneth Road, and what he had previously told the police about taking acid at Kenneth Road and then not sleeping at all.467 553 In cross-examination, the accused gave evidence that he was only using acid for a couple of months during 2020, being, on its face, expressly inconsistent with what he told Officer Williams. 554 In addition, he gave detailed evidence about his regular drug taking at RW’s house, including acid, said to be possible because he set his alarm to wake up at 2:00am and claimed to keep a bong on a shelf in his bedroom at Ethelton. He also described consuming cannabis ever night after work. As the accused lived at RW’s house, the only way this evidence can be interpreted is that he consumed cannabis on a nightly basis while living at RW’s house. This evidence simply cannot be reconciled with what the accused told Officer Williams on this topic. It also sheds doubt on the accused’s claims that he was concerned to impress upon LGF the 467 MFI P33 at T 370.25-27. -- 98 of 127 -- [2024] SADC 107 97 necessity to maintain the peace at RW’s house, by sticking to the rules RW had put in place. By his own evidence, the accused was regularly flouting those rules. 555 I reject the accused’s evidence that he never smoked cannabis in LGF’s room, being contrary to both LF’s evidence and LGF’s evidence on that topic (discussion hereunder) which I do accept. Given that the accused smoked cannabis every night, and his own admission that he did not want to be in LF’s room (because LF and his girlfriend were in there together) and he was sleeping in LGF’s room, I consider it more than likely and find that during the latter half of 2020, the accused regularly smoked cannabis in LGF’s room. 556 Further, I reject the accused’s evidence that he never gave LGF cannabis or alcohol, as being contrary to LGF’s evidence on this topic, which I do accept (discussion hereunder). The Text Messages 557 Near the start of the record of interview, Officer Williams informed the accused that he was investigating an allegation made against the accused of persistent sexual exploitation of LGF. He asked the accused what he could tell him about that matter. In response, the accused said that in about February 2021, he heard from his mother that he had a sexual relationship with LGF on New Years Eve 2020. He said that he then contacted LGF to ask her what had happened and found out that there were multiple times.468 558 When giving evidence-in-chief as to his understanding of the various text messages exchanged with KW as of February 2021, the accused explained: • That when KW sent him the two messages on 22 February 2021,469 he did not know what they were about. • When he sent LGF the ‘I’m sorry’ message on 3 March 2021, he was apologising for the way he had treated her at RW’s house, for not taking her side and for sticking up with RW as to discipline. • When he received the message from KW on 4 March 2021,470 he was unaware of the allegations against him. He did not know what this message was about, but thought it somehow related to the ‘I’m sorry’ message he had sent LGF. • He first found out about the allegations during a conversation he had with his Uncle Dean on 10 March 2021. 468 MFI P30 at lines 217-234 and lines 257-301. 469 Exhibit P22 at p 1. 470 Exhibit P22 at p 2. -- 99 of 127 -- [2024] SADC 107 98 • He sent a message to KW on 11 March 2021,471 so that he could find out from her, what he was being accused of. • He had sent the messages in Exhibit P10 to LGF during the period March to May 2021, as he knew he had been accused of having touched LGF on New Years Eve, having regard to the fact that KW’s message dated 4 March referred to what had occurred at JMT’s house. 559 In cross-examination, the accused’s evidence as to his understanding and explanation for these messages differed in a subtle but important way, insofar as he said he was ‘pretty sure’ he sent LGF the messages in Exhibit P10 after he had spoken to Uncle Dean. However, he said he had not questioned LGF in those messages about what she meant by multiple times, because at that point he was led to believe he was only getting accused for one occasion (New Years Eve). 560 This evidence simply cannot be reconciled with the evidence he gave in chief that he only learned of the allegations after speaking with Uncle Dean and that Uncle Dean had told him there were multiple occasions of alleged abuse, not simply one alleged incident on New Years Eve. 561 Further, the evidence the accused gave in chief, that he knew he was being accused of having touched LGF on New Years Eve having regard to the message KW sent on 4 March, is difficult to reconcile with his earlier evidence that on receiving that message, he did not know what it was about. The accused’s evidence-in-chief was that he thought that message related to the apology he had sent to LGF because he had caused a wedge between KW and LGF by facilitating her stay at RW’s. That, in my view, is simply implausible, having regard to the words used by KW in that message (ie ‘what you did to your little sister ... how disgusting … getting her drunk so you can do things to her’). 562 Further, the accused gave evidence that he saw LGF, in person, on 9 February 2021 but did not say sorry to her then about what had happened at RW’s house, as she did not seem to be affected by the fact he had been angry at him at RW’s house. As to when she it seemed to have affected her, he said, ‘When she started making up stories’. The accused sent the ‘I’m sorry’ message on 3 March 2021. On all of the evidence given by him, he was unaware of the allegations until at the earliest, on 4 March when he received KW’s message of that date, or on 10 March when he spoke to Uncle Dean. As such, on the accused’s evidence, he did not know that LGF was ‘making up stories’, until after he sent the ‘I’m sorry’ message. 563 I simply do not believe the evidence the accused gave on the topic of the text messages. This has therefore caused me to have significant concerns as to the reliability and credibility of his evidence. I have used this evidence only in my assessment of the accused’s reliability and credibility. As outlined above, I have not used either what he said, or did not say, in these text messages, as any implied 471 Exhibit P22 at p 2. -- 100 of 127 -- [2024] SADC 107 99 admission by the accused. Nor have I utilised any consciousness of guilt reasoning, noting that the prosecution expressly disavowed any reliance on this evidence, or indeed any evidence, as indicative of a consciousness of guilt. The Alleged Offending 564 The abovementioned inconsistencies and anomalies cause me to have significant concerns as to the credibility and reliability of many aspects of the accused’s evidence, thus affecting my overall assessment of his reliability and credibility. 565 However, I also have concerns about the way the accused responded to police when the allegations were put to him and aspects of the evidence, he gave which related specifically to occasions of alleged offending. 566 When the accused was informed of the details of the allegations by Officer Williams, he did not respond by way of an emphatic denial. Indeed, when asked whether he had anything to say about those allegations, his response was, variously, ‘nothing’ or ‘I don’t have nothing for you’. It was only when Officer Williams specifically asked the accused whether certain things had happened, that he said no. 567 Further, during the record of interview, the accused told Officer Williams about his understanding that he was alleged to have put his fingers inside LGF when he was with her at JMT’s house on New Years Eve 2020. When describing this, he said ‘I yeh I have no memory of that’, rather than categorically denying ever having done such a thing.472 568 I accept that the overall effect of what the accused told Officer Williams amounted to a denial of the allegations as put to him at that time. However, the accused’s demeanour and the language used by him was remarkably casual and calm, notwithstanding the very serious nature of the allegations being made against him, involving his own little sister. 569 The accused gave evidence that LGF slept in the lounge room multiple times during 2020. He gave specific evidence of an occasion, one morning, when he was in the lounge room at Kenneth Road with LGF watching ‘Big Mouth’ on television. He described them both sitting on the bed that she had made up on the lounge room floor such that his back was resting on the couch behind him. He claimed to have a specific memory of KW walking through the lounge room on this occasion, making a coffee and then going outside to smoke a bong. He recalled that he and LGF got up once the episode finished and went outside with KW. 570 In response to specific questioning from the trial judge, the accused said it was not uncommon for him to watch television in the lounge room at Kenneth Road with LGF. As to why he remembered this occasion he said ‘Because [KW] 472 MFI P30 at lines 920-951. -- 101 of 127 -- [2024] SADC 107 100 came through the lounge room’. When it was suggested to him that KW would have walked through the room on other occasions he said, ‘No, most of the times it was later in the day’. The accused then gave evidence that the only other times he had sat on a bed on the floor in the lounge room, with LGF, watching television, was at nighttime. 571 When this evidence is considered as a whole, it is possible for it to be interpreted to the effect that the reason why the accused remembered that specific occasion, was because it was in the morning that he was watching television in this position, on the floor, with LGF, not at nighttime. But that is not what the accused said. Rather, he said he remembered the occasion because KW walked through the room. That answer is telling in circumstances where LGF had described KW walk through the room during the alleged offending in the lounge room, and then go outside, where she and the accused later joined her. 572 In my view, this was evidence tailored by the accused to meet the allegations. 573 Another example is the evidence given by the accused about what happened at JMT’s house on New Years Eve. The accused’s description of having a specific recollection of having fallen asleep sitting upright in JMT’s bed, and then waking still in that position, was inherently unbelievable and, in my view, tailored to render impossible that he could have offended against LGF in the way she claimed, on that occasion. 574 There were also inconsistencies in the evidence given by the accused in-chief, compare to cross-examination, about when he took MDMA on New Years Eve and the effect it had on him. When that evidence is carefully assessed, the impression given is that the accused was endeavouring to tailor his evidence to downplay the possible effect of that MDMA either on his behaviour, or his recollection of the events that occurred, on that night. 575 There were also subtle differences in the evidence given by the accused as to the occasions when LGF came into his bedroom at RW’s house. During his evidence-in-chief, the accused explained that LGF came into his bedroom on multiple occasions when he was trying to get to sleep, wanting to hang out and watch TikToks. He said he got angry with her for doing this and it was the first time he’d ever got angry with her. She would get annoyed and leave shortly thereafter. When asked if he ever did the things that LGF wanted him to do at nighttime with her, he said, ‘Not when I had work the next day’.473 576 However, in cross-examination, the accused gave evidence that he and LGF would watch TikToks in his bed at RW’s ‘probably twice a week’.474 He went on to say he tried to spend a little bit of time with her to give her as much attention as he could. 473 P33 at T 383.26. 474 P33 at T 440.4. -- 102 of 127 -- [2024] SADC 107 101 577 This evidence was important because it related both to his opportunity to offend at RW’s house in the way as claimed by LGF, and the accused’s explanation with respect to the text messages. 578 LGF was on holidays when she stayed at RW’s and the accused was working. On all of the evidence, LGF was struggling with RW’s discipline, such that she is most likely to have preferred spending time with the accused, rather than RW, when she was staying there. However, my impression of the accused’s evidence on this topic that he was trying, unsuccessfully, to both limit the opportunity for the alleged offending to have occurred at RW’s house, while otherwise exaggerating the extent to which they had fought at RW’s house, by way of attempted explanation for the text messages. Summary 579 As outlined above, it was my impression that numerous aspects of the accused’s evidence were tailored to meet the case made against him and in several aspects, I was satisfied that he was simply not telling the truth. 580 I find that the accused was neither a credible nor a reliable witness. 581 Notwithstanding the fact the accused is of prior good character, and the supportive character evidence given by both Mrs Shaw KC and Mr Anderson, I am satisfied that there is no reasonable possibility that the accused is telling the truth when he has denied the alleged offending. 582 However, it is not for the accused to prove, or disprove, anything. The accused bears no onus. It remains for me to carefully consider all of the evidence, to determine whether, as to each count, considered separately, the prosecution has proved the accused’s guilt beyond reasonable. Officer Lock’s Evidence 583 I have no hesitation in accepting the evidence of Officer Lock as being both credible and reliable. That being said, her evidence was of limited assistance in my determination of the primary issue in dispute, namely whether any of the alleged unlawful sexual acts occurred. JMT’s Evidence 584 JMT was an honest and generally reliable witness. I accept her evidence that around Christmas 2020, she had a conversation with LGF during which LGF told her that the accused was touching her. While JMT was initially adamant that LGF had used the specific words ‘private areas’ when describing where the accused had touched her, she later acknowledged that this was what she had understood, from what LGF had said to her. 585 There were some minor differences in JMT’s evidence and that of LGF as to precisely where they were when this conversation occurred. JMT said they were -- 103 of 127 -- [2024] SADC 107 102 in LGF’s bedroom at Kenneth Road when LGF first told her this, and that they went for a walk to her house, during which they walked through pretty leaves and collected flowers and leaves. LGF said she disclosed the offending to JMT when they were walking to JMT’s house and they collected flowers, which JMT dried and put in a frame for her. 586 I am satisfied they were both describing the same occasion, albeit they had a slightly different memory of when the topic of the abuse was first raised on that day. 587 I accept JMT’s evidence that the photographs Exhibit P28 were taken on the same day this conversation took place, namely 16 December 2020. 588 JMT also gave very general evidence about her observations of a tent being set up at Kenneth Road every couple of weeks. Although she was a regular visitor at Kenneth Road, whether the tent was set up there at any particular time, is unlikely to have been anything of note, or something about which her memory would be perfectly accurate. Importantly, JMT could not assist the Court as to whether she had seen the tent set up outside at Kenneth Road during 2020. As such, her evidence on this topic, which I consider was honestly given, was of limited assistance. KW’s Evidence 589 KW is obviously very supportive of LGF, not only because she is her youngest child and daughter, but because of her own trauma of experiencing sexual abuse. She clearly believes LGF. However, KW is also in the invidious position of the accused being her oldest son. 590 I do not doubt that since the allegations have come to light, KW has thought long and hard about what she could have done to either prevent the alleged offending or been alert to the fact it was occurring. I anticipate that she has spent much time, analysing and attempting to ‘pick apart’ observations she has made, from time to time, of the accused’s behaviour with and towards LGF, during the relevant period, to ascertain whether she ought to have realised what was going on and/or done something to stop it. 591 For these reasons alone, I have been cautious in my assessment of KW’s evidence. 592 There were also aspects of KW’s evidence which were demonstrated to be inaccurate. For example, KW denied ever encouraging her children to smoke cannabis. However, Exhibit D25 is a screenshot from the phone of KW’s former partner, Keith, which depicts a bong she had made for LGF. Notwithstanding I have reservations about aspects of LF’s evidence, I do accept his evidence that he and KW tried to grow a cannabis plant together again, contrary to KW’s evidence that she did not encourage her children’s drug use. -- 104 of 127 -- [2024] SADC 107 103 593 KW acknowledged she was a daily user of cannabis and that her children were aware that she smoked the drug. While she claimed to only smoke in her bedroom or ensuite, LGF had seen her smoking and I am satisfied that KW smoked cannabis outside at Kenneth Road and therefore in front of her children. I also consider it likely that notwithstanding her evidence to the contrary, KW did give LGF alcohol during 2020, namely Vodka Cruisers, having regard to all of the evidence. This was an example of KW downplaying what may have been evidence of her inadequacies as a mother. Similarly, KW’s evidence wherein she denied ever having threatened LGF with a stick, in the face of contrary evidence given by LGF (being evidence I do accept), falls into this category. 594 That being said, I reject the submission made by counsel for the accused that KW was biased against the accused and willing to lie, or say anything, to ensure his conviction. 595 KW was by no means the perfect mother to the accused. He was effectively forced out of the home and left to find his own way from Ethelton to the outer southern suburbs, for several years to complete his schooling. I accept that she has, at times, prioritised her addiction to cannabis (and potentially methylamphetamine), to providing her children with stable accommodation and other support. 596 However, I do not doubt that KW loved the accused, as demonstrated by her communication with him in Exhibit D23 and the fact she was willing to make the long drive to Ethelton to return the accused’s laptop, and to not simply return it but to then spend time at the beach with the accused. I reject the accused’s evidence that she would do anything to make him suffer. 597 KW did not deny that she had spoken to the accused’s boss and told him she wanted to break the accused’s legs after learning of the allegations. I consider it likely a conversation did occur along these lines. However, she is the mother of a young teenage daughter who claims to have been sexually abused by her own brother. It is understandable, albeit regrettable, that KW would react in such an emotional and angry way given these circumstances. 598 As to the second conversation with KW described by Mr Anderson, I have some reservations as to the reliability of the evidence given by Mr Anderson on that topic. The fact he claimed to know the caller was KW, despite the call being from a private number and him having only spoken to KW by telephone on one prior occasion, is a cause for some scepticism. I am unable to determine whether a conversation occurred using the precise terminology as described by Mr Anderson. Even if KW did say something to Mr Anderson along the lines of ‘I don’t care if it’s not all are true’, it is readily understandable that KW would be devastated even if only some of the alleged abuse had occurred, given what she knew by her own experience to be the impact of any such abuse. -- 105 of 127 -- [2024] SADC 107 104 599 As I said previously, it is not for this Court to determine the truth of the accused’s allegations that he was the victim of sexual abuse perpetuated by KW. I have already outlined the considerable concerns I have as to the accused’s reliability and credibility, including as to the evidence he gave on that topic, notwithstanding the ‘complaint’ evidence given by Mr Anderson. 600 KW, like LGF, had difficulty linking her memory of certain events to dates. For example, she could not recall when the family moved into Kenneth Road and initially said they only moved to Kenneth Road in 2020 or 2021. Although this evidence is inaccurate in terms of the date, there is no dispute that the family did move to Kenneth Road. She accurately recalled that LGF had to move schools, but her memory as to when this occurred was poor. 601 The evidence given by KW that was relied upon by the prosecution on crucial matters falls into four different categories. 602 The first is her observations of the accused and LGF together in LGF’s bed one morning. The accused gave evidence that KW regularly entered LGF’s bedroom when he and LGF were in her bed together of a morning. KW gave evidence that one day, at about 1:00pm in the afternoon, she observed the accused and LGF together in LGF’s bed, at which time the accused was lying behind LGF and had his arm around her, spooning. The accused denied ever spooning LGF when he slept in her bed. 603 However, LGF gave evidence the offending in her bed always occurred late at night and she would pretend to be asleep while it was occurring. What KW claims to have seen was in the middle of the day, when LGF and the accused were both awake and spoke to her. In my view, even if KW’s recollection of what she observed at that time is accurate and not now tainted by what she knows of the allegations, it is of only limited assistance to the prosecution case. 604 The second aspect of KW’s evidence relied upon by the prosecution related to her observations of LGF and KW in the lounge room. KW gave evidence that she had seen LGF and the accused sleeping together on a mattress in the lounge room at different times of the day. However, when her evidence on that topic is carefully considered, it is unclear if in fact, she saw them ‘sleeping’ on the mattress together, or simply lying on the mattress together, resting.475 605 She did say that she had seen them together, lying on a mattress in the lounge room, once or twice of a morning, watching television. The accused acknowledged that he had, at times, been on the mattress, with LGF, watching television in the morning, albeit he denied he was lying down at the time. He said it would be uncomfortable to watch television from such a position. KW was not further questioned as to precisely what she saw and she may well have simply seen the 475 T 73.8-32. -- 106 of 127 -- [2024] SADC 107 105 accused half lying/half sitting on that mattress, with LGF, in the same position as described by the accused. 606 As such, I do not consider KW’s evidence on this topic strengthens the prosecution case as to any of the counts on the Information. 607 The prosecution also relied on KW’s evidence to establish that the tent was set up at Kenneth Road on multiple occasions, and that when it was set up, it would stay up, at times, for periods in excess of five days. This was important because of the evidence set forth in Exhibit D23 and LGF’s evidence on this issue. KW gave evidence that the tent would be set up in the holidays and that during winter it would be up for one or two weeks and in summer for three or four weeks. 608 Notwithstanding the concerns I have identified with aspects of KW’s evidence, I accept her evidence on this topic. Having regard to all of the evidence, I am satisfied that the tent was put up as a treat, as something fun for LGF to do. It makes sense that it would be put up in the holidays, when, for example, some of LGF’s friends may have been going off on holidays or camping. It is simply unrealistic to expect any of the witnesses to now have a precisely accurate memory of how long (or perhaps even where) that tent was set up at any specific time during 2020. It makes perfect sense for the tent to stay up, during a holiday period, if the weather allowed it. If the tent was under the carport and therefore somewhat protected by the weather, it makes even more sense for it to stay up for longer than a few days. 609 Insofar as it was suggested that KW was simply tailoring her evidence to ‘fit’ with LGF’s allegations, and to address the evidence in Exhibit D23, importantly KW gave evidence that she never saw LGF and the accused sleeping in the tent together, indeed she gave no evidence that she had even seen the accused and LGF in the tent together. 610 The final aspect of KW’s evidence which was the subject of particular emphasis by the prosecutor, was KW’s evidence that she had found an empty spirit bottle in a bag in LGF’s bedroom. I agree with the submissions made by counsel for the accused that this evidence went no further than establishing that LGF was likely consuming alcohol during 2020, which was otherwise consistent with (most) of the evidence led at trial. There was no evidence that this bottle was purchased by the accused for LGF or that it had any connection whatsoever to the accused. LF’s Evidence 611 Although LF was outwardly a pleasant and likeable witness, I do have considerable doubts as to the truthfulness and accuracy of aspects of his evidence. As such, I have approached my assessment of all of his evidence with considerable care. 612 It was clear that by his evidence, LF was endeavouring to portray himself in the role of a caring and concerned older brother to LGF and to downplay the extent -- 107 of 127 -- [2024] SADC 107 106 of any negative influence he may have had upon her. It was also clear that he was willing to attribute the blame on the accused, for some things that he, in fact, had done. 613 I reject LF’s evidence that he despised alcohol in the face of evidence to the contrary, being that given by LGF and that apparent from Exhibit D27. I reject the evidence LF gave wherein he denied ever supplying LGF with cannabis or teaching her how to smoke cannabis, it being contrary to the evidence given by LGF, being evidence I do accept. I reject LF’s evidence that he tried his best to make sure LGF did not see him smoke cannabis, again, that evidence being contrary to LGF’s evidence, which I do accept. I reject LF’s evidence that it was the accused who gave LGF alcohol at her 13th birthday party, having regard to the matters ultimately, but reluctantly, acknowledged by LF in cross-examination on this topic.476 614 Given these findings, I have carefully considered the evidence LF gave about the accused’s interactions with LGF and the accused’s use of drugs at Kenneth Road. Having done so, it is of note that LF did not seek to embellish his evidence in the way one might expect if he were, as submitted by counsel for the accused, simply lying in order to ensure the accused’s conviction. 615 For example, LF gave frank evidence that he did not observe any change in the nature of the relationship between the accused and LGF during the time they were at Kenneth Road. He never saw the accused give LGF cannabis, nor did he ever see LGF under the influence of cannabis. He remembered the accused sleeping in his swag on the floor of LGF’s bedroom, and never saw the accused and LGF sleeping together in LGF’s bed. He had seen the accused sleep in LGF’s bed but this was when LGF was at a friend’s house. Although LF said he had seen LGF and the accused lying on LGF’s bed together in the morning, he did not seek to exaggerate what he had seen, simply saying, that they were ‘like cuddling’ or the accused would be on his phone. 616 Importantly, what LF did remember, was a shift in his relationship with the accused, which he thought had occurred after his 16th birthday. Instead of the accused spending most nights with him in his room smoking cannabis together, the accused started spending more time with LGF in her room. LF acknowledged he had a girlfriend at this time. I consider it likely that LF is mistaken as to when this happened, given that in other evidence, he described his relationship with his girlfriend starting in May 2020 and also referred to a party he had for his 17th birthday in 2020. 617 I accept LF’s evidence as to this subtle change in the accused’s behaviour. It is largely consistent with LGF’s evidence on this topic, which I accept. Further, LF’s description of how he and the accused would ‘do drugs’ together in his room at Kenneth Road on a regular basis, was consistent with what the accused told 476 See discussion of this evidence at [162]-[164] herein. -- 108 of 127 -- [2024] SADC 107 107 Officer Williams. The accused himself gave evidence that once LF got a girlfriend, he did not want to be in LF’s room with him and the girlfriend. The accused acknowledged that he would use cannabis every night. It is more than likely and I find that just as he chose to use LGF’s bedroom as a place to sleep at that time, the accused also chose to use LGF’s bedroom as a place for him to consume cannabis. 618 LF gave evidence on two other topics directly relevant to the allegations. 619 The first related to the tent. LF gave evidence that one morning, when he went outside to go to the toilet, he saw the accused and LGF in the tent together either cuddling or watching something on the phone. 620 Although it is possible that LF now has this recollection, I have a concern as to the reliability of this evidence. The language used by LF to describe what he saw on this occasion is remarkably similar to that he used when he described his observations of LGF and the accused together in LGF’s bed. Further, LF did not give evidence to this effect at the first trial. 621 At the first trial, LF gave evidence that he had not seen the accused and LGF sleeping together in the tent. While this evidence is not inconsistent with the evidence that he did see them in the tent together at a time when they were not sleeping, the fact is that LF omitted to give evidence at the first trial of his observations of seeing LGF and the accused in the tent together. 622 It is possible that LF simply forgot about this when giving evidence at the first trial. He may genuinely have a recollection to this effect. However, it is also possible that he is now mistaken, in terms of the accuracy of this memory, given the time that has passed since those alleged observations were made, or that the evidence is a reconstruction, based on what he now knows of the allegations. 623 LF also gave evidence that he had seen a tent set up at Kenneth Road during 2020 for about a two-week period. I do not doubt that LF recalls seeing a tent up at Kenneth Road from time to time and that there was at least a time (probably more, having regard to KW’s evidence) when that tent was set up for two weeks or so. However, for LF to now have a specific recollection of the tent being set up, for two weeks during 2020, is, in my view, unlikely. I am satisfied the tent was set up on several occasions, during various school holidays, at Kenneth Road. As such, it was not unusual or particularly memorable for the tent to be up, meaning I cannot have confidence in the reliability of LF’s evidence that he specifically recalls it was set up, in 2020, for a two-week period. 624 LF also gave complaint evidence. Of note, was that neither LGF nor LF were cross-examined to the effect that the conversation they both described in the backseat of the car, after the time LGF tried to overdose on pills, had occurred. I accept LF’s evidence, and that of LGF, that there was such a conversation. -- 109 of 127 -- [2024] SADC 107 108 625 I consider LF is now genuinely mistaken at to his recollection that this conversation occurred before LGF ran away (ie before New Years Eve 2020). However, I accept his evidence that during the conversation, he was questioning LGF on her behaviour, being consistent with his evidence that in the last half of 2020, LGF’s behaviour worsened in the sense that she seemed to be acting like a nuisance and doing things simply to get attention. 626 I consider it unlikely that LGF now has a perfectly accurate recollection of everything that was discussed with LGF during this conversation. He was a 17- year old, learning of allegations that his younger sister had been sexually abused by his older brother. It must have been extremely difficult for him to both learn of the allegations and then to grapple with what, if anything, he should do about them. In this respect, I accept the evidence LF gave as to why he did not immediately tell KW about the allegations. 627 I accept LF’s evidence, which was not challenged, that during this conversation, LGF told him that the accused had touched her inappropriately, that he fingered her and that she had felt his penis touching her bottom. I also accept LF’s evidence, which again was unchallenged, that LGF told him about a specific incident that occurred in the lounge room, and that his memory now of that conversation was that LGF told him the incident occurred when she and the accused were sitting on the couch. It may well be that LF’s memory as to precisely what LGF told him occurred in the lounge room is inaccurate, either due to the passage of time, and/or that he misunderstood precisely what she was saying, given his evidence that she was unintelligible for some of the conversation. The Complainant General Observations 628 The evidence of LGF is critical to the prosecution case and as such, I must scrutinise her evidence with care.477 I must be satisfied that LGF is both a credible and reliable witness, and I must be satisfied beyond reasonable doubt that she is telling the truth about the alleged offending. 629 My assessment of LGF’s evidence has necessarily been informed by both her age and personal circumstances at the time of the alleged offending (12 and 13) and when giving evidence (13 and 14). 630 LGF acknowledged that she had struggled with mental health issues and had engaged in self-harm from when she was in Year 4 at school. Her school attendance record demonstrates that she was frequently absent, or late, to school, with that level of absenteeism increasing significantly during Years 5, 6 and 7. She ran away from home on more than one occasion. 631 KW was addicted to cannabis, and both LF and the accused regularly smoked cannabis, and used other drugs, at Kenneth Road. LGF was therefore exposed to 477 Murray v R (2002) 211 CLR 193. -- 110 of 127 -- [2024] SADC 107 109 drug use, on a regular basis, such that being around drugs were ‘normal’ to her. It is therefore unsurprising that LGF also started to consume cannabis (and alcohol) from an early age and experimented with other drugs. 632 The alleged offending also involved a trusted, older brother, whose company she enjoyed. He invested time and money in her, when for various reasons, her mother did not. 633 She was not only young, but from impoverished circumstances, with a disrupted education and a lack of positive adult role models. 634 These factors made LGF vulnerable to the alleged offending. However, they also played a significant role in her presentation as a witness. I am satisfied these factors influenced the way in which she gave her evidence, the type of language she used and her inability (or perhaps reluctance) to describe, in detail, the alleged offending in her prescribed interviews. The allegations are, of themselves, embarrassing for a young teenage girl to talk about in front of a whole series of different adults, in excruciating detail, but made even more embarrassing because they involved her big brother. 635 I have carefully considered LGF’s evidence, bearing the aforementioned matters in mind. I will deal with issues relevant to my assessment of that evidence in turn. Credibility/Truthfulness of LGF’s Account 636 As previously stated, notwithstanding the manner in which KW was cross- examined and the focus on the accused’s evidence of matters relating to KW and her relationship with him, the accused did not submit that LGF had lied about the offending at KW’s insistence, as some kind of revenge for KW having suffered similar abuse at the hands of a male relative many years ago. Nor was any other specific motive for her to lie relied upon. 637 Of course, the absence of any motive to lie does not strengthen the prosecution case, nor does it mean LGF must necessarily be telling the truth. People can lie for many and varied reasons, none of which may be readily apparent from all of the circumstances. 638 I must carefully consider whether I can be satisfied beyond reasonable doubt that LGF is telling the truth. In this case, that exercise must be undertaken in the context of LGF having demonstrated that she does have the capacity to act dishonestly. LGF was confronted with the photograph that she had posted on social media, depicting jewellery, cosmetics and other items, with the caption ‘Fun little rack up’. She acknowledged that this was a reference to her having stolen items, although she said not all of the items in that photograph were stolen. 639 This evidence was given against the background of LGF having previously volunteered during the evidence given by her in court that she and her friend(s) -- 111 of 127 -- [2024] SADC 107 110 had participated in stealing alcohol from a friend’s mother and drugs from a friend’s father. As such, LGF did not shy away from the fact of this dishonest behaviour. 640 During cross-examination on the topic of her drug use, LGF initially denied having used ‘shrooms, but them immediately corrected herself. While this potentially indicates a willingness to lie, where the truth may have been against her interests, the fact that she immediately changed her answer and told the truth was important. 641 In cross-examination, LGF gave evidence that she had not consumed alcohol when she was 12. She said, ‘I never drank or smoked at 12, was a normal kid at 12’. This evidence, on its face, is untrue, having regard to all of the evidence. 642 However, it is quite clear that LGF became confused during her evidence as to which year she had turned 13. Her evidence was otherwise consistent that she both drank alcohol and consumed cannabis in 2020 when she was in Year 7. I am satisfied that she was simply confused and mistaken in her memory of never having smoked or drunk at the age of 12. 643 When LGF’s evidence is considered at a whole, it is clear that she was quite concerned not to give details, or answer a question in a definite way, unless she was certain of the answer. She was not a witness who exaggerated or embellished her evidence. 644 Further, many of the salient features of LGF’s account were, in fact, either not in dispute, or supported by other evidence which I do accept. 645 The accused regularly slept in her bed with her in her bedroom. There was simply no dispute about that, albeit the frequency with which he did was disputed. 646 LGF did, on occasions, set up a bed on the lounge room floor and sleep in it. 647 On New Years Eve 2020, LGF ran away to JMT’s house where she spent time alone with the accused. 648 There was a tent which was erected from time to time under the carport at Kenneth Road. 649 The accused did smoke cannabis from a bong on a regular basis at Kenneth Road. 650 LGF and the accused did enjoy a close and otherwise normal sibling relationship. 651 As such, important features of her account were demonstrably correct and were not in dispute. -- 112 of 127 -- [2024] SADC 107 111 652 Further, in addition to being a reluctant witness, LGF was a very unsophisticated witness. She did not present as someone who had constructed and was repeating what was a well thought out and structured fallacy. 653 Simply put, I am satisfied beyond reasonable doubt that LGF is not lying about her recollection of the alleged offending. Inconsistencies in Account 654 Counsel for the accused highlighted numerous inconsistencies in LGF’s account which were said to reflect adversely both on her reliability and credibility. Some of these inconsistencies are of potential significance insofar as they relate to LGF’s account of the alleged unlawful sexual acts. 655 The first is the fact that at the very start of the first LGF interview, when asked to describe what had happened when the accused touched her, LGF’s response was that she had woken up with his hand in her bra once, he had tried fingering her once and he had made him touch her ‘there’. She also said that she could only remember a couple of times. 478 656 It was submitted that this was simply inconsistent with the rest of LGF’s account, which, as it unfolded, had expanded to a recollection of the accused having fingered her up to 14 times and her giving a fairly detailed account of more than ‘a couple of times’ the accused had abused her. 657 However, when the first LGF interview and her entire evidence is carefully considered, it is apparent that, at the very outset, LGF gave an account of the accused having touched her ‘multiple times’. She made it quite clear that because the occasions of offending in her bedroom all had a certain similarity about them, during which the accused had a regular routine in terms of how he touched her, she was having trouble differentiating between each such episode and also precisely when the abuse had begun. That is readily understandable, if, as she claims, the accused offended against her in this way every time he slept in her bed with her. 658 However, she was able to recall in some detail those times the accused had touched her and the circumstances were different – that is, either the offending occurred elsewhere or there was something else about it that made it different. That is perfectly understandable and indicative of how memory works. 659 One such occasion was when LGF was on the bed with the accused and Sadie and remembers waking up with the accused’s hand in her bra. Another occasion LGF recalled with some clarity was that in the lounge room when the accused was fingering her and stopped moving his fingers when their mother walked past. Another was when they were alone together in her bed and he moved her hand 478 First LGF interview at pp 6-7, lines 280-299. -- 113 of 127 -- [2024] SADC 107 112 onto his penis. These were the only specific occasions of offending that she in fact described in detail to Officer Kittel in that first interview. 660 It is also important to remember that this evidence was given in a room with a police officer. LGF was only 13. She was there to talk about very sensitive and embarrassing subject matter involving her big brother with whom she had otherwise been very close. While she knew she had to tell the truth and the importance of doing so, she was unlikely to have had any appreciation of the fact that every word she used would be analysed and potentially used against her and/or to have realised the importance of going into every minute detail of the offending. 661 As such, while LGF did not immediately disclose some of the allegations, and indeed only disclosed some in cross-examination, when the evidence as referred to at paragraphs 655 and 656 herein is considered in its context, any apparent ‘inconsistency’ can be properly understood and explained. It is for this reason that I do not accept that LGF’s account can properly be described as one that has expanded or significantly altered over time – she has always maintained that the accused touched her inappropriately on multiple occasions. 662 During the first LGF interview, when asked how the accused would finger her, LGF motioned in a way to suggest the accused would put his hand over her legs rather than between them. Officer Kittel immediately asked her to clarify this. She was quite certain he would put his hand between her legs. I am satisfied that during this part of the interview, LGF was clearly trying her best to recreate and then verbalise her recollection of laying on her side, with the accused behind her, and him reaching between her legs, but struggling to find the right motions or language to properly convey this. It is very difficult to visually demonstrate this action. I am satisfied that any potential inconsistency in this evidence can be explained on this basis.479 663 In the first LGF interview, LGF told Officer Kittel about the accused asking her questions of a sexual nature during a Truth or Dare game but did not go on to tell her about the alleged offending in the bed which occurred thereafter. This offending was only disclosed during LGF’s evidence-in-chief. Importantly, when LGF was questioned as to why she had not gone on to tell Officer Kittel at that time about that occasion of offending, LGF said that she had thought she had told her and she could not remember everything she had said to her but she would have tried to tell her. 664 In fact, as outlined above, LGF did tell Officer Kittel during the first interview that she remembered waking up once in her bed with the accused’s hand in her bra, being the precise allegation she made against him on that specific occasion on the bed with Sadie. As such, in her mind, LGF may well have thought she had told the officer about that – what was the important aspect of that incident 479 First LGF interview at pp 17-18, lines 776-844. -- 114 of 127 -- [2024] SADC 107 113 to LGF was the fact she woke up with the accused’s hand in her bra massaging her breast, not the surrounding circumstances. 665 LGF was cross-examined in some detail as to why, when describing the incident in the lounge room, she told Officer Kittel that she just ‘sat there’ while the accused was fingering her, despite being adamant during her evidence given in court that the offending had occurred when they were lying down. The fact that LF recalled LGF telling him about an incident which had occurred when she was sitting on the couch and KW was awake and walking around, also renders this evidence important.480 666 However, when the first LGF interview is very carefully analysed, it is quite clear that throughout that interview and thereafter, LGF has consistently maintained that the incident in the lounge room occurred when the accused came and lay down next to her, on the bed she had made up on the lounge room floor. She described this alleged incident in significant detail during the first LGF interview and clearly described the accused lying behind her, under the blanket, spooning her. I consider her use of the phrase, ‘I just sat there’ as simply an example of a young girl, using imprecise language and not indicative of her evidence on this topic being either dishonest or unreliable. 667 The offending in the tent was not disclosed until the second LGF interview. It is apparent that LGF participated in the second interview to provide details about the ‘tent incident’. LGF clearly did not want to be at this second interview. She was very reluctant to engage at all in the questioning process. She appeared to be annoyed at why she had to keep answering questions about the offending. Again, this is not unexpected given LGF’s age, with likely limited understanding as to the legal process, or of the reasons why she was being asked to provide so much detail when she had already told the police what was important, that is, that the accused had sexually abused her. As such, the fact LGF did not remember to tell Officer Kittel about the tent incident in the first interview does not impact on my assessment of her evidence on that topic. 668 LGF only disclosed details of the alleged offending which occurred on New Years Eve and at RW’s house during cross-examination. 669 When LGF described what happened on New Years Eve, she was unable to provide much detail as, using her words, ‘most of my scenarios have merged together’.481 She was candid in acknowledging that she did not have a good memory of precisely what happened on that occasion, other than she had remembered something happening in JMT’s bed - that he was cuddling her and massaging her arse. She thought he may have fingered her then – because that is what he usually did – but she was careful not to say that he did as she could not be 100% certain. 480 Elsewhere in these Reasons I have outlined why I consider LF may have an inaccurate recollection of precisely what LGF told him happened in the lounge room. 481 MFI P19 at T 215.17. -- 115 of 127 -- [2024] SADC 107 114 670 While it may be thought that as this incident occurred at a different location, this is something that LGF may have been expected to recall in more detail. However, on LGF’s account, the accused had been touching her, in the same way he did at JMT’s house, on a regular basis for several months before this. There was nothing different about this occasion, other than the fact they were alone in JMT’s bed and bedroom, rather than in her bed and bedroom. This may well explain why this was not something ever specifically described by LGF during the prescribed interviews or why she did not think to raise it at any other time, being just more of the same type of conduct she had previously described. 671 The alleged offending at RW’s house is slightly different. On the one hand, it is seemingly more important as on LGF’s evidence, given only in cross- examination, she thought this was the last time the accused had abused her. Again, it might be thought that this last occasion would be something that she would have remembered earlier. 672 However, when LGF described what happened at RW’s house, all she could remember was that she got into the accused’s bed, he started massaging her arse, and that she immediately got out of the bed. In other words, this was a fleeting episode, involving limited indecent contact, which stopped before it developed into something more (unlike much of the other offending she described). 673 This may well explain why LGF did not mention this occasion earlier, it being, on its face, much less significant than the other things the accused had ever done to her. 674 The fact this incident was, in the scheme of things, relatively innocuous, may well explain why it was that LGF told Officer Kittel in the first LGF interview that she could not really remember the last time the accused touched her. 675 The nature of the accused’s conduct as described and recalled by LGF on these two occasions was limited. It was very similar conduct to that which had occurred to her in her bed on a regular basis. This may also explain why it was that she was uncertain, when asked in examination-in-chief if the offending had continued after she told JMT about it. 676 LGF was also unable to recall the details of the first occasion of offending. From the evidence she gave about the offending in the tent, I am satisfied that was not the first occasion of the offending. From the way LGF described the offending to Officer Kittel, I am satisfied that the offending first started in LGF’s bed, and that when LGF said she could not recall the details of that occasion, she was genuinely unable to delineate the circumstances of that first time from the many other similar occasions of offending that followed thereafter. Impact of Cannabis and Alcohol Use on Reliability 677 Counsel for the accused submitted that the Court should be very careful to accept the reliability of LGF’s account, given the potential impact on her -- 116 of 127 -- [2024] SADC 107 115 recollection by the consumption of alcohol and illicit drugs. Particular emphasis was placed on LGF’s evidence about the occasion she had consumed the ‘shrooms, as, on her account, the accused was present at that time. The Court was reminded as to what LGF said in her first interview, namely, ‘I wasn’t sure if I was dreaming, but like I think back on it now and I definitely know I wasn’t dreaming’.482 678 I have carefully considered whether it is reasonably possible that in fact LGF now genuinely believes the offending occurred, but that she is mistaken, because she either dreamt or hallucinated the offending, while under the influence of an illicit substance, and that belief has now solidified and expanded over time. I am satisfied beyond reasonable doubt that that is not the case. 679 LGF gave quite candid evidence about her consumption of cannabis and alcohol. 680 Although LGF gave evidence that she was pretty sure the accused bought her alcohol so he could get her drunk and ‘do stuff easier’, she could only recall one occasion when the offending occurred after she had been drinking with the accused, that being the occasion on the bed with Sadie. She thought there were two, perhaps three times the offending had occurred after she had consumed cannabis with the accused, but she could not recall the details of those occasions. As such, the occasions of offending she can now recall, did not occur in circumstances where she had been consuming cannabis with the accused. 681 LGF denied the use of LSD and said she had only consumed ‘shrooms once with her friend, and once with the accused, at which time she had one little dried up mushroom, which had no effect on her. 682 After carefully considering all of the evidence, including particular aspects of LGF’s account outlined below, at paragraphs 710 to 712 herein, I am satisfied beyond reasonable doubt that the offending was neither dreamt or imagined by LGF, either because she was under the influence of substances, or otherwise. Improbability of Account 683 It was submitted that aspects of LGF’s account were simply improbable or implausible. Specifically, it was submitted that the offending she described as having occurred in her bed, when she, the accused and Sadie were on the bed, was said to be so brazen as rendering it impossible. 684 However, LGF carefully described the way in which they were lying on the bed. The accused was behind her and Sadie was in front of her. She was on her side, facing Sadie. Although LGF did not say which direction Sadie was facing, given there were three of them on the bed, with their heads all on the same side of the bed, it is unlikely she would elect to sleep facing LGF, having regard to their close proximity. In any event, given the nature of the conduct described, it is 482 First LGF interview at p 42, lines 2041-2042. -- 117 of 127 -- [2024] SADC 107 116 unlikely Sadie would have had any knowledge of the fact that the accused had his hand under LGF’s bra. This was not conduct which of itself would necessarily create a sound or disturbance which would be expected to alert someone in Sadie’s position to its occurrence. It is also conduct which could have immediately been stopped, should Sadie have stirred or given any indication she was awake. 685 While dealing with this alleged incident, I note that Sadie was not called to give evidence. I acknowledge that had she been called, she could have given evidence to corroborate aspects of LGF’s account. 686 However, I accept LGF’s evidence that Sadie was not a close friend. I accept that she did not want to tell police Sadie’s name in order to avoid these embarrassing allegations being disclosed to her. This is a perfectly understandable reaction from a 13-year-old girl. I reject the submission that LGF made a deliberate decision to conceal Sadie’s surname as she knew her evidence would not help her. If that was the case, there was simply no need for her to mention Sadie’s name at all when recounting this series of events. Further, the way LGF described how she, the accused and Sadie were lying in this unusual way, across her bed, on this occasion, has a distinct ‘ring of truth’ about it, consistent with LGF recounting an event which had actually happened. 687 It was also submitted that the offending described at RW’s house was inherently improbable as it involved LGF willingly getting into bed with the accused, her abuser, who she knew had previously abused her over many months in similar circumstances. A similar submission was made about the improbability of LGF reaching out to the accused to be her confidante, and to come and see her at JMT’s house, when she ran away and to then elect to live with him at RW’s house. Why would she encourage her abuser to come to see her when she was alone and vulnerable? Why would she want to increase the potential opportunity for the offending to occur? 688 If this evidence is considered in isolation, there is obvious strength in those submissions. However, the evidence must be considered in light of the unusual dynamic in which the alleged offending occurred and the nature of the sibling relationship between LGF and the accused, outside of the offending. 689 On all of the evidence, LGF and the accused were very close during the relevant period. LF was very much preoccupied spending time with his girlfriend. KW and LGF were fighting regularly about her behaviour and the state of her room. LGF was clearly troubled and struggling with her mental health, not just because of what was happening with the accused, but for other unrelated reasons. 690 LGF trusted the accused. He prioritised time with her. He took an interest in her life and clearly enjoyed spending time with her. They each told each other -- 118 of 127 -- [2024] SADC 107 117 about issues going on in their lives. As she said, ‘everything was normal in the daytime’.483 691 Although I am satisfied from the evidence given by both LGF and KW that LGF ran away on New Years Eve 2020 during the afternoon, it is possible she did not message the accused to come to join her until early evening or later. It can be inferred from LGF’s evidence about the offending at RW’s house, that this occurred at nighttime. 692 However, after considering all of the evidence, I do not consider LGF’s behaviour on either of these occasions to be necessarily inconsistent with her account of the offending. On New Years Eve, LGF was particularly struggling. Her best friend, JMT, was at her father’s. She was alone and by herself on New Years Eve when there was a party going on at Kenneth Road. She needed someone to talk to. On her own account, she was hoping the accused would bring her some alcohol. 693 She had, by this time, on her account, been touched by him on a regular basis. It had become somewhat the norm. Her decision to reach out to the accused at this time can be understood having regard to all of the circumstances. 694 In my view for the same reasons, LGF’s decision to go and stay at RW’s house, where the accused lived, can be understood having regard to all of the prevailing circumstances. 695 As to the offending at RW’s house, there was no dispute that RW imposed certain rules on LGF. I am satisfied that this was not something LGF was used to. LGF and RW disagreed about things that were important to LGF such as seeing the boy she met in the Riverland. LGF was aged 13 with interests which were likely to have differed markedly from her grandmother. It is not surprising that LGF would seek out the accused’s company when she was at RW’s house, particularly to do something as routine as watch a TikTok together. The fact that LGF got out of the bed as soon as the accused started touching her and did not recall any other alleged offending at RW’s house, is also relevant. 696 I have given this particular aspect of LGF’s evidence particular consideration, as it involves LGF deliberately positioning herself in the accused’s bed, at night. However, having regard to all of the circumstances as previously described, I have ultimately determined that this evidence does not cause me to otherwise doubt the LGF’s account of that incident or the offending generally. 697 I pause to note that it was submitted that there was no dispute that LGF left RW’s house because she was not happy with RW refusing her request to see the boy she met in the Riverland, without introducing her to him. She did not leave because of the alleged offending. However, the offending started at Kenneth Road, not at RW’s house. Returning to Kenneth Road was simply returning to the status 483 MFI P19 at T 178.20. -- 119 of 127 -- [2024] SADC 107 118 quo which existed before New Years Eve. It did not mean that the accused would no longer be able to abuse her. The Alleged Offending in the Tent 698 The defence case was that the offending in the tent simply could not have occurred as the accused was not present at Kenneth Road during the five-day period preceding 18 April 2020, being the period during which LGF expressly stated this offending had occurred. 699 It is apparent from Exhibit D23 and I find, that the accused was not present at Kenneth Road on either the weekend of Saturday 18 April 2020, or the five days preceding Saturday 18 April 2020. However, the accused was at Kenneth Road the previous Saturday 11 April 2020. 700 LGF said she ‘had the tent up for like five days’, and that the offending she recalled in the tent therefore ‘could have been between 15 and 20 April 2020.’484 I am satisfied, from all of the evidence, that the accused was not at Kenneth Road at all during that specified period. 701 However, notwithstanding my criticism of aspects of her evidence, I accept KW’s evidence and I find that the tent was erected on more than one occasion during the relevant period, including under the carport. I also accept KW’s evidence that the tent was erected for birthdays or during the school holidays for some fun and, that when it was set up, it was kept up, on occasions, for a week, or longer. 702 When LGF’s evidence is considered as a whole, it is clear she is not someone who has a good memory for dates. She confused her age during 2020. When she spoke to Officer Kittel on 6 May 2021, she could not remember exactly when she told JMT about the offending, despite it being less than six months earlier. Her best estimate was it was between two and five months before the interview. However, it is clear from JMT’s evidence, which I accept, that LGF disclosed the offending to JMT on 16 December 2020. As such, there is every reasonable possibility that LGF’s memory as to when the offending in the tent happened was ‘around the mark’ but not precisely correct. 703 There is therefore every possibility that LGF’s recollection of the tent being up, either for five days, or for the five days she identified between 15 and 20 April 2020, is slightly inaccurate. If, in fact, the tent was erected seven days before 18 April 2020, then it would have been set up at a time when the accused was at Kenneth Road, namely Saturday 11 and Sunday 12 April 2020. 704 Much was made of the fact that KW sent the accused a photograph of the tent, and that she would not have needed to do that if he had previously seen it set up at that time. However, that is simply an assumption that is possibly available 484 MFI P19 at T 124.30-31. -- 120 of 127 -- [2024] SADC 107 119 from that evidence. Another is that KW was telling the accused LGF was still asleep, so she had not had an opportunity to tell her they were going out that day, and that she was still sleeping in the tent, which she had turned into her new home. 705 Further, LGF nominated the period from 15 to 20 April 2020 as being when the alleged offending in the tent occurred by specific reference to the photograph on her mother’s phone which bore the date 18 April 2020. Clearly the tent was up at that time. However, whether, in fact, LGF is accurate in terms of her recollection that the offending occurred when the tent was up at that time, or whether she has mistakenly assumed this to be when the offending occurred, based on the fact of that photograph, is uncertain. It may be that she is in fact recalling an incident which occurred on a different occasion the tent was set up under the carport, during the relevant period, but mistakenly has attributed the wrong date. 706 As such, I reject the proposition that it was impossible for the offending in the tent to have occurred because the accused was not present at Kenneth Road during the period nominated by LGF of 15 to 20 April 2020. Other Relevant Matters 707 While LGF did not have a memory of the specific details of some of the offending, she was clear that it had started during Year 7, in 2020, when she was aged 12. Although she told Officer Kittel it started some 8 to 10 months before the first LGF interview, given LGF’s memory for specific dates was poor, this estimate could be slightly inaccurate. 708 LGF was certain as to the nature of the offending, it being confined to the accused touching her bottom, her breasts and fingering her except for the one occasion when he moved her hand onto his penis. 709 As stated previously, LGF did not attempt to embellish or exaggerate at all when giving her evidence. She was frank insofar as aspects of her memory were not clear. She was not prepared to guess simply to give an answer which would assist the case being made against the accused. 710 In addition, there were numerous aspects of LGF’s account which I found compelling. For example, her simple and instinctive response when asked how she knew the accused’s fingers were inside of her when he lay down next to her in the lounge room, that is, ‘Because I could feel it’.485 The words used, and how she said them, when asked if she was wearing clothes when the accused slept in her bed, with her, namely that she ‘wasn’t gonna sleep naked with him’.486 Her description of the way that he would sometimes use his legs to push her legs up, so that they 485 First LGF interview at p 24, line 1146. 486 First LGF interview at p 37, line 1771. -- 121 of 127 -- [2024] SADC 107 120 were bent, when he was spooning her.487 Her recollection of his heavy breathing as he was fingering her and when he moved her hand onto his penis. 711 There was no evidence that LGF had any prior sexual experience at the time she gave the first LGF interview, or at any relevant time, other than any potential knowledge she may have acquired during the discussions she had with the accused of a sexual nature. 712 Another aspect of LGF’s account which I found compelling was her evidence that nothing was said either during or after any of the alleged offending as between her and the accused. This is consistent with her evidence that she would just lie there and pretend to be asleep during the offending and that the offending would stop when she rolled over or made it apparent that she was waking up. The fact she never said anything to the accused about the offending was also consistent with her concern to maintain their otherwise ‘normal’ and good sibling relationship. Grooming 713 Although the accused denied ever buying LGF clothes, as claimed by LGF, the accused acknowledged that he spent money on LGF – he bought her various gifts for her room and took her ice skating, to Build-a-Bear, the movies and out to eat. 714 LGF gave evidence that the accused spent a lot of money on her and that in her mind she thought he did that, ‘to keep her quiet’ with respect to the offending.488 Counsel for the accused submitted that this evidence should be rejected in the absence of there being any evidence that the accused had ever told LGF not to tell anyone about the offending or made any threats about that. 715 LGF acknowledged that, in fact, the accused may have simply been spending money on her because he could afford to do so. During the relevant period, the accused had a steady job, and I am satisfied that notwithstanding the money he spent on cannabis, other drugs and living expenses, his financial situation was such that he had more capacity to spend money on these things than KW. 716 There was no evidence that the accused’s spending on LGF changed at all during the relevant period. Further, I am satisfied that the fact he may have spent more money (or time) with LGF, compared to LF, was not for grooming purposes, but rather simply because of the different stages they were at in their lives (noting LF had a girlfriend from mid-2020) and their different interests. 717 As such, I am not satisfied that the accused spent money on LGF or spent time with going to the movies and the like, in order to groom her for sexual activity. 487 First LGF interview at p 12, lines 551-561. 488 First LGF interview at p 42, lines 2046-2047. -- 122 of 127 -- [2024] SADC 107 121 718 However, I am satisfied on all of the evidence that the relationship between LGF and the accused was always a close one, including during the relevant period. I am further satisfied that from mid-2020, coinciding with when LF commenced his relationship with his girlfriend, that the accused did start spending more time with LGF. I am satisfied that this was partly by necessity in the sense that LF was otherwise preoccupied with his girlfriend. 719 I am further satisfied, on all the evidence, that at or about the same time, the accused started sleeping in LGF’s room. 720 The accused acknowledged that he smoked cannabis every night and clearly had access to it. The evidence LGF gave about her cannabis use was candid. She was quite adamant that the accused gave her ‘his bong and weed’. She also readily volunteered that it was LF, not the accused, who first introduced her to cannabis, such that she did not seek to embellish the evidence she gave on this topic. I accept LGF’s evidence that when she was in Year 7 (2020), the accused would give her cannabis and they would smoke it together, usually in her bedroom. It follows that I reject the accused’s evidence to the contrary. 721 In making this finding, I accept that the evidence demonstrates that after 22 February 2021, LGF was still smoking cannabis and clearly being supplied cannabis by someone other than the accused. However, LGF acknowledged she had smoked cannabis with LF. It was not suggested by LGF that her only source of cannabis was the accused, or that he was the only one who ever smoked it with her. 722 LGF recalled two or three occasions when the accused touched her after they had consumed cannabis together. I am not prepared to make a finding that the accused deliberately gave LGF cannabis in order to facilitate the offending. It is possible he did so. However, it is also possible that cannabis use was such a routine and integral part of his lifestyle, that him sharing that drug with LGF, once LF became preoccupied with his girlfriend, simply occurred naturally. Further, LGF was no stranger to cannabis – she had used it before with LF and her mother was a heavy user. It was therefore not something ‘out of the ordinary’ for her to do. 723 Notwithstanding his evidence to the contrary, it is possible that the accused’s consumption of cannabis in these (or other) circumstances, made him feel disinhibited and/or emboldened to commit the offending. Similarly, the offending may have occurred irrespective of any illicit drug use on the part of the accused. I make no finding on this particular aspect of the evidence. 724 LGF also gave evidence that the accused bought her alcohol. She acknowledged that sometimes she would ask him to do so. She was quite adamant that he would buy her alcohol for parties and they would get drunk together. 725 Again, notwithstanding the accused’s evidence to the contrary, I accept this evidence. LGF gave evidence that the accused was not the only one to give her -- 123 of 127 -- [2024] SADC 107 122 alcohol. She acknowledged that, at times, ZF gave her alcohol and that LF had given her a ‘Little Fat Lamb’. Although she was not 100% certain that KW had bought her Vodka Cruisers in 2020, it was my impression that this derived from LGF being uncertain if this had occurred when she was 12 or 13, given her confusion as to her age in 2020, when giving her evidence in court. 726 As such, it was not the case that LGF was embellishing her evidence or attempting to paint a picture that it was only the accused who gave her alcohol. I accept her evidence that he did. The accused was aged over 20 during the relevant period. LF was only 16 or 17 and therefore underage. ZF did not live at Kenneth Road during 2020. It simply makes sense that the accused, being the oldest brother, would be the one to physically purchase alcohol, later consumed by LGF. 727 LGF gave evidence that she was pretty sure the accused bought her alcohol to get her drunk and make it easier for him to do stuff to her.489 She recalled only one occasion when the accused offended against her after buying her alcohol. Of course, it is possible there were other times he offended against her in these circumstances, but she cannot now remember them because she was too intoxicated to do so. 728 While it is possible that the accused made a conscious decision to buy LGF alcohol to get her drunk to facilitate the offending, I cannot make that finding. However, I am satisfied that the fact the accused and LGF did, on at least one occasion, drink together and sleep in the same bed together, provided the opportunity for the offending. Complaint Evidence 729 I am satisfied that JMT was the first person LGF told about the offending and that she did so during a conversation they had on 16 December 2020, the day they walked from Kenneth Road together to JMT’s house, and on the way, stopped and collected flowers and leaves. 730 The fact that LGF chose to first disclose the offending to her very close friend, rather than a family member, is readily explicable having regard to the circumstances of the offending, her young age and the fact the offending involved her otherwise trusted and loved older brother. It is consistent with LGF’s evidence, which I accept, that she did not disclose the offending earlier because she did not want to break up the family. She needed to tell someone, but she felt that she could not tell anyone in her family. 731 JMT recalls LGF telling her words to the effect that the accused was trying to touch her in her private parts. This is consistent with the nature of the offending as described by LGF. If, as JMT recalled, LGF said the accused was ‘trying’ to touch her, rather than ‘he is touching me’, this is consistent with what I consider to be LGF’s overall reluctance to talk about what happened between her and the 489 First LGF interview at p 45, lines 2158-2162. -- 124 of 127 -- [2024] SADC 107 123 accused in detail, and to downplay the offending, if anything, rather than to exaggerate it, as it was such a cause of embarrassment and unease for her. 732 As such, I am satisfied that the circumstances in which LGF made the initial complaint to JMT and what she told her demonstrate a degree of consistency of conduct on her part. 733 I further accept the evidence of both LGF and LF, that LGF disclosed the alleged offending to LF when she spoke to him in the car, following her attempted overdose on Panadol, at which time she disclosed further information as to the circumstances of the offending, by way of an elaboration of the initial complaint. 734 LGF could not recall the exact words used by her during this conversation, other than she told LF that the accused had been touching her for a while now. However, I accept LF’s evidence that he prodded LGF to give him more details, so that he could understand what had happened. He remembered her telling him that he could not tell KW as LGF was worried the family would fall apart. I accept LF’s evidence to this effect. His recollection of this aspect of the discussion is consistent with LGF’s own concerns about keeping the offending to herself, in order to protect the family. Similarly, LGF’s reluctance to talk to him about the details of the alleged offending is consistent with her presentation during the interviews with Officer Kittel and at trial. 735 LF also recalled being told by LGF that in addition to saying that the accused had touched her inappropriately, she told him about feeling the accused’s penis on her back, when they were cuddling and about an incident in the lounge room. LF’s recollection as to the latter incident was that LGF told him the offending happened when she and the accused were sitting on the couch, and he described conduct which was very different to that described by LGF in her evidence. 736 LF gave evidence that he had a memory that LGF told him the offending started ‘after the big acid trip, which was my birthday. Or the night [the accused] ran away and stuff’.490 Although there was no specific evidence as to precisely when this party was (ie was this a party for his 16th or his 17th birthday). Having regard to LF’s evidence about his consumption of ‘other drugs’, which he claimed only started during mid-2020, I consider it likely to be a reference to his 17th birthday. If the alleged offending in the tent occurred in April 2020, then, this was before LF’s 17th birthday. 737 As previously stated, LF gave evidence that LGF was unintelligible for much of the conversation. As previously stated, it may well be that LF has misinterpreted some of what he heard during that conversation. I accept his evidence that he now recalls these things being raised by LGF during that conversation, however whether his recollection is accurate, given the way in which that conversation unfolded, the obvious heightened emotions involved for both he and LGF and his 490 T 148.10-11. -- 125 of 127 -- [2024] SADC 107 124 stated difficulties in understanding some of what LGF was saying, is uncertain. As such, I am not satisfied that his memory of precisely what LGF told him about the offending is accurate. 738 LGF spoke to LF about the offending, it being when she was at a very low point in her life, just after the attempted overdose. I am satisfied this demonstrates consistency of conduct. While there were some differences in what LF recalls LGF telling him about the details of the offending and LGF’s account of the offending, what LGF told LF about the nature of the unlawful sexual acts, together with the fact she told him something happened in the lounge room, is consistent with what she told the Court. As stated, any differences in the details recalled by LF are likely due to a misunderstanding (or misremembering) on his part of what she told him at that time. 739 I am satisfied therefore that the complaint evidence demonstrates a degree of consistency of conduct on behalf of LGF. Summary 740 For the above reasons, after carefully considering LGF’s evidence, I am satisfied beyond reasonable doubt that she gave a truthful account of the offending. I am further satisfied beyond reasonable doubt that LGF is not mistaken about, nor did she dream, the offending, and that the offending is not the product of LGF’s imagination due to the consumption of illicit or other substances. 741 I am further satisfied beyond reasonable doubt that LGF’s memory of the occurrence of the various unlawful sexual acts as described by her, is reliable. Findings 742 I accept LGF’s evidence and am satisfied beyond reasonable doubt that during 2020, on multiple occasions, when the accused was sleeping in LGF’s bed with her, the accused massaged her buttocks, touched her breasts, touched her vagina and inserted his finger into her vagina, in the circumstances as described by LGF. Notwithstanding I heard no evidence from Sadie, I am satisfied beyond reasonable doubt that there was an occasion when LGF and the accused and Sadie were all on LGF’s bed, after they had been out together, drinking, and LGF woke to find the accused’s hand under her bra. 743 I am further satisfied beyond reasonable doubt, that on one occasion, during 2020, when the accused was sleeping in LGF’s bed with LGF, he caused her to touch his penis, in the circumstances as described by LGF. 744 I accept LGF’s evidence and am satisfied beyond reasonable doubt that on a single occasion, when LGF was aged 12 and sleeping in the lounge room, the accused came and lay next to her, at which time he touched her on the vagina and inserted his finger into her vagina, in the circumstances as described by LGF. -- 126 of 127 -- [2024] SADC 107 125 745 I accept LGF’s evidence and am satisfied beyond reasonable doubt that on an occasion, during the relevant period, after she, the accused and Sadie had been drinking and they slept on her bed together, the accused massaged her breast, under her bra, in the circumstances as described by LGF. 746 I accept LGF’s evidence and find beyond reasonable doubt that there was an occasion during the relevant period, when she was in the tent outside at Kenneth Road with the accused and he touched her inappropriately. As LGF could not recall the details of that incident more clearly, I am not satisfied that he inserted his finger in her vagina on that occasion. 747 I accept LGF’s evidence and find beyond reasonable doubt that when she was alone with the accused at JMT’s house on New Years Eve 2020, and on one occasion, in his room at RW’s house at Ethelton in January 2021, that the accused touched her buttocks, in circumstances which were indecent. I am unable to find that any further unlawful sexual acts occurred on either of those occasions. 748 I find beyond reasonable doubt that on each occasion that the accused touched LGF, either on her buttocks, breasts and/or vagina, and on the single occasion he caused her hand to touch his penis, that this conduct was accompanied by circumstances of indecency and occurred when LGF was under the age of 14. Each such occasion therefore amounted to the offence of aggravated indecent assault, being an unlawful sexual act. 749 Further, on each occasion that the accused inserted his finger (or fingers) into her vagina, he committed an unlawful sexual act, being unlawful sexual intercourse with a person under the age of 14. 750 As to count 1, I am satisfied beyond reasonable doubt and find that during the relevant period: 1. The accused knowingly maintained a relationship with LGF. 2. During the course of that relationship, the accused engaged in two or more unlawful sexual acts with LGF. 3. At the time, LGF was a child. 4. At the time, the accused was an adult. Conclusion 751 I find the accused guilty of count 1. 752 As counts 2, 3 and 4 were laid in the alternative, there is no requirement for me to deliver a verdict on those counts. -- 127 of 127 --