Azarian v The State of Western Australia [2020] WADC 65 | Case summary

Azarian v The State of Western Australia [2020] WADC 65 | Case summary | Zoe

[39]

The accused is charged with 18 charges of sexual offending against three different complainants.
Counts 1 to 3 concern the first complainant 'G'. He is a second cousin of the accused. Counts 1 and 2 allege that on an unknown date between 30 April and 1 July 1982, the accused unlawfully and indecently dealt with G, a child under the age of 14 years, by touching G's penis with his hand and engaging in fellatio. Count 3 is a charge of unlawful and indecent assault of G touching his penis, which is said to have occurred on a date unknown between 28 February 1987 and 1 October 1987.
Counts 4 to 7 inclusive concern the second complainant 'J'. He is also related to the accused; he is a nephew by marriage. The alleged offending against J is said to have occurred between 11 May 1999 and 13 May 2001, when J was over the age of 13 years and under the age of 16 years. Counts 4, 6 and 7 all allege an indecent dealing by the accused doing an indecent act in the presence of J, namely masturbating. Count 5 alleges an indecent dealing by the accused placing J's hand on the accused's penis.
The third complainant is the accused's daughter, 'C'. The alleged offending against her is the subject of counts 8 to 18 inclusive, all said to have occurred on various unknown dates between 30 July 2001 and 1 August 2006. There are 10 charges of sexual penetration - counts 8, 9, 10 and 15 allege that the accused penetrated C's vagina with his finger; count 16 is an allegation that the accused penetrated her vagina with his penis; counts 12, 13 and 17 allege sexual penetration by the accused introducing his penis into her mouth; and counts 14 and 18 involve the alleged penetration of C's vagina with an object or thing. There is one charge of procuring C to engage in sexual activity, count 11.
The trial of these charges took place before me, sitting as both the judge of the law and of the facts, over eight days between 6 and 17 April 2020.
For the following reasons I find the accused guilty of counts 1, 4 to 7 inclusive, counts 8 to 13 inclusive and counts 15 to 18 inclusive, and not guilty of counts 2, 3 and 14.
In these reasons, because the complainants were children at the time, I have not included any details which might lead to the identification of the complainants. This includes changing names and deleting locations or other identifying details of locations, both generally and when quoting from passages of the transcript.

[40]

I have had regard to the principles set out in s 119 and s 120 of the Criminal Procedure Act 2004 (WA) relating to trials by judge alone. I have reminded myself of the following legal principles which apply to my consideration of this case.
The accused is presumed to be innocent of the charges brought against him.
The burden of proving each charge rests on the State of Western Australia. The accused does not have to prove anything in this trial.
The State must prove each charge beyond reasonable doubt. If there is a reasonable doubt as to whether the accused is guilty of one or more of the charges, then it is my duty to acquit him on such charge or charges upon which I have such a reasonable doubt.
There are 18 offences with which the accused has been charged in this trial. I must not draw any inference against the accused or make any conclusion against him or be prejudiced against him because there is more than one charge. I must determine each charge separately, based on the evidence relevant to each charge. My verdict does not have to be the same on each charge. I cannot find the accused guilty of any charge unless the evidence in relation to it satisfies me beyond reasonable doubt that he did commit that offence.
The evidence is of course what witnesses have said on oath and the exhibits which have been produced. What counsel have said is not evidence.
I must assess the evidence dispassionately and objectively and not decide the case on any prejudice or sympathy.
I am not permitted to undertake, and I have not undertaken, research of my own in respect of the evidence and I must decide the case only on the evidence which the parties have decided to place before me.
I must not guess or speculate about matters which are not in evidence. I may, however, draw inferences from proven facts. An inference is a logical deduction from facts which I find proven. I can only draw an inference against the accused if it is the only reasonable inference, or conclusion, that can be drawn consistent with the proven facts. In drawing inferences, I do not consider the facts in isolation but consider them as a whole.
So far as the evidence of witnesses is concerned (and the witnesses include the accused who elected to give evidence in his defence in this trial), it is necessary for me to consider the credibility or believability of each witness, the reliability and accuracy of his or her evidence, and the weight to be given to it. A witness may be truthful but have a poor memory or otherwise be mistaken. I am able to accept all or part of the evidence of any witness and disregard all or part of the evidence of that witness.
The evidence of G and C was recorded on two other occasions before another judge. Each of the complainants (whether the evidence was pre-recorded or not) gave evidence from a remote room which was linked by closed circuit television to the court room. The giving of evidence in these ways are routine practices of the court and I cannot draw any inference as to the accused's guilt from the use of these routine procedures.
So far as processing the evidence of the accused is concerned:[1]
- If I believe his evidence I must acquit him and return a verdict of not guilty.
- If I do not accept his evidence but consider it might be true, I must acquit.
- If I do not believe his evidence, I must put it to one side. That is because he does not have to prove anything in this trial. The question will remain: has the State on the basis of evidence that I do accept, proved his guilt beyond reasonable doubt?
There are some other legal principles relevant to specific aspects of the evidence which I set out later.

[42]

Each of counts 1 and 2 allege an unlawful and indecent dealing with G contrary to s 183 of the Criminal Code (WA) (Code) (as it then stood). For these charges the elements of the offence which the State must prove beyond reasonable doubt are:
1. Identity. The State must establish that it was the accused who did the act alleged.
2. That the accused 'dealt with' G.
3. That the dealing was 'indecent'.
4. That the dealing was unlawful.
5. That G was a child under the age of 14 years.
Each of counts 4 to 7 inclusive allege an indecent dealing of J contrary to s 321(4) of the Code. For these charges the elements of the offence which the State must prove beyond reasonable doubt are:
1. Identity. The State must establish that it was the accused who did the act alleged.
2. That the accused 'dealt with' J.
3. That the dealing was 'indecent'.
4. That J was a child over the age of 13 years and under the age of 16 years.
The words 'dealt with' include any physical contact, including touching. Counts 1, 2 and 5 all allege touching or physical contact. Counts 4, 6 and 7 do not allege any touching, but that the accused masturbated in the complainant's presence. As defined in the Code s 319(3)(c), a reference to a person indecently dealing with a child includes a reference to the person committing an indecent act in the presence of the child. Masturbating in front of a child falls within that definition.
A dealing is indecent if it is unbecoming or offensive to common propriety. The conduct must also have a sexual character. This is because the word 'indecent' can only be referrable to the involvement of the human body, bodily actions or bodily functions in a sexual way.[2] Conduct - whether a touching or an act in the presence of a child - which is sexual and which contravenes a right-thinking person's standards would be indecent.
Whether conduct is of a sexual character must be viewed in light of all of the circumstances including the nature of the conduct, the situation in which it occurred and any words or gestures accompanying the conduct.
A dealing is unlawful unless it is authorised, justified or excused by law. An example of how a dealing could be justified or excused by law is if it occurred by accident or occurred independently of the exercise of the will of the accused. The dealing in each of these counts must be intentional and willed. An accidental touching could not be a dealing.

[49]

The following is non-contentious or undisputed background evidence.
G met the accused, through their mothers, when G was about 10 years old and the accused was about 19 years old. G visited the accused at his parents' home, where the accused then lived. The accused also went and picked up G from his home and took him to do activities like going to waterslide parks, cable waterskiing, going to the beach and similar activities. G described the accused as 'like a big brother', and that they were 'just good friends'.[8]
While the accused's evidence as to the circumstances in which he first met G and their family relationship was in substance the same as G's evidence, the accused stated that he met G at a later time, in 1983, when the accused was aged 20 or 21.
At the time of counts 1 and 2, the accused was living at his parents' home. G was aged either 10 or 11 years old and the accused was 19 or 20 years old.
The accused became qualified as a school teacher. In 1985 he was posted to work in a country town.
In 1986 when he was in Year 8 at high school, G had some academic and behavioural problems at school and had been expelled from a school he was attending in that year. G gave evidence of visiting the accused in the country town where he worked at the end of the school year. When G came back to Perth, he asked his parents if he could go and live with the accused and attend school in the country town.[9] His parents agreed, and G went to the country town to live with the accused and attend the school where the accused taught.
At the time of count 3, G was 15 years old, living with the accused in that country town. He started living with the accused at the start of year 9, 1987. Initially, it was just the two of them living alone together, but towards the end of the year they were joined by another housemate, S, an adult friend of the accused's.
At the end of the year, in November 1987, G made a complaint to S about the accused's sexual behaviour towards him. S told G that G had to call his parents, which he did, and then S drove G to his parent's house in Perth. G did not return to the country town.
In 1989 the accused was charged with the following offence (which I will refer to as the 1989 charge), to which the accused pleaded not guilty:[10]

[51]

The facts alleged in relation to the 1989 charge were, in summary, that one evening in November 1987 the accused and G were at the house with others watching videos and drinking alcohol. The others at the house were G's school friend, GL, who was staying overnight with him, GL's brother and his brother's girlfriend (S was not at the house that night). G and GL went to bed, sleeping head to toe in G's bed. G woke up to find the accused with his hands down G's pyjama pants and touching him on the penis. GL did not wake up.[11]
On the evening of the next day G spoke to S about this. S told him to ring his parents, which he did, and the next weekend G returned to Perth.[12] S also gave evidence of the complaint which G made during the trial of the 1989 charge (and was cross-examined in this trial on that evidence).[13]
Following the trial, the accused was acquitted of the 1989 charge.
The State has run its case concerning count 3 in this trial on the basis that this is a different occasion of unlawful and indecent assault. The accused's position is that count 3 is in substance the same as the 1989 charge for which the accused was acquitted. Thus the defence under s 17 of the Code is raised.
While living in the country town, the accused met a female teacher, P, who became his girlfriend. The accused and P married in 1991. They had three children together, C who was born in mid-1998, a son born in 1999 and another daughter in 2005.
J was the accused's nephew - the son of one of P's brothers. In his adolescent years, when he was in Year 8 and Year 9 at school, J began to have behavioural difficulties at school. J began to spend time with the accused and his wife, visiting the accused's home on most weekends and spending the night there on occasions. J described the accused as a 'father figure'. J's own parents struggled with raising him through his teenage years and he was struggling at school. At the start of Year 9 he was suspended from school for two weeks and then a short time later he was suspended for one week, after which he left school.
At the time of counts 4 to 7, between May 1999 and May 2001, J was aged between 13 and 14 years old and the accused was aged 36 to 38.
At the time of counts 8 to 18, between 30 July 2001 and 1 August 2006, C was aged between 3 and 8 and the accused, her father, was aged between 38 and 43.
In 2010 the accused was charged with other offences of sexual offending against a child, indecently dealing with a boy.[14] After a trial in August 2010, the accused was acquitted.
In mid-2017 the accused and his wife, P, separated. She has since remarried.
On 26 July 2017 the accused was arrested in relation to charges of sexual offending against a young boy, 'A'.[15]
On 4 September 2017, the accused became aware of the allegations made against him by another young boy, 'L', and each of the three complainants in this trial, G, J and C.[16]
In 2019 the accused pleaded guilty to the charges of sexually offending against A, and two further charges of sexually offending against L.
The accused admitted in cross-examination that he had a sexual interest in boys 'around about 12 years of age', but denied any sexual interest in young girls. He agreed that he had been attracted to young boys for a long time, and when it was put to him that he had had that interest since he was around 19 years of age, the accused responded 'I won't deny that'.[17]

[52]

The State produced evidence of the accused's conduct the subject of the convictions in 2019. The evidence produced was in the form of some agreed facts, which became exhibit 1A in this trial.
I do not propose to repeat in these reasons all of the facts relating to the conduct of the accused the subject of these prior convictions. In summary, however, there were two victims, both young boys. The first victim, A, was aged 11 to 12 years old and the second victim, L, was 11 years old. The sexual offending against A and L occurred between August 2016 and August 2017.
In relation to the first victim, A, the accused pleaded guilty to six counts of indecent dealing with a child under 13 years, one count of sexual penetration of a child under 13 years and one count of attempted sexual penetration of a child under 13.
The first three offences of indecent dealing involved the accused showering with A, washing A and hugging him in the shower on three different occasions (counts 1, 2 and 3).
On another occasion in July 2017 the accused committed the sexual penetration, three further indecent dealings and an attempted sexual penetration against A (counts 4 to 8), one after the other. The offending started with the accused lying on a mattress with A watching a movie. The accused was drinking alcohol and provided an alcoholic drink to A. After A undressed himself intending to change into his pyjamas, the accused told him to stay undressed and then the accused undressed himself. The accused performed fellatio on A, then took hold of A's hand, placed it on the accused's penis and encouraged A to masturbate him. The accused then placed his hand on A's buttocks. A pulled away and went and had a shower. The accused got into the shower, naked, with A, rubbed his buttocks and then attempted to insert his penis into A's anus. He then washed A, hugging him tightly.
Some of what happened between the accused and A on the occasion in July 2017 was seen by three witnesses watching from outside the house - the accused's daughter C, the accused's son and a friend of theirs. They saw part of the incident and rang the police.
In relation to the second victim, L, the accused was convicted of two counts of indecent dealing with a child under 13 years (counts 9 and 10), both of which occurred on two different occasions between 1 June and 30 July 2017. The first incident of indecent dealing involved the accused getting L to sit on his lap, placing his hands over L's groin area and using his thumbs to stimulate L's penis. The second incident also involved the accused making L sit on his lap, shifting his hands close to L's groin area, resting his hands on L's penis (over his clothes) and moving his thumb over his penis.
The tendering of this evidence of the accused's conduct the subject of the prior convictions was not opposed, and the defence admitted the facts of the prior convictions. (I will refer to this as the 'prior convictions' as a convenient short hand way of referring to the accused's conduct set out in exhibit 1A). The State had earlier obtained the leave of another judge of this court to adduce the evidence of the prior convictions pursuant to s 31A of the Evidence Act 1906 (WA).
I did query with counsel at the beginning of the trial whether the evidence of the prior convictions was being relied upon by the State only for the charges relating to G and J, or also with C. I was advised it was relied upon for all charges.
The purpose of leading this evidence, as described to me by counsel for the State, was as both relationship and propensity evidence. It was evidence of the propensity of the accused to engage in sexual activity with young children and evidence of the attitude and conduct of the accused towards young children. The prior convictions showed the accused had a sexual interest in young children, which he acted upon. This tendency or propensity made it significantly more likely that he had engaged in the type of behaviour alleged by the complainants in this trial.
As I have already set out, the accused admitted during the course of his evidence that he had a sexual interest in young boys, which had existed from the age of 19. He denied any sexual interest in young girls, or C.[18]
He was, however, cross-examined in relation to count 17, which it was alleged occurred during a shower with C, about his previous conduct in getting into a shower and sexually offending against A.
At the end of the trial, having heard all of the evidence, I asked again for the State to identify the purpose for which the evidence of the prior convictions was led. I indicated that now having heard the evidence, and notwithstanding the earlier ruling by the other judge of this court, I would hear submissions on whether the evidence of the prior convictions had significant probative value and should be used when determining the charges relating to C.
The parties have made submissions about whether I should use the evidence of the prior convictions for all counts (which was the State's submission), or only those relating to G and J (and excluding the shower incident, count 17, which was the submission made on behalf of the accused).
Having considered the submissions and applying the principles in recent authorities,[19] I am satisfied that the evidence of the prior convictions discloses the accused's sexual interest in children of a particular sex and age bracket, namely young boys around the age of 12 years, and a tendency to act on it, including by touching the young boy's penis, performing fellatio and getting the young boy to masturbate the accused. This is significantly probative and rationally affects the assessment of the probability that the accused acted as alleged against G and J in counts 1 to 7 inclusive.
I am also satisfied that the probative value of the evidence of the prior convictions compared to the degree of risk of an unfair trial for the accused in relation to counts 1 to 7 is such that fair-minded people would think that the public interest in adducing all relevant evidence should take priority over the risk of an unfair trial. To alleviate the risk of an unfair trial, I have given myself specific directions in relation to the evidence of the accused's prior convictions, which I have set out in [355] - [360] below.
While the evidence of the prior convictions has probative value in relation to the third complainant, C, I am not satisfied that the probative value is significant. The evidence of the prior convictions does not, in my view, establish that the accused had a sexual interest, and a propensity to act on that interest, in children other than young boys. In addition, the nature, quality and extent of the conduct the subject of the prior convictions is, in my view, fundamentally different to the charged acts against C. Accordingly, the extent to which that evidence is capable of rationally affecting the assessment of the probability that the accused acted as alleged in any or all of the charges relating to C cannot properly be characterised as significant.[20]

[53]

G gave evidence of spending time at the accused's parent's house where he lived at the time. G's evidence was that he often stayed there overnight.[21]
He gave evidence of counts 1 and 2 happening during the same incident, when he was approximately 10 or 11 years old. Earlier, however, G had described how he was 10 years old when he met the accused and that this incident happened about a year later.[22]
G said he remembered this incident because it was around the time of his birthday and the accused suggested that they could celebrate his birthday and have 'a few drinks'. His evidence was that on the day of this incident he and the accused went to the beach during the afternoon to a local surf club, going for a paddle on the club boards there. The accused drove back to his place with G in the passenger seat. The accused stopped and bought some beer on the way home. G had a specific memory of the beer being in long necked bottles and that the brand was Coopers Ale.[23]
The accused told G that his parents were away for the weekend and that is why they could have a few drinks. G had never drunk alcohol before. The accused poured drinks into small glasses and they played a game where they had to drink as many as possible in a short period of time. G remembered he was very drunk, feeling dizzy and a little bit ill.[24]
This drinking and what followed took place in the living room of the accused's parents' home. The accused had pulled out a mattress from the bedroom and put that on the floor in front of the television and the two of them sat or laid on the mattress to watch a movie. While G lay on his left hand side facing the television, the accused lay behind him 'spooning' G. Somehow, although he could not remember how, both he and the accused were only wearing briefs. The accused put his hand on G's penis and started stroking it, over his briefs, moving it up and down.
G gave evidence that he froze in fear and did not know what to do. He thought that he coughed and rolled onto his stomach so that the accused could not reach his penis, then pretended to be asleep.
G then described how the accused stood up, turned off the television, picked up G and laid him on his back on the mattress. The accused lay on his stomach between G's legs, removed his briefs and put his mouth over G's penis and performed oral sex for approximately five minutes. G recalled that he had an erection.[25]
G could not remember what happened to cause the accused to finish what he was doing, but remembered how the accused pulled G's briefs back up, stood up and walked into a room, which G described as the spare room.
On the night of this particular incident G gave evidence that he slept on the mattress where it lay in the living room. Ordinarily when he stayed overnight, he slept on a mattress at the foot of the accused's bed in the accused's bedroom, while the accused slept in his bed. G gave evidence that he never slept in the accused's bed, but the accused used to get him to go in there in the morning when they woke up and G could remember there would be kissing and cuddling.[26] In cross-examination G described these as kisses on his back, and cheeks, which occurred about a dozen times.[27] He also gave evidence that this had occurred before the incident the subject of counts 1 and 2.[28]
G described how he and the accused did not ever discuss what happened on the night of the alleged incident the subject of counts 1 and 2, nor did G tell anyone about what had happened. As to why he did not tell anyone, he gave evidence that he was confused, scared, and trying to rationalise it.[29]
After this incident, he saw less of the accused. He gave an explanation that he realised what the accused had done was wrong, even though he did not understand it completely, and thought that he would not put himself in that situation again.[30]
There followed a time where G did not do well at school, as I have described in [52] above. G gave evidence that the accused came and visited G and his family, and arrangements were made for him to see the accused again after that, with the two of them participating in some of the activities G had previously enjoyed with the accused, such as going to water parks.
By this time the accused had been posted to work in the country town. G gave evidence of visiting the accused in that country town at the end of the school year. He made some friends in the town. When he came back he asked his parents if he could go and live with the accused and attend school in the country town.[31] When asked whether he had any concerns about doing this, G answered that he should have, but he remembered explaining them away to himself at the time. He explained this further:[32]

[55]

G then went to live with the accused at the start of the next school year, which was Year 9. Initially it was only G living with the accused but later in the year a housemate, S, who was an adult and close to the accused's age, moved in.
G gave evidence that as the year progressed the accused became more authoritarian, and was strict about doing chores and strict about where G went and who he spent his time with. However, he was allowed to drink alcohol on a few occasions, with the accused.
The circumstances of count 3 as given during G's evidence was that this happened at night after he had been with the accused watching a football grand final. On returning home they began to drink beer. GL, a school friend of G's, was also there at the house drinking beer with G and the accused and listening to music. GL went home, after which G went to bed. The other housemate S was not in the house that night but was away in Perth.[33]
G's evidence was that he woke up to find the accused sitting on the side of the bed. He had his hand down G's pyjama pants, playing with his penis. When asked to describe what he meant when he said that the accused was playing with his penis, G answered 'from memory, he was like rolling it around in his fingers'. G described how he was petrified, coughed to let the accused know that he was awake and when that did not work, G rolled onto his stomach. The touching then stopped and after a while the accused stood up and walked out of the room. G did not consent to this touching.[34]
G gave evidence that this time was different from the alleged touching the subject of the 1989 charge, of which the accused was acquitted. G described how while it was similar, in that he had been drinking at the house with the accused and GL, there were other people there, namely GL's older brother and his girlfriend. Also on this occasion GL had stayed the night, with G and GL sleeping top to toe in G's bed.
As to which of the alleged incidents happened first in time, in examination-in-chief G believed that the incident where GL had stayed the night (the 1989 charge) happened first, and that there was a time difference between the two incidents of one to two months.[35] He said he had not told anyone about what happened on that first occasion, and believed he told someone after the second time (ie: the one the subject of count 3). He later stated that the 'last time' or 'second time' was the time without GL staying over, meaning the subject of count 3.[36]
G gave evidence that he spoke to S two nights afterwards, describing how he basically broke down crying and said '[the accused] has been coming into my room at night after he's - after we've been drinking'. S was adamant that G needed to tell someone straight away, so G telephoned his father.[37] G's evidence was he phoned his father from a payphone in town the next night, and told his father that the accused had been letting him drink and that the accused was coming into his room and touching him.[38]
G was cross-examined at length about the circumstances of each count, but maintained his earlier evidence.
There was also much cross-examination of G about matters which he had mentioned in his evidence in this trial which he had not previously mentioned. He was also cross-examined about aspects of his evidence in this trial which in some way differed from previous statements he had given, either to the police, to prosecutors or during his evidence at the trial of the 1989 charge. The following are relied on by the defence as inconsistencies which affect G's credibility and reliability.
As to the age which G said he was at the time of counts 1 and 2, he admitted that he was not 100% clear of his age at the time of counts 1 and 2, saying it was either 10 or 11, and around the time of his birthday. This was the first time he had drunk beer.[39] In his evidence at the trial of the 1989 charge, G had said he was 12 years old when the accused gave him his first drink.[40]
When he gave a statement to police in 1989 about what the accused had done to him in the country town, G made no mention of the accused touching G's penis or giving him 'a head job' at the accused's parents' house when he was 10 (or 11) years old.[41] G agreed that when he gave his statement to the police in 1989 it would have been the perfect time to say something, but went on to give the following explanations:[42]

[57]

During his evidence in the trial for the 1989 charge G did give evidence that the accused had put his hand on his penis when he was 12 years old, whereas in this trial his evidence was that he was around 10 to 11 years old.[43] However, he made it clear that when he gave evidence that the accused touched his penis when he was 12 years old, he was referring to the incident the subject of count 1.[44]
Relevant to count 2, during his evidence in the trial for the 1989 charge, while he gave evidence that the accused had touched his penis when he was 12 years old, he specifically denied that the accused had given him 'a head job' when he was younger. G gave an explanation for this denial, saying that he was very embarrassed and did not want to talk about the accused giving him a head job, he was young at the time of the trial (17 years old at the time), he was in an open courtroom full of people, his father was in the courtroom and it was 'very traumatic'. G did admit, however, that he appreciated that during the trial of the 1989 charge he was under oath to tell the truth and he was giving evidence to the court about a serious offence.[45]
In his previous statements to police, both in 1989 and in 2017, G had not mentioned being kissed and cuddled in bed by the accused while at his parents' house. G did not mention kissing and cuddling until speaking with the prosecutor before this trial. He did, however, explain that he did not recognise this as inappropriate when he spoke to the police originally in the 1980s, but after having children himself, he would certainly object to such conduct if either of his children were involved. He told the prosecutor recently after going away, thinking about the whole thing and realising it was something that needed to be said.[46]
When G gave his statement to police in 1989 about what the accused had done to him in the country town, he made no mention of what has been referred to as the second incident, the incident the subject of count 3. The explanation which G gave for this was that he did not initiate contact with the police, the police came to him and he was reluctant to even talk about one of the incidents.[47] G did not make any complaint to police until 2017 when he heard that the accused was standing trial again.[48]
As to the timing of the two incidents, initially during cross-examination G maintained that the incident the subject of count 3 was the second incident, with the incident the subject of the 1989 charge being first in time. The following exchange taking place with counsel for the accused:[49]

[62]

S gave evidence that he had more than one conversation with G over the course of a few days. In the first conversation G told 'a story' that he had been 'touched up' when he was asleep at night. S gave evidence that G was known to be a troublemaker and loose with the truth, so he spoke to him more than once until the next Friday night when S drove G back to Perth.[56]
S gave evidence that when G first approached him, there were a 'lot of tears' and G was pretty emotional. S gave evidence that G basically said that the accused had come into his room late on returning home one night and had played with him in his sleep. G indicated that 'played with him' meant that the hand was touching his genitals and his penis.[57]
S gave evidence that he asked G to come to S's office so he could use the phone there to make a call to his parents.[58] S was in the vicinity but did not hear the call. As to when that call was made, S said it may have been made on the Thursday or Friday.
S drove G to Perth on the Friday of the same week, dropped him at his parents' home and never saw him again.
In cross-examination S agreed he had no recollection of what G said word for word, but S was almost 100% sure about G describing the touching of his genitals and his penis. S was not 100% sure that this took place in the first conversation.
S agreed that this was not the first time he had spoken about his discussions with G, and that he had given evidence during the trial of the 1989 charge. In that trial, S had given evidence about the same week he was talking about in this trial.[59]
S was cross-examined about the statement he made to police in 1989, which he adopted again in 2017, and differences between that statement and his evidence. He agreed that in his statement to the police he did not mention that G had used the words 'genitals' or 'penis', S had only said that G had said 'something to the effect that [the accused] had been playing with him in his sleep', and that S assumed it had been a sexual touching.[60]
However, in re-examination another part of S' statement to police was put to him where it was said 'The first time that I was aware of any problems between [G] and [the accused] was when [G] told me that [the accused] had touched him sexually'.[61]
S was also cross-examined about his earlier evidence in the trial of the 1989 charge, where S had given evidence that G had approached him and said 'that he had been touched sexually and so on in his sleep' and that G had inferred that it had been the accused. S agreed that for the purpose of giving evidence in court, he had told the truth and it was fair to say that in 1989 he had a better recollection of the events.[62]
S also agreed that in his evidence in the 1989 trial he had said that he suggested to G that he (S) was not going to believe him at all unless he did make the effort to ring his parents and let his parents know.

[64]

The accused agreed that G had often visited his parents' home, however he gave evidence that when G did so he was always in the company of his mother.[66] Later in cross-examination, however, the accused agreed that there were occasions when he was alone with G when he was a young boy from the age of 10.[67]
The accused gave evidence that he spent more time with G towards the end of 1984. G was having troubles at school and as the accused was a qualified teacher, G's mother had talked to him about G's problems. The accused and G had 'a bit of a rapport' going on towards the end of 1984 and spent time together, probably once every couple of weeks or so.
When asked what kinds of things they would do together, the accused said his recollection was that at that stage they probably went to the beach together a couple of times.[68] The accused also gave evidence that he could not recall his parents going away during the time he spent time with G.[69]
The accused gave evidence that G never spent the night at his parents' home and had never shared a bedroom with the accused at his parents' home. G never had a reason to sleep on a mattress at any point at the accused's parents' home while he was there. The accused could not recall any night where he and G had spent the night together in this parents' home.[70]
He denied ever touching G's penis with his hand or engaging in fellatio with him, in either the living room at his parents' home or anywhere else. The accused maintained he had never done anything sexual to G.
In 1985 the accused was posted to the country town as a teacher. When the accused was asked to take G with him to the country town, by then he had been working as a teacher in that town for two years. The accused's understanding was that it was G's mother's idea for G to live with the accused, and that G's parents were at their 'wit's end'. It was proposed that G come to live with the accused to see if that would sort him out. G then came up for the 1987 school year and repeated Year 9 at the school where the accused taught. G was a student in a couple of classes taken by the accused.[71]
In the house at the country town G had his own bedroom, as did S when he lived at the house in the second half of the year. The accused described his relationship with G as very good initially.
The accused gave evidence that G went back to Perth on school holidays and the occasional weekend. After the second set of school holidays, mid-year in July, the accused's relationship with G changed. G returned from Perth with a different, 'dreadful' attitude which then became worse. He began to get into trouble and the accused had to discipline him. The type of things he said he disciplined G about were smoking, sneaking out, particularly sneaking out and drinking. The accused gave evidence that he did not tolerate smoking, did not tolerate G sneaking out and drinking, or either of those two separately ie: sneaking out and/or drinking.[72]
When the accused confronted G with information about what he had been doing, G would deny he had done anything and the two of them would argue. This became more of an issue as the year went on. Eventually G left in November that year.
The accused denied doing anything sexual with G in the house they shared in the country town, and specifically denied doing the acts the subject of count 3, or indeed anything sexual to G at all. He denied that he had got G drunk at any point.[73]
In cross-examination while the accused admitted he was fond of G, in a non-sexual way,[74] and enjoyed G's company, the accused denied having any sexual interest in G. While the accused admitted that he had a sexual interest in young boys, he denied having acted upon it.[75] He said he had a girlfriend at the time, had always had a steady girlfriend from about the age of 18 and he said 'I have always enjoyed a good, solid sexual relationships with my girlfriends and my wife'.[76]
Immediately after saying that, however, when he was then asked about his offending against A and L which took place while he was married to his wife, the accused then gave an explanation that he had been depressed, medication he was taking had interfered with his sex life with his wife and he was under enormous amount of stress at the time.[77]
In cross-examination the accused agreed that before he went to the country, he spent time alone with G. When asked about going to the beach, the accused added that 'we went to the surf club and to the rooms' and then agreed that it was just him and G, although he said that this was in 1984 and not earlier.[78] The accused also agreed that he went to a water park but could not remember whether that was in 1984 or 1986. He then added that if they went to the waterslides, it was always with the accused's brother and a few friends.[79]
The accused agreed he had watched movies with G when G lived with him in the country town, but denied having watched any movies with G when at his parent's home, but then changed this slightly to say 'I don't recall ever watching a movie at that house with [G]'. The accused had no recollection of lying on a mattress with G.[80]
Having previously said that he did not tolerate G drinking, in cross-examination the accused's evidence changed when he gave evidence that towards the end of his stay in the country town, he allowed G to have some alcohol.[81] He later stated that there were a few occasions towards the end of the year when G drank alcohol in front of him. The accused would allow G to drink sips of his beer from time to time.[82]
Later in cross-examination, the accused was taken to a statement he had provided to the police in 1989 (in relation to the 1989 charge). In that statement, the accused had said that G 'would have had a couple of glasses of beer'. The accused stated that this was an estimate he had given of how much G had drunk, and denied that G was drinking from a glass, as opposed to taking sips from the accused's beer.[83]
While the accused agreed that G's friend GL had also drunk alcohol in front of the accused at the accused's home, he denied that there had been any occasion where just he, G and GL were home drinking alcohol. The accused stated that there were always others present.[84]
The accused gave evidence about G's departure from the country town. The accused said he did not know G was leaving or had left for good until the following Monday. He heard from the principal of the school that G had made an allegation against him. The accused agreed that after this he never tried to contact G or his parents. He denied that this was because he knew he had touched G's penis.[85]

[65]

J's evidence about count 4 was that the indecent act the accused is alleged to have done in J's presence, namely masturbating, arose while they measured each other's penises. This count came to be referred to as 'the measuring incident'.
J's evidence was that this happened in the living room of the accused's house. The two of them had been watching TV. J was unable to recall exactly how this came about, but he gave evidence that he and the accused would always talk about sexual things and what J should expect. J asked the accused whether his penis was the right size or too small and the accused suggested that they measure it and find out. The accused got up to get a ruler and came back to the couch. Both the accused and J both pulled their pants down and measured each other's penises. J described how he and the accused were both hard (ie: their penises were erect). He said that they were stroking their penises to get them hard in order to measure them.[86] That was subsequently clarified, in both examination-in-chief and cross-examination, as both stroking their own penises and stroking each others' penises.[87]
J gave evidence that C (who was very young, a toddler, at the time) was present in the house during this incident and grabbed the accused's penis when he got up to get tissues from the kitchen, after ejaculating.[88]
J gave evidence that he could remember the measurements. His penis was 16 cm long and the accused's penis was 14 cm or 14.5 cm. They discussed that this was normal, but when J made the comment about the accused having a small penis compared to J's, the accused got quite angry.[89]
J's evidence about count 5 was that he was at the accused's home, in the living room sitting on a couch watching TV when 'one thing led to another' and his hand was on the accused's penis. J started to masturbate the accused on top of his clothes. J was unable to recall how this started. The accused remained seated until he ejaculated - he told J that he had ejaculated. The accused then got up to get tissues. J at this time was aged 13, had pubic hair, and knew what masturbation was.[90] I will refer to count 5 as the 'over the pants masturbating incident'.
J gave a detail when describing this incident that 'If you were looking at us, I was on the right, [the accused] was on the left, on the same couch'.[91]
Count 6 is alleged to have occurred on an occasion when the accused and J travelled to a farm owned by P's brothers (also J's uncles, J's father's brothers). J gave evidence that he had been to this farm at various times as a teenager. There were occasions that the family went there to work on the farm. On the particular occasion the subject of count 6, J's evidence was that he, his father and the accused drove to the farm together. J said his father drove his car on that particular occasion. J gave evidence that he had taken a pornographic magazine on that trip which he had placed under the driver's seat. This was a magazine which the accused had asked him to bring on the trip which J had obtained from a friend's father's garage. At lunchtime, the accused and J went together to get lunch from a lunch bar down the road. The accused drove. Before reaching the lunch bar, he pulled the car over to a side street or gravel track and asked J to get the magazine. J got the magazine out. The accused then pulled down his pants and started to masturbate to one of the girls in the magazine. The accused grabbed some tissues from his pocket, ejaculated into the tissues, then pulled his pants back up, threw the tissues out the window and drove off.[92]
In describing this incident the subject of count 6, which I will refer to as the 'farm incident', J gave evidence that he could remember the accused calling out the name of a girl in the magazine as he was playing with his penis.[93] In cross-examination he gave evidence that he remembered this happened during school holidays, although he could not remember which holidays.[94]
The final charge, count 7 was an event which took place at his grandparents' house and I will refer to this as 'the incident at the grandparents' house'. Present at the house was J, the accused, J's grandmother and grandfather and also P. They all went out and left J and the accused at the house. The two of them were in the TV room. J had the same pornographic magazine, which the accused had told him to bring with him. J said that he put this magazine inside another magazine so no one could tell what they were looking at.[95]
J gave evidence that he sat next to the accused, on the accused's right. Together they looked at the magazine which J described as an x rated magazine, where 'you could see everything'. One of the photos in the magazine was of a man with red testicles having sex with a lady, and all J and the accused could see was his red balls.[96] J asked the accused why they were red and the accused said it was because the man was about to ejaculate. The accused, who had pulled his pants down once everyone had left and started playing with his penis, then ejaculated. The accused went and cleaned himself up and J then hid the magazine. The two of them returned to watching TV. There was no discussion about what had happened.[97]
Apart from the evidence he gave about each of the charges, J gave evidence of other inappropriate or sexual conduct by the accused towards him.
J gave evidence that when he and the accused were travelling together in a car, alone, the accused would grab J's hand and put it on his inside upper thigh. J was able to feel the accused's testicles, as the accused usually wore shorts. J had no discussion with the accused about what was happening and did not tell anyone about it afterwards. At the time J thought nothing of it and thought it was just the accused being affectionate.[98] I will refer to this as the 'thigh touching'.
J gave evidence of another occasion in the living room when the accused took his skinfolds and asked J to strip down to his underwear. I will refer to as the 'skinfolds incident.' J gave evidence that the accused said to him 'look, if you want me to take your skinfolds, then you're going to have to take your clothes off'.[99] The skinfolds were taken by the accused by pinching and touching J all over his body - his arms, legs, stomach, chest and bottom.[100] In cross-examination J agreed that he wanted assistance from the accused in order to lose weight. He also agreed that the accused did not touch J's penis or testicles or rub or do anything with his genitals, at least not that J could recall.
J did give evidence that he told his mother about the skinfolds incident. His mother rang and told P, but nothing was done and it just 'got swept under the carpet'.[101]
Another occasion involving inappropriate behaviour which J gave evidence about was a time when he was staying over at the accused's home. J gave evidence that he and the accused spoke about sexual things all the time. They would talk about stuff that the accused would do with a cousin of his when he was younger and experimenting, and how they would do everything together except sex, so that they were experienced. J gave evidence that the accused counselled J to wait until he was 18 years old before having sex with females, but that he should start experimenting. The accused said it was the safest thing to experiment with a boy instead of a girl and try 'taking it up the bum and vice versa'. As J explained in his evidence, however, he was not that way inclined.[102] I will refer to this incident as the 'sex talk'.
J gave evidence of having played squash quite regularly with accused, after which they would always shower. They were both always naked in the change rooms, both J and the accused. J said he always was a bit funny about being naked but the accused told him it was perfectly normal to be naked in the shower area. J said he did not feel comfortable but the accused always said it was nothing to be ashamed of.[103] I will refer to this as the squash incident.
J gave evidence that the sexual things happened when he was between the ages of 13 and 14. He gave evidence that most Saturdays when he was at the accused's house, P was not home, as most of the time she was out playing softball or out with friends. C was just a baby.
At the age of 15, J got a girlfriend and did not then see much of the accused and his wife, rather he spent more time with his girlfriend. J could recall a particular conversation with the accused when, after J had lost his virginity he called the accused to let him know. The accused got angry with him.[104]
J gave evidence that these occasions he had spoken about were not the only times, there were various times. J explained that he had 'blanked' a lot out of his memory, but these were the 'ones that just really I just can't leave, just don't leave me'.[105]
In cross-examination J gave evidence that he met his wife 11 years ago and they had married in 2011. J had invited the accused and P to the wedding. From about 2009 J and his wife had been good friends with the accused and P. They would go out together and have dinner at each other's homes. During that time, J had also become close to the accused's daughter, J's cousin, C.[106]
J agreed that in 2010 he became aware that the accused was facing criminal charges which related to a young boy, although J was not 100% clear that he knew that the charges related to alleged sexual offending against the boy. As J explained it, he knew something, but everything which came out of that family was 'sugar-coated', so everything was always made out to be not as bad as it actually was. However, J agreed that he knew there were legal proceedings and he also agreed that he offered support of a personal nature to the accused during that time, checking up on him and in effect being concerned for his welfare.[107]
J agreed that he sought advice and assistance from the accused on things such as business, the purchase of cars, and properties, and that the accused also helped with some renovations on J's first home. J agreed that the accused was not only a father figure to him but also one of his closest friends.[108] Later J stated that the accused was his 'best friend'.[109] As put to him by counsel for the accused, and as J had said in his examination-in-chief, part of why the accused was in that role was because J's parents weren't capable of providing that sort of support.[110]
J and his wife had a child, a son to whom I shall refer as 'H', in October 2015. J agreed that the accused and his wife babysat H on occasions over a short period of time (months) when H was under 1 year old.[111] In 2016 J asked his cousin C to be the godparent of his child, but that offer was withdrawn at the end of 2016, when J's wife was not happy about C being a godparent and they decided that C was 'not the right person'.[112]
J was cross-examined about his evidence that on Saturdays P played softball. J said he understood she played competitive softball.
He was also asked about whether the accused worked at his uncles' farm each Saturday. J responded that he knew the accused worked there but J did not think the accused worked there every Saturday. Counsel for the accused then suggested that the accused worked there 'most Saturdays'. J said he could not recall, but he only really remember the accused working at the farm during school holidays.[113]
In cross-examination J was taken to what counsel for the accused has submitted are inconsistencies between his evidence at trial and what he had previously told police and prosecutors.
In relation to count 4, the measuring incident:

[83]

Another version of what happened at the grandparents' house, was put to J in cross-examination and denied by him. The substance of this version was that one Easter time he went to church with the family, went in a car with the accused back to his grandparents' house, and the accused found him masturbating in the back room. J denied that this ever happened.[133]
J agreed that his mother caught him having girls in his bedroom 'all the time' but when it was put to him that this happened when he was 13 or 14 J disagreed, and said that it was not before his first serious girlfriend at the age of 15.[134]
In relation to the thigh touching, while J told police that the accused 'would drive me around and place my hand on his upper inner thigh near his testicles', J said nothing about feeling the accused's testicles and said nothing about this to the prosecutors before trial.[135] During cross-examination J gave evidence that this had happened every time J and the accused were in a car together, however J also gave evidence of this having occurred in two cars in particular, a silver 4-wheel drive and a red Holden Berlina. There was no reference to either of these cars in J's statement to police. However, I do note that consistently with his evidence at trial, he told the police that this happened 'every time I was alone in the car with him'.[136]
J agreed that in 2016 he had some conversations with C about whether or not her father, the accused, had done something sexual to her. The conversations took place mostly by text but there were a couple of face to face discussions.
J agreed that he had gone with C to the police to make their complaints about the accused together. He admitted that he had encouraged C to go to the police, but denied he had talked her into it, or tried to convince her that it was her father who had sexually abused her. He also denied the suggestion that he and another aunt had tried to convince C that it was her dad. J's evidence was that he had never suggested it was her dad; he had only said 'when she's ready to tell me who it is, then that's when we will talk about it.'[137]
During the course of the cross-examination J denied that he told C details of the allegations he had made against the accused. He gave evidence that C had asked him specifically if he had been penetrated, and he said no.[138]
J was then taken at length through some of the text messages he had with C and these were tendered into evidence.[139] The purpose of this tender was, I was told by counsel for the accused, not for proof of what was in the messages, but 'to deal with evidence that he's said that he has not tried to convince [C] that it was her dad and also during the course of these messages, it was a plan that the two of them had'.[140]
J denied 'recruiting' C, as in getting C to believe that the accused had done something to her, or making up his allegations to help her.[141] As he explained it was 'everything was in her own time. I always said to her, 'no push, whenever you're ready, we can talk, it will stay between us'.[142] When the text messages sent by J to C spoke about a 'plan', J explained that this was about helping C, encouraging her to 'come forward' (by going to the police) and keeping C safe.[143]
In re-examination J was asked why, if the accused had sexually abused him as a child, J had asked the accused to his wedding, why he been friends with the accused and his wife, why he let the accused and his wife babysit H, and why he had only complained to the police in 2017. J explained:[144]

[85]

P confirmed in her evidence that J spent time at her home and there were occasions when he would stay the night. She gave evidence that J would come over on Saturdays and also during school holidays. He started staying over from the ages of 12 or 13, but before that he used to sometimes come and just 'hang' for the day or afternoon. J would help with her children, help the accused do handyman work, and basically do whatever the accused was doing.[145]
P gave evidence that J got into a lot of trouble at school in Year 9, and so she and the accused worked with the school and with J's parents, pulled him out of school and he got a job. In cross-examination she described the input which she and the accused had in J's upbringing as 'a lot'. She agreed that her brother, J's father, and sister-in-law would contact her on a regular basis for assistance in relation to discipline issues, and J getting into trouble at school.[146]
She spoke about the farm which is owned by two of her brothers, who acquired the farm in 1987. She gave evidence that the accused used to work on Saturdays and school holidays at the farm. In cross-examination she clarified that this work was on and off after the children were born, and mostly on Saturdays and school holidays, for extra money for the family.[147]
In cross-examination P gave evidence that her children C and her son were born only 16 months apart. She did not play sport between the birth of those two children and did not play softball on Saturdays.[148]
P gave evidence that while C and her brother were younger she worked part-time, including on weekends. Initially she worked both Saturdays and Sundays. Later she would work on either Saturday or Sunday, depending on the work she was doing, but not every weekend.[149]
P gave evidence that J had worked at the farm but only in paid employment on one or two occasions. She said she could not comment if he had not gone other times. P explained that the farm was a bit of an attraction for the kids. When asked in cross-examination whether J and the accused only went to the farm together once or twice, P answered that she had a recollection that they might have gone in the school holidays.[150] Later in her cross-examination P said that she would go to the farm for social reasons, sometimes they would take the kids 'or something like that', or her brothers would have a function there.[151]
P agreed that the accused would always drive to the farm and, when her brother, J's father, was working the accused would also take him. She agreed that J's father did not drive and pick up the accused.[152]
In cross-examination P gave evidence that she could recall a discussion she had with her brother (J's father) about J finding and watching some pornography which belonged to J's father. P said she did not know if that was true and she did not have a discussion with J about this. She did discuss this with the accused, but not in depth. She denied that when she and the accused spoke about this, it was from the perspective of disciplining J about it. Her evidence was that she never addressed that, and she never spoke to J about it. She candidly explained that she was more shocked to learn that her brother actually had pornography.[153]
P agreed that she and the accused were parental type figures for J when he was aged 13 and 14, but then corrected herself to say that when J was with them, he was always pretty good and they tried more to mentor him.[154]
When it was suggested to P that one of the things her sister-in-law spoke to P about in terms of J, was the fact that he would have girls in his room at home, P responded 'That was like when he was 19 or 20 or 18.' P did not agree with counsel for the accused's suggestion that this was happening when J was 13 and 14.[155]
P confirmed that after J was married, he and his wife began to spend more time together with P and the accused as friends. She described that there was a period of time from when he was 14 to a certain age when they did not see J, but from the latter part of 2010, including at the time of the criminal charges against the accused, J was supportive, and supported the accused during his trial in August 2010.[156]
P also gave evidence about babysitting J's son, H. That began towards the end of 2016 because J and his wife were struggling without a lot of other family support. P said that C was super keen to babysit. The babysitting was always at their house and when asked if the accused was also babysitting, P answered 'Maybe briefly but, yeah'. The last time they babysat was November 2016.[157]

[86]

In his evidence the accused agreed that there was a time, after C was born, when J was in Year 8 or 9 that J started spending time with the accused. This was a time when he was getting into trouble at school and J's parents asked for help. The accused agreed that he was required to deal with J in a discipline or parental type role.[158] He also agreed that there were many times when he was alone with J.[159]
In relation to count 4, the measuring incident, the accused said that event did not occur. He said he had never measured J's penis or masturbated in front of him or touched any part of J's body in a sexual way. There was never an occasion where he needed to clean up ejaculate while J was around, or a time when C grabbed his penis when he was cleaning up ejaculate.[160]
The accused also denied count 5, the masturbating over the pants incident. The accused said that this did not happen and he did not masturbate to the point of ejaculating using J's hand.[161]
In relation to count 6, the farm incident, the accused gave evidence that he worked at the farm most weekends, both Saturday and Sunday in the early days of the farm. It changed from regular work to every now and again in around the year 2000, maybe a bit before. He said he worked most school holidays.[162]
The accused gave evidence he drove himself to the farm, sometimes he got a lift from his brother-in-law, one of the farm owners, but he never got a lift to the farm with J's father. J's father usually got a lift with his brother, but sometimes the accused would pick him up.[163]
The accused gave evidence that J worked on the farm only once that the accused was aware of, and on that occasion he and J travelled to the farm with J's father. The accused drove his car.[164] J's father never drove him to the farm.[165]
The accused denied having done anything sexual to or with J on the day they were working on the farm, and said J never came on a lunchbreak with him. The accused gave evidence that he did not ask J to bring pornography to the farm, never looked at pornography in the car with J and did not masturbate in front of J in a car. He denied ever having looked at pornography with J.[166]
The accused gave evidence that something did happen in the car that day when he was driving J and his father to the farm. J's father was in the front passenger seat, the accused was driving and he could see J in the rear view mirror. J caught his eye and when the accused turned around to see what J was doing, J was 'being silly and it was sexual. It was, you know, like pretending to play with himself, or something'. J was sitting behind his father so his father would not have seen anything, but he asked what was going on because J was giggling and carrying on. The accused said J was not doing anything and 'don't worry about it'. [167]
As to count 7, the incident at the grandparents' house, the accused's evidence was that this did not occur, he had not looked at pornography with J at J's grandparents' (the accused's parents-in-law's) house, and had never masturbated to pornography at that house.[168]
The accused gave evidence of a time when J had masturbated at that house. The accused's evidence was that one Easter the family went to church and there was to be lunch at his parents-in-law's house after church. He drove there in his car with J, and others followed in other cars. He and J arrived at the house first. The accused retrieved the key, went to the front, unlocked the door, and turned off the alarm. He went to the kitchen and put the kettle on and got a few things organised and then unlocked the door between the kitchen and the lounge. When he opened the door J was sitting in the lounge and it looked like he was masturbating. The accused said and did nothing, except to back out into the kitchen, where he stayed until everyone else arrived.[169]
In cross-examination there were questions asked about how J had got into the lounge room. The accused gave evidence that hidden with the key to the front door, was also a back door key, and J used that to go in through the back way and J was in the lounge room, 'the back room'. The accused said that while he caught J masturbating in that room before anyone else had arrived back at the house, he did not confront J about what he was doing, did not tell him off and did not tell anyone else about it. He did not think that he even told P.[170]
The accused gave evidence that he was also able to remember an occasion where P had been contacted by J's mother and was told that J was watching 'very x-rated pornography', which the accused understood he had been watching with his father's permission, if not with his father. J was about 11 or 12. The accused then gave evidence that he and P went to J's home and the two of them, he and P, talked to J and to J's father about the pornography. J's father promised to lock the pornography away, but the accused gave evidence that he recalled that not too long later 'we were told that it happened again.[171]
The accused also gave evidence that when J was 13 or 14 the accused had a discussion with J about sexual matters, but this was a different discussion from that about which J gave evidence. The accused's evidence was that J told him he was in a relationship with a girl and that it was sexual. P had fielded calls from J's mother about him having girls overnight. The accused had talks with J about being safe and careful, let him know that it was upsetting his mother and told J he should not be doing it but if he did, he needed to take precautions. The accused spoke to J about those precautions.[172]
The accused admitted that he had conducted a skinfolds test on J. The accused's evidence was that J was interested in getting fit and muscular and wanted the accused to help him. J was at the time 'quite chubby'. The accused gave evidence that the skinfolds test was his idea, and that J might have taken his shirt off, but there was nothing sexual in it. The accused also gave the following evidence.[173]

[88]

In cross-examination the accused admitted that he had taken the skinfold measurements with his fingers, he did not have callipers and could not accurately measure his skinfold count. He also did not weigh J and did not know what his BMI was.[174]
The accused gave evidence that he had taken J to play squash on one occasion, and that was an occasion when the accused was playing with a friend. The squash court had a public change room. He could not recall if there were individual shower stalls or open communal showers. He denied telling J that it was perfectly normal to be naked in the shower area and nothing to be ashamed of.[175] In cross-examination the accused denied that he had wanted to see J naked in the shower.[176]
The accused described how after J left school and obtained a full-time job his contact with J was less frequent. The accused and his family then moved out of the metropolitan area. The family returned to Perth in early 2010. By this time J was engaged to his future wife. The accused said that J extended his friendship and support once the accused told him that he was facing a criminal charge. The accused gave evidence that J would call to check that he was okay, asked if he could do anything and offered to be there to support the accused if he needed to chat. The friendship grew from there until the end of 2016 when J withdrew his offer for C to be H's godmother. J then cut communication.[177]
The accused also spoke about the babysitting of H. His wife P made an offer to look after H and he was happy to go along with it. While the offer was for the accused and P to look after H, C became quite involved. At the time she was about 17 years old. The accused said he was involved in helping out. The arrangement for the babysitting was made in the middle of 2016 and went for about six months. However, the accused went on to say that there was one occasion when he was involved in the babysitting of H in May or June 2017.[178]
In cross-examination the accused admitted that J was a good-looking boy, in the accused's words 'a handsome lad', but denied being physically attracted to him.[179]
The accused agreed that he spoke to J about sexual matters when he was aged 13 to 14. The accused agreed that he had told J that if he was going to have sex with a girl he should wait until he was 18, but denied ever suggesting that he should experiment with boys. The accused also agreed that he later found out that J had had sex with a girl, but denied that he was either angry or particularly disappointed by that news.[180] The accused was then asked why he was speaking with J about sexual matters. His response was that J's mother had called P and was telling P that J was having sex with girls and that they were staying overnight. J's mother wanted this to stop and asked the accused to speak to J about this.[181]
The accused again denied all of the allegations relating to counts 4 to 7 inclusive when these were put to him in cross-examination.

[89]

C described how all of the offending against her by the accused occurred in the family home where she lived between the ages of 4 and 7. C was halfway through Year 2 at school when the family moved to another house, and the offending against her stopped.[182]
I set out the evidence which C gave in the order of each count in the indictment. This was not the order in which she gave evidence, however.
C gave evidence that there were two bathrooms in the family home. There was an ensuite bathroom connected to her parents' bedroom. There was a toilet which had two doors - one to the ensuite bathroom and another through to the passageway of the house. There was another bathroom with a separate toilet at the back of the house. She remembered that she and her siblings bathed in the ensuite bathroom and she had no memory of the back bathroom being used. She described the facilities in the ensuite as a spa bath and a shower, and in between the bath and shower was a bench with two sinks in it.
In relation to count 8, C gave evidence that she had a clear memory of being in the ensuite shower. She was 6 years old. She was inside the shower and the accused was standing outside the shower. The shower had a detachable showerhead which could be removed from its fitting and be hand held. C described how the accused moved the showerhead down her back and asked if it felt nice. He then moved the showerhead onto her vagina and held it there. The part of the showerhead on her vagina was the part which sprayed out water (the shower rose). The accused then put his pointer finger (which she indicated to be his index finger) in her mouth and then put his finger inside her vagina and moved it in and out. The detachable showerhead remained on her vagina.[183] For ease of reference, I will refer to this as the 'shower head incident'.
Counts 9, 10 and 11 are all said to have occurred on the same day, although counts 10 and 11 occurred some hours after count 9. C gave evidence that count 9 was another time in the shower of the ensuite where she was inside the shower and the accused stood on the outside of the shower, with the door open. The accused had a bottle of conditioner and first rubbed some onto his hands, then rubbed it on her body and then on her vagina. He then put his finger in her mouth and then into her vagina. Unlike count 8, C did not remember him moving his finger in and out. However, she could remember that his finger going into her vagina stung and it hurt a lot also because she explained it, 'it felt like it went all the way in and was held there for quite some time'. Ultimately he removed his finger from her vagina and afterwards her vagina was stinging a lot.[184] For ease of reference, I will refer to count 9 as the 'conditioner incident'.
Counts 10 and 11 followed count 9, on the same day and for ease of reference I will refer to these two counts together as the 'lip gloss' incident. C gave evidence that later after her shower, when she was in bed, her vagina was stinging. She got out of bed and told her mother and father, the accused, who were both in the kitchen/living area, that her vagina was stinging. They told her to go back to bed and they would bring something in, so she went back to bed. The accused came back with some Savlon cream. When he came into her bedroom she had a stick of lip gloss. She did not know why she was doing it, but she was moving this in and out of her vagina. The accused did not say anything, but just left. He came back and she was not doing this anymore. He asked her to show him what she was doing before and said he wanted to show her how to do it. He used his fingers and moved his finger, his pointer finger, in and out of her vagina.[185] This is the conduct the subject of count 10.
C explained that while this was going on, they were both on the bed. Looking at the bed, the accused was on the left-hand side and she was on the right-hand side. After a while the accused asked C to show him again what she had done with the stick of lip gloss. She used the lip gloss like he asked and moved it in and out of her vagina. This is the conduct which is the subject of count 11. He then told her to feel his penis. He was wearing boxers. She felt his penis, it was hard and the accused told her it was good that it was hard.[186]
As to her age at the time of count 9, 10 and 11, C gave evidence that she remembered it was summertime, but it was hard to remember how old she was. She did remember that it was the end of Year 1,[187] which would make her 7 years old.[188]
Count 12 is said to have occurred in the toilet at the back of the house when C said she was 5 years old. She gave evidence that both she and the accused were in the back toilet - she went into the toilet first and the accused followed her. She gave evidence that he wanted to show her how to go to the toilet like a boy. He called it the 'boy dance'. He showed her how to stand up and lean over. He stood next to her on her right and he went to the toilet and said 'like this'. Then she tried to do it but not much of it went into the toilet bowl. The accused cupped his hands underneath her vagina and he was splashing her urine back up onto her vagina. Initially she could not remember what happened next, but after giving evidence that she had seen his penis when he urinated and she was asked 'where did his penis go after that?', C then recounted how the accused pulled his boxer shorts up but then once the splashing stopped, he had his penis out. He had it in his hand, moving his hand up and down and also he had his penis in her mouth. He pushed her head onto his penis. He had one hand on her head and one hand still on his penis. He was not really moving, more so he was moving her head. She felt what she thought was urine in her mouth. She did not want to swallow it but she did.[189] For ease of reference, I will refer to this as the 'boy dance' incident.
Count 13 as described by C was another incident in the back toilet, when she was 5 years old, when the accused put his penis in her mouth. This time the accused was angry. C recounted how she had to bend over a little bit and saw that her brother's stool, that he used when using the toilet, was still in the toilet. The accused was pulling her head and hair hard, holding her mouth onto his penis. His penis was inside her mouth; he had his other hand on his penis. She could not breathe. She felt like she was going to be sick, but she was not sick. When he took his penis out of her mouth, he did not let go of her hair but kept his hands on her head, holding it really tight, over the toilet bowl, and he then flushed the toilet close to her face. She could not remember how this incident ended, however, she gave evidence that she felt what she thought was urine in her mouth.[190] For ease of reference, I will refer to count 13 as the 'toilet stool' incident.
I will refer to the next charge, count 14, as the 'guinea pig' incident. There was some background evidence to this incident given by C. She gave evidence of what was in the back yard, including that the accused had hermit crabs. She could remember a few occasions when the accused had drowned hermit crabs in a bucket of water.[191] Later in cross-examination, however, C said that both she and the accused drowned the hermit crabs. She said she was 4 or 5 years old when this happened. She could remember that she and her brother pushed the hermit crabs down a plastic slide in their backyard, and when asked whether her mother caught her doing that, she responded 'I think so'. To the proposition that her mother and father released the hermit crabs into the backyard, C said that was not true.[192]
Count 14, the guinea pig incident, occurred in the back yard of the house when C was under the age of 6 years old. The accused took C outside to show her some guinea pigs in a box. C said there were four or five guinea pigs in the box. She then gave evidence that the accused showed her how to use her fingers to get the penises of the guinea pigs out, by pushing and moving his fingers up and down. She remembered that she wore a denim skirt, and this skirt and her underwear were down around her ankles, but she could not remember if the accused took them down or he asked her to take them down. While her skirt and underwear were around her ankles, the accused pressed the guinea pigs, one at a time, up against her vagina. Each time the accused held a guinea pig up against her vagina she could feel the guinea pig in between the two outer lips of her vagina and on the outside skin, and she felt pressure towards the inside of her vagina but 'nothing going in'. The guinea pig was wriggling and warm. The accused then got C to drown the guinea pigs, one at a time, in a bucket of water.[193]
Counts 15 and 16 involved another occasion in her bedroom when she was in her bed, meant to be asleep. I will refer to this as 'the bedroom incident'. C gave evidence that she was 7 years old at the time. She was upset about something and distracted, and she thought she was peeling nail polish off her nails. The accused came in and C pretended to be asleep, on her back. The accused got into bed with her, under the covers, then started rubbing his hand on the outside of her vagina in a circular motion. He pulled her underwear down and rubbed her vagina again, in circles and then he put his finger in and out of her vagina. He then moved on top of her, with his body on top of hers she felt like she was being pinned down. She looked up at him and he was looking right at her. The accused then tried to put his penis into her vagina.[194] When describing what she meant when she said 'he tried to put his penis in' she explained as follows:[195]

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C gave evidence that the accused's penis went into her vagina but it did not move in and out. The accused had not penetrated her vagina with his penis before this incident.[196] In other words, this was the first time the accused penetrated her vagina with his penis.
Count 17 was another incident in the ensuite bathroom. Here C gave evidence that she was younger than previous occasions that she could recall, and this is one of the earliest incidents - she estimated she was 4 years old. C gave evidence that the accused was in the shower with her, both of them were naked. The accused put his finger in her mouth. His penis was hard. He held her head and put his penis in her mouth. He moved her head. While this was happening the shower was still on.[197] I will refer to this as the 'running shower' incident.
Count 18 was another occasion in the ensuite bathroom about which C gave evidence, which she said happened when she was in pre-primary. She remembered having an old towel around her, which was stained. She recalled that heat lamps had just been installed in the bathroom. The accused was standing in the bathroom with her and told her that the heat lamps would help her dry, so she stood under the heat lamps. The accused had an electric toothbrush, which he placed on the outside of her vagina. He used the end of the toothbrush which had bristles, but flipped it over to place the plastic non bristle side against what she now knows is her clitoris. She felt the bristles from the toothbrush touching the surrounding areas. She felt what she thought of at the time were shivers and tingles.[198] For obvious reasons, this has been referred to as the toothbrush incident.
C gave evidence that what happened in each of the incidents the subject of these charges happened 'lots of times'. These were the only times she could remember very clearly. C gave evidence that things like this happened 'often, from as early as I can remember'. When asked to clarify what she meant by 'often' she answered 'There are only a few days that I remember clearly that did not have anything at all happen. Twice a week, at least'. The offending stopped after the family had moved house when she was halfway through Year 2 at school.[199] (Consistent with other evidence, I calculate that C was around 8 years old halfway through Year 2.)
C did not tell anyone about what was happening at the time. The first time she spoke about it was to some friends in Year 9, in 2013. She did not speak to police about these matters until 2017. In cross-examination she agreed that she first went to the police about these matters on 13 August 2017.[200]
In cross-examination C agreed that what she had told her friends in Year 9 was that her father had physically abused her, not that he had sexually abused her. She also agreed that the first time she spoke to anyone about her father sexually abusing her was in 2016 when she was an inpatient at a private psychiatric facility.[201]
C agreed during cross-examination that she had significant mental health issues and had been treated for these issues for many years. She agreed she suffered from depression and a long-term eating disorder, and she had also self-harmed.[202]
It was suggested to C, and she agreed, that sometime in 2016 she started to have flashbacks that she had been sexually abused. She disagreed that before this she did not have any memory of the abuse which occurred to her between the ages of 3 to 7. She explained that what she meant by 'flashbacks' was memories of sexual abuse and she said that she had had these memories for as long she could remember.[203] Later in cross-examination C explained flashbacks from her perspective meant 'feeling like I was reliving it'.[204]
C agreed that she had told psychologists and psychiatrists that she was not sure whether or not her flashbacks were real and she agreed that when she told them this, she had lied.[205] She also agreed that she had lied to them about the person who had sexually abused her, and did not tell them it was her father, despite having 'enormous opportunity' to disclose this.[206] The following exchange took place with counsel for the accused:[207]

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Later it was specifically put to C that if she was sexually assaulted between the ages of 3 to 4 to about 7, it was by the big boy that she talked about who was at her kindergarten or in the neighbourhood, C responded 'That is not true'.[208]
C agreed she had spoken to J and her aunty about the person who sexually abused her being her father. She said that she had talked about it and they supported her. When it was put to C that J and her aunty had suggested it was her father, she disagreed, saying she thought she had spoken to them about it first. She agreed that she had told her mother that it was not her father, and that this was a lie.[209] Later when it was put to C that J and her aunty suggested that it was her father, C said 'No, but we did discuss it'. C then gave evidence that she later changed her position from saying that it was her father, to saying that it was not him.[210]
She agreed that J had told her about her father conducting skinfold tests and undressing J and doing sexual things to him, but when it was suggested that this was when she started to believe that her father had sexually abused her, she answered 'I had believed it for a long time before that'.[211]
C agreed that she had been sexually assaulted on a beach by an unknown male when she was in Year 12 at school (a one off occasion) and also that in March 2017 she was sexually assaulted by someone at a party (also a one off occasion).[212] She denied that her memories of abuse by her father had been confused with these other sexual assaults.[213]
In relation to the showerhead incident, count 8, C was cross-examined about her statement to police, where she had given her age as 7, while the age she gave in her evidence was 6. She was asked why she told the police that she was 7 years old, and responded 'I clearly remember what happened. I don't clearly remember that I was 7 years old though'.[214]
She was also cross-examined about the configuration of the ensuite bathroom. She gave evidence that there was a sliding door that went from her parents' bedroom into the bathroom. Then when it was put to her that there was no door between the master bedroom and the ensuite, she said she did not remember.[215]
Relevant to counts 9 to 11, in cross-examination C was asked about and gave evidence that she had suffered a serious urinary tract and kidney infection as a young child, and she had nearly died. She could not, however, remember her parents talking to her about the importance of doing things to make sure she did not get (another) urinary tract infection.[216]
C confirmed that the events the subject of counts 9 to 11, the conditioner incident and the lip gloss incident, occurred at the end of Year 1, and that she was 7 years old at the end of Year 1. She agreed she had previously said that she was 4 or 5 years of age. She could not explain why she had previously said she was 4 or 5. She denied that she had lied about her age, and agreed that this was her memory at the time.[217] C was cross-examined at length about other details of these counts, but did not deviate from her evidence-in-chief.[218]
As to her age at the time of the boy dance incident, count 12, C agreed that on an earlier occasion (which was not identified) she had said she was 7 years old at the time of the incident. She gave evidence, however, that she remembered she was 4 or 5. C was cross-examined at length about the details of count 12 but did not depart from her evidence-in-chief.[219]
C was asked about whether her father was circumcised or uncircumcised but answered that she did not know the difference between a penis that is circumcised and one that is uncircumcised. She was 21 years old at the time of giving her evidence. It was suggested to C that she had lied about this, and the reason why it was a lie was because she could not explain whether or not her father's penis was circumcised or uncircumcised because she had never seen it. C denied this, saying that it was because she did not know what it would look like.[220]
In relation to count 13, the toilet stool incident, C was asked in cross-examination whether this happened before or after count 12. She said she could not remember for sure, but believed it was after. She denied that she did not remember this occurring to her for many years, and said that she remembered this occurring 'for a long time' and that she had a constant memory of this.[221]
In relation to C's evidence about the guinea pig incident, count 14, in cross-examination C agreed that when she was about 18 she and her friends purchased some guinea pigs and these were kept for about six months in the backyard of the house where she and her family then lived. When it was suggested that if the guinea pig incident, count 14, had happened as she described, there was no way she would ever want to have anything to do with a guinea pig, C gave evidence that she did not want to, but it was her friends' idea.[222]
In cross-examination C gave evidence that it was her 'position' that her father never showed her brother or her mother the guinea pigs he had purchased, and she agreed she was suggesting that her father had bought the guinea pigs in the box in secret. She agreed that the accused showed her how to use her fingers to get the guinea pigs' penises out, and that she knew how to make a guinea pig's penis come out to determine whether it is a male. She was asked what a guinea pig's penis looked like and she gave a description of 'small, red and it comes out of the skin'. When it was suggested that the penis of a guinea pig has two prongs on it, she responded 'I don't remember that'.[223]
C reiterated her evidence that after the accused put the guinea pigs near her vagina, he forced C to drown the guinea pigs. She said that this was very traumatic. She said she did not react when the guinea pigs were put up near her vagina. She could not remember what part of the guinea pig was put up near her vagina. She did not see the guinea pig near her vagina, but she felt it. She then said that she could see the body of the guinea pig, the back end, near her vagina, but she did not see it very clearly because she did not want to look. When asked how many guinea pigs this was done with, she answered three or four. It was suggested she had never told the police that there was more than one guinea pig. She agreed that in her statement to police she talked only about one guinea pig being held up to her vagina, but she described multiple guinea pigs being brought home and multiple guinea pigs being drowned.[224]
As to the bedroom incident, counts 15 and 16, C was cross-examined about whether she was allowed to have nail polish when she was 6, and she responded 'well I had it on'.[225] She was cross-examined about earlier out of court statements she had made:

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It was suggested to C that her bed was not a standard single bed, but a smaller cot-sized bed, she responded that she remembered it being the size of a single bed.[228] When it was suggested that the bed could not have fitted her father because he was much too big, C responded 'He wasn't stretched all the way out'. When it was suggested that the bed would not have supported his weight, C answered 'Well, it did.' Finally, it was suggested that what she described physically could not have happened because of the size of the bed. C answered 'That's not true'.[229]
C was cross-examined about her age at the time of the running shower incident, count 17. She said she was 6 when this occurred and in the order of events, that was one of the later ones. This was, of course, different from her evidence-in-chief where she gave her age as 4 and said this was one of the earliest incidents.[230] C maintained her evidence about this incident when cross-examined about the details, saying that 'ages were hard to remember', but this incident was distinctive because the accused was in the shower with her.[231]
Relevant to the toothbrush incident, the subject of count 18, C was cross-examined about whether she knew when the heat lamp had been installed. (It was referred to in the singular by counsel, and also referred to as a heat light; I will refer throughout the rest of these reasons to the 'heat lamp'.) C gave evidence that the heat lamp was there at the time of this incident. She could not remember the heat lamp being used at the time of the other incidents in the ensuite bathroom. She could not say exactly when it was installed, only that she remembered it being there, and remembered it being used.[232]
C was also cross-examined about what she had said about this incident in her earlier police statement. She agreed she had said that the toothbrush incident, count 18, was on the same day as count 17, and happened after the accused took his penis out of her mouth, and she got out of the shower. C gave evidence that she now said it was a different incident to count 17 and she now remembered it happened after she had come out of the bath (not the shower).[233]
C was taken to some of the texts she had with her cousin, J, where she admitted that she had lied to J about what she had told him in those texts. This included where she told J that:

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P gave evidence about the layout of the house where the accused and his family lived at the time of these alleged incidents, and the plan of the house was produced.[246] P's evidence was that the family moved to another house before the birth of her third child in 2005, but later said that C was about 8 years old when the family moved, which would make the move in 2006.[247]
P gave evidence about the layout of the ensuite bathroom and the existence of a spa bath in one corner and the shower cubicle in the other. There was a wide entranceway between the master bedroom and the ensuite bathroom, and it did not have any doors. It was possible to see into the bathroom from the bed in the master bedroom.
She gave evidence that the showerhead in the shower of that ensuite bathroom was detachable.[248] In cross-examination, however, she agreed that detachable showerhead was not in the ensuite bathroom when she and the accused first purchased the house; it only became detachable at some later point. P gave evidence that she was pretty sure the showerhead got swapped to make it easier to wash the kids' hair. She disagreed that it was changed shortly before the house was sold, observing that she could recall washing C's hair with the detachable showerhead.[249]
P also gave evidence that the heat lamp in the ensuite bathroom was put in after they had moved into the house, when the kids were little, probably 2004, maybe 2003.[250]
Her evidence was that the children bathed in the ensuite bathroom because it was easier to keep an eye on them. She and the accused shared responsibilities when it came to bathing the children.[251]
P gave evidence about where C slept, referring to a plan of the house.[252] She identified that the bedroom where C spent the majority of the time was bedroom 3 (the middle bedroom) and she could recall doing up both C's and her son's bedroom, and the décor she chose.[253]
In cross-examination P was asked about the bed in which C slept. P gave evidence that it was a toddler bed, which the accused had made. P described this as having a mattress the size of a cot mattress. P stated that C was only in that bed for a little while. C became too big for a toddler bed at probably about the age of 3, when she moved to a single bed. P gave evidence she could recall purchasing the single bed and doing up C's room.[254]
P gave evidence about the pets which the family had at the time of counts 8 to 18. There was a dog, some hermit crabs, bobtails and she thought that they had quails. The school had guinea pigs on a roster and those would come to the house for a weekend or night. She could also recall having chickens.[255]
In cross-examination P spoke about the hermit crabs. She remembered catching C and her brother pushing the hermit crabs down the slide in the back yard. P thought that after this, the hermit crabs had escaped. She could not remember, as was suggested to her, that she and the accused agreed to release the crabs back into the wild.[256]
There were further questions in cross-examination of P about the guinea pigs. She agreed that these were not family pets but were in the classroom - P thought it was C's kindy or pre-primary school class. The guinea pigs were provided by the school on a roster for the families to take care of the animals, and then send them back. P agreed that was the only time in which the family had guinea pigs at that house, and that they would have been returned to the school. At a later stage, when C was about 18, P could recall that guinea pigs were brought to the house when C and her friends purchased those guinea pigs.[257]

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The accused gave evidence about the ensuite bathroom in the house at the time of these alleged offences and agreed with the evidence given by P that there was no door between the master bedroom and the ensuite bathroom, and there was a very large opening.
The accused gave evidence that the family moved out of this house, he believed, in late 2006.[258] Later in cross-examination he said that they moved in 2006.[259] Again later, when I asked how old C was when the family moved to Churchlands, the accused said that C would have been 7 years old.[260] (C turned 7 in mid 2005, and 8 in mid 2006.)
His evidence was that just before selling this house and moving, he installed, or arranged to install, both the heat lamp and the detachable showerhead in the ensuite bathroom. He estimated it was only a matter of months before the house sold, and family moved at the end of 2006.[261]
The accused denied ever having touched C in a sexual way, or masturbating in front of her, or procuring her or asking her to do anything sexual in front of him. He denied ever having put any part of his genitalia into her body, or any other part of his body into any part of C's body.[262]
In relation to count 8, the showerhead incident, the accused gave evidence that he had never showered with C, or been in the shower cubicle with her when she was showering. When they were younger C would generally be bathed together with her brother in the corner bath in the ensuite bathroom. When C was older, about the year she was turning 5, C and her brother would either be bathed separately or one would have a shower and one would have a bath. Again, this mostly happened in the ensuite bathroom, but on occasion in the spare bathroom. The accused also stated that both he and his wife P were involved in the bathing of the children - 'we shared that role when they were younger especially'. [263]
The accused denied ever taking the detachable showerhead and moving it down C's back onto her vagina. To the allegation that he then put his finger in her mouth and then put it inside her vagina and moved it in and out the accused responded 'No that didn't happen. Never'.
The accused also denied the same behaviour, digital penetration, which is alleged in count 9.[264]
The accused also denied the lip gloss incident, counts 10 and 11. Relevant to the allegations here, the accused gave evidence that when C was around one year of age she was diagnosed with bilateral pyelonephritis. She was very sick, in hospital for two weeks and as the accused described it, she nearly died. There were many paediatric and specialist follow-ups tests and procedures for the next 12 to 18 months until her kidneys returned to normal. Tests showed that the anomaly in her bladder had resolved itself and there was no surgery required and no follow-up required. The following exchange then occurred:[265]

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In relation to C's evidence that she asked for some cream and said that her vagina was stinging, the accused said he could not remember an event like that. If she had said that her vagina was stinging he would have been worried about another urinary tract infection. He denied going into C's bedroom with cream, or walking in on her doing anything with a lip gloss. He denied that he asked C to show him what she was doing or asking her to do it again. He also denied any digital penetration.[266]
To the evidence given by C that he had got onto her bed and was lying on the left-hand side, the accused gave evidence that from when C was about 12 months old or so until the age of 7, when the family moved house, C had slept in a large cot bed, or toddler bed, which was three quarters the size of a single bed. He described how he made a timber frame which was to fit a three quarter size mattress, which was the same sized mattress that was in the cot or thereabouts. He gave evidence he was 6 foot tall.[267]
Relevant to the 'boy dance' incident, count 12, the accused denied that he had ever showed or tried to show C how to go to the toilet like a boy, or called this the 'boy dance'. He denied that C had ever gone to the toilet like a boy in his presence, at least not that he was aware of. He gave evidence that he might have gone into the toilet when she was very young, learning to use the toilet and being toilet trained, but certainly not when she was toileting herself.[268]
The evidence the accused had given about C's kidney and urinary tract problems were referred to again here in relation to this count. The accused explained why he would never have his hands underneath her while she was urinating and splash the urine back up. There is a reason why he would not have done that - he would have been extremely worried about causing or creating a situation where C might end up with another urinary tract infection. The accused denied the specific allegation in count 12, that of putting his penis into C's mouth.[269]
The accused was then taken to the evidence which C had given about count 13, the toilet stool incident, which was said to be something that happened in the back toilet and that the stool that her brother used to go to the toilet was in that back toilet. The accused agreed that his son did have a stool, or more correctly a step, that he used when being toilet trained from probably about the age of two. The accused denied, however, that the stool was kept in the back toilet. The accused denied the specific conduct the subject of count 13.[270]
Relevant to count 14, the accused gave evidence about the hermit crabs and the guinea pigs. He described how hermit crabs were the first pets the family had. He and his wife had seen C and her brother playing with them in the sandpit and pushing them down the slide, so it was decided that the hermit crabs should be rehomed by releasing them into the garden. The accused denied drowning the hermit crabs in a bucket of water.[271]
The accused gave evidence that he had never bought guinea pigs, had never taught C how to sex a guinea pig and did not, in fact know how to sex a guinea pig. He denied ever pressing a guinea pig or guinea pigs up against her vagina, or taking a guinea pig between the outer lips of her vagina, or trying to force the guinea pig up against her vagina.[272]
He was asked to comment on the evidence of P that guinea pigs were brought home from school. The accused said he did not recall whether that happened but he would not deny that it happened. He also confirmed that when C was about 18 years old, she and her friends had purchased some guinea pigs which were kept at the family home.[273]
The accused denied the allegations the subject of counts 15 and 16, the bedroom incident. He gave evidence that C was not allowed to have nail polish when she was a young child, and he could actually recall when she was first allowed to have nail polish, which was after they had moved into the new house and she would have been about 8 years old. He denied getting into bed with her and gave evidence that he believed he would not have been able to fit onto the bed (which was the toddler bed).[274]
The accused also denied having committed count 17, the running shower incident, saying he had never been naked with C in the shower, put his finger in her mouth in a sexual way, or put his penis into her mouth.[275]
As to count 18, the toothbrush incident, in addition to denying the specific acts alleged by C, the accused gave evidence that he was not aware of having an electric toothbrush at that time.[276] In cross-examination he reiterated this, and also stated that he did not believe P had an electric toothbrush.[277] He also reiterated his earlier evidence about when the heat lamp had been installed in the ensuite bathroom, suggesting that in terms of the timing of this count the heat lamp had not been installed.[278]
As to the arrangements about bathing the children, in cross-examination the accused did not accept that he alone would look after them when they bathed or showered, and did not accept that there were times when P was not at home at bath time. He said he did not recall ever in that period bathing or showing them with P not around. He stated that generally he and P helped one another, in other words they were both involved in bathing the children. When C was old enough to shower, which was probably the year that she turned 5, his only duty would have been to check that she had rinsed her hair properly, and washed conditioner out of her hair. She was old enough to dry herself and do everything else.[279]
In relation to P's evidence about the purchase of a new single bed for C and doing up her room, in cross-examination the accused gave evidence that new furniture was purchased for C after the move to the new house. He maintained that C slept in the three quarter sized bed until that move.[280]
During cross-examination about each of counts 8 to 18 the accused maintained his denials of each of the charges.

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For each of these charges the complainant is the only witness against the accused as to the happening of the events alleged. Whilst there has been other evidence as to occasion and opportunity, no-one has confirmed or corroborated the complainant's evidence as to the offences themselves.
G was giving evidence of events said to have occurred about 37 - 38 years ago in the case of count 1 and 2, when he was 10 or 11 years old, and 33 years ago in the case of count 3, when he was 15 years old.
J was giving evidence of events said to have occurred over a two year time period between almost 19 and 21 years ago when he was aged 13 or 14.
C gave an account of events which are alleged to have occurred at least 14 years ago, but possibly up to 19 years ago, when she was very young at the time, between the ages of 3 and 7.
In relation to all complainants, the indictment alleges a long time period relevant to each charge. There is no precision as to date or time.
The accused did not learn of the allegations made against him by any of these complainants until 4 September 2017.
Human memory is fallible and honest witnesses can be wrong in their recollection. The longer the delay the more opportunity there is for error, and particularly that is so for events occurring in childhood. It is a matter of common experience that the longer you believe something to have happened, the more convinced you are that it has happened. This can be so even if you are mistaken in your recollection.
I must also bear in mind all of the matters that might have an impact on the reliability of each complainant. These matters include not only their age at the time, but their particular circumstances, such as G's troubles at school, J's troubles at home and school, and C's mental health.
Finally, I must take into account any inconsistencies in the evidence given by each complainant compared with earlier statements, and the extent to which any inconsistency impacts on my assessment of the complainant's credibility, accuracy and reliability in respect of the allegations.
In this situation, for each of these complainants, I must be satisfied beyond reasonable doubt about the truthfulness, accuracy and reliability of the complainant's evidence before I could convict the accused of any of the charges. Because of the crucial nature in this case of the complainant's evidence in each case, and because of the seriousness of the allegations they each make, I should scrutinise each complainant's evidence with special care.
There is another aspect of the delay. With the years that have gone by the accused has been forensically disadvantaged in the conduct of his defence and he has been disadvantaged in two ways.
First, the accused has lost the means of adequately testing and meeting the allegations of each complainant that he would otherwise have had if the allegations had been made the subject of a prosecution at an earlier time. A common way of testing a complainant's evidence is to question the complainant about surrounding circumstances and details which existed at the time of the alleged offending conduct and which, while not necessarily of significance in themselves, may help to indicate whether a complainant is or is not an honest and reliable witness. Given the amount of time that has elapsed since the incidents the subject of these charges, and the effect which such a lapse of time has on the memory of everyone involved, this has affected the accused's ability to identify surrounding circumstances or details which might have provided a basis for the testing of the complainant's evidence.
Secondly, the accused has lost the opportunity to bring forward matters of defence. His ability to both investigate the allegations and the circumstances in which the offences are alleged to have been committed, and to call evidence to rebut the complainant's evidence, has been lost or substantially impaired because of the passage of time.
Counsel for the accused submitted there were a number of identifiable forensic disadvantages suffered by the accused:

[139]

In this case we have three different complainants who are young children, all of whom had a family connection with the accused and all of whom were in a close relationship with the accused. There was a degree of trust and care reposed in him for each of these complainants, and the accused was a figure of authority - a 'big brother' in the case of G and subsequently a teacher, a 'father figure' in the case of J, and of course the accused is the biological father of C.[294]
In my view this is a situation like WCM where the charges are all cross-admissible. Applying the tests in s 31A of the Evidence Act, I am satisfied that the charges in the indictment all have significant probative value in relation to each other, and that the probative value of the evidence of each charge or count compared to the degree of risk of an unfair trial for the accused is such that fair-minded people would think that the public interest in adducing all relevant evidence should take priority over the risk of an unfair trial. Accordingly, I am satisfied that the evidence from any charge in this indictment where I find the accused guilty, can be used as propensity evidence when I am looking at the other charges in the indictment.
The risk of an unfair trial can be alleviated by the following directions I now give myself in relation to cross-admissibility and the use that I may and may not make of the evidence of one charge when I am considering the evidence relating to the other charges.[295]
If I find the accused not guilty of a charge, I cannot use the evidence about that charge when I consider any other charge. If I find him not guilty, I will proceed on the basis that he remains innocent of that charge, so evidence on that matter cannot be used when I am considering any other charge.
On the other hand, if I am satisfied beyond reasonable doubt that the accused is guilty of one or more of the charges, I am permitted to consider the evidence of any charge on which I have found him guilty, along with all the other evidence, to decide whether the State has proved another charge beyond reasonable doubt. It would be open to me to conclude that the occurrence of an incident the subject of one or more of the charges increases the likelihood that the accused had committed the specific act the subject of another charge.
However, I cannot use the evidence about any charge where I am satisfied beyond reasonable doubt of the accused's guilt in substitution for evidence of the events relating to any other charge. In other words, proof to my satisfaction of guilt upon one charge must not lead me automatically to a guilty verdict on any other charge. Proof that the accused did something on one occasion to one complainant does not compel the conclusion that he did something again to either the same complainant or either of the other two complainants. People do not always act in accordance with all their inclinations at every opportunity.
For each charge I must be satisfied beyond reasonable doubt that the accused committed the specific act alleged against him in that charge.

[147]

To the extent that there is any conflict between the evidence of the accused and P, I prefer the evidence of P, whom I found to be a truthful and reliable witness.
Thirdly, there were also a number of internal inconsistencies within the evidence the accused gave during trial. The following are examples.
As I have set out in [149], after stating in examination-in-chief that he did not tolerate G drinking at all, in cross-examination he later described how towards the end of 1987 he supplied alcohol to G.
Another example, as I have set out in [145], is that when denying that he had acted upon his sexual interest in young boys, he said 'I have always enjoyed a good, solid sexual relationships with my girlfriends and my wife'. Immediately afterwards, when it was put to him that he had offended against A and L while he was married to his wife, he then said that he had been depressed and medication he was taking had interfered with his sex life with his wife. This response, in my view, is both contrary to the evidence he had just given and inherently incredible - somehow his depression and the medication he was taking interfered with his sexual interest in his wife, but it did not interfere with his sexual interest in A and L.
There are many other examples where the accused gave an inherently incredible account. The following are examples.
During the course of the accused's evidence there was much emphasis on the size of C's bed to demonstrate, as I understand the accused's evidence, why it would be impossible for him to commit counts 10, 11, 15 and 16. He suggested he was too tall and would not have fit on the bed because C was not sleeping in a single bed until after the family moved house, when C was 6 or 7 years old. The evidence from the accused about C not sleeping in a single bed is, as I have found, inherently incredible. It does not accord with common sense or experience. It is also inconsistent with P's evidence about this. P was a believable and credible witness and I accept her evidence about this.
The accused's evidence that he and his wife P always bathed the children together, and his refusal to accept that there was ever an occasion when he bathed them without her, as I have set out in [307], defies logic and common sense. It is also inconsistent with P's evidence at [282] that she and the accused shared the responsibility of bathing the children.
The accused's account of the reasons he took the skinfold test of J is another example of evidence from him which was inherently incredible. The accused justified taking J's skinfolds on the basis that he was talking to J about diet and weight and wanted to establish his BMI. When questioned why skinfolds could assist in calculating BMI, the accused gave the answer which I have set out in [220]. Later cross-examination established that he did not use callipers to measure J's skinfolds and did not actually measure them. He did not weigh J or know his weight. He could have spoken to J about diet and exercise without taking any skinfolds. The accused's account of why and how he took the skinfold test strains credibility and is, in my view inherently implausible.
Likewise the evidence which the accused gave of J masturbating in his grandparents' home (summarised in [216] - [217]) is incredible and I do not believe it. In cross-examination there were questions asked about how J had got into the lounge room. The accused gave evidence that hidden with the key to the front door was also a back door key, and J used that to go in through the back way and J was in the lounge room 'the back room'. As counsel for the State submitted, it beggars belief that while the accused was apparently, according to his evidence, prepared to talk to J about pornography and other sexual matters, he did not say anything to J about this sexual matter, or say anything to anyone else, not even his wife P.
It was submitted by counsel for the accused that the fact the accused was prepared to give evidence about the skinfolds and J masturbating in his grandparents' home bears favourably on his credit, because he made a concession he did not need to make.[299] I am unable to accept this submission. I formed the distinct impression, both from the accused's accounts and his demeanour in the telling of them, that the accused was attempting to portray himself in the best possible light and, in the case of the allegation that J masturbated in the grandparents' house, attempting to portray J in the worst possible light and deflect from J's evidence.
Another reason why I had difficulties with the accused's evidence is the fact that during cross-examination the accused often avoided answering questions put to him by counsel for the State. For example, when he was asked about the alcohol he provided to G:[300]

[156]

G appeared to be giving his evidence honestly and he was willing to make concessions against his own interest. For example he readily accepted his troubles at school, and that it was his idea to go and live with the accused in the country town in 1987. He also candidly admitted his past drug use and his criminal record.
I can well understand and I accept that G remembers the occasion the subject of counts 1 and 2 for a number of reasons. First it was around his birthday, secondly it was the first time he had drunk alcohol, and thirdly he can recall what he had done on the day, namely visiting a surf club with the accused.
The accused confirmed the opportunity for counts 1 and 2 when he admitted in cross-examination that there was an occasion he had gone to the surf club, just him and G. While the accused's evidence was that this was in 1984, and not 1982 as set out in the indictment, the State does not have to prove precisely when this offence was committed, or the precise age of the complainant at the time.
I also accept G's evidence that before counts 1 and 2 the accused had cuddled and kissed him. While this is not something which he raised until just before the trial, I accept the explanations which G gave, as I have set out in [113]. I had a number of problems with the accused's denials of the kissing and cuddling. For the reasons I have already discussed when discussing the accused's credibility, I do not believe his denials.
The accused's own admission of having a sexual interest in young boys at the time and the evidence of the prior convictions, which establishes not only that he had that sexual interest but also was prepared to act upon it, establishes that the accused is the type of person who is likely to have committed the acts in counts 1 and 2. This is particularly the case given the facts of the accused's prior convictions concerning A. For this reason and the other reasons I have already discussed when discussing the accused's credibility, I do not believe his claim that he had no sexual interest in G. I do not believe the accused's evidence that despite having a sexual interest in young boys, he did not act on that until 2016 and 2017. I do not believe the accused's denials in relation to counts 1 and 2.
I must still scrutinise G's evidence with special care, and there are a number of factors I must consider.
The first is the fact that G made no immediate complaint about counts 1 and 2. This does not indicate his evidence is false or that he is not telling the truth about what happened. I found G's explanations as to why he made no complaint at the time of counts 1 and 2, that he was confused, scared, and trying to rationalise it, both believable and credible, particularly having regard to his young age at the time.
However, G had the opportunity to make a complaint about both counts 1 and 2 when he spoke to police about the 1989 charge, but he did not. He also had the opportunity to say something about the accused's conduct the subject of counts 1 and 2 during the trial of the 1989 charge. I find that he did say something about count 1 at that trial, but did not say anything about count 2.
During the trial of the 1989 charge, G gave evidence that the accused had touched him before, and that is consistent with count 1. I accept G's evidence in this trial and find that here he was talking about the act the subject of count 1. I do not consider that the difference in the ages he gave - 10 or 11 in this trial as opposed to 12 in the 1989 trial - causes problems with his credibility or reliability.
Notwithstanding the opportunity for error in recalling, over 30 years later, some of the details of count 1, G has been consistent in his account of the act the subject of this charge, and I find that G's evidence is credible and reliable.
I have scrutinised G's evidence with great care. Having done so, and even after taking into account the forensic disadvantages for the accused because of the delay and paying heed to the Longman warning, I am satisfied as to the truth, accuracy and reliability of G's evidence about count 1.
In relation to count 2, I found G's evidence about the accused engaging in fellatio was believable. His evidence included the sort of details a child of this age might remember in relation to an incident which he said was for him at the time, a traumatic one. The fellatio performed by the accused on A, the subject of the prior convictions also makes it more likely that the accused performed fellatio on G. Nonetheless I need to scrutinise G's evidence with special care and in the particular circumstances of this charge, there are a number of reasons why I have a reasonable doubt that the fellatio occurred.
First, I am troubled by the inconsistencies between G's evidence in this trial and the evidence he gave, on oath, at the trial of the 1989 charge, when the fact that the accused had given him a 'head job' was expressly put to him and denied. While he was still a child during the 1989 trial, he was 17 years old and as he admitted in his evidence in this trial, he appreciated then the importance of telling the truth. I am not satisfied that embarrassment had anything to do with his denial. Embarrassment did not prevent G from telling the court (including his father who was present) about other things which he said the accused had done to him, both the conduct the subject of the 1989 charge and the previous incident when the accused had played with his penis which I accept and have found is the conduct the subject of count 1.
When it was put to G in cross-examination in this trial that he had lied in court about the head job during the trial of the 1989 charge, G did not admit that he had lied.[304] Logically, however, either G lied on oath during the trial of the 1989 charge, or he lied on oath in this trial. Either way, this reflects poorly on the credibility and reliability of G in relation to count 2.
This is a discrepancy or inconsistency of such a character that it causes me to wonder whether I can safely rely on G's account in this trial as to the happening of count 2.
Having scrutinised his evidence with special care, I consider there are significant issues with the credibility and reliability of G's evidence. Accordingly, I cannot be satisfied beyond reasonable doubt that the accused did perform fellatio on G as alleged and I find the accused not guilty of count 2.
As to count 3, there are a number of inconsistencies, both internal and external, in G's evidence and also another lie, which means that, once again, I am unable to find his evidence to be truthful, accurate and reliable.
First, I have concerns about the fact that G did not make any complaint about the conduct of the accused the subject of count 3 at the time he spoke to the police regarding the 1989 charge, particularly when the act the subject of count 3 was very similar behaviour, and was said to have occurred reasonably close in time to the 1989 charge. While conscious of the direction I have given myself pursuant to s 36BD of the Evidence Act, as a matter of logic, common sense and experience, if the conduct of the accused in count 3 was the last thing to happen before G left the country town, one would expect that this would be uppermost in G's mind when he made his statement to the police. Yet he did not mention it.
Secondly, like count 2, a significant matter which affects G's credibility and reliability concerning count 3 is the fact that G did not mention the conduct of the accused the subject of count 3 during his evidence on oath at the trial of the 1989 charge. There is no good explanation as to why G failed to mention the incident the subject of count 3 at that trial. It cannot have been due to embarrassment, since G gave evidence about the conduct the subject of the 1989 charge, as well as the conduct the subject of count 1, and in each case the type of touching was the same as now alleged in count 3.
Thirdly, as I have set out in [117] above, G admitted during cross-examination that he had lied on oath at the trial of the 1989 charge, when he said that he left the country town immediately after the incident the subject of the 1989 charge. I am unable to accept his explanation that he lied on oath because he was traumatised. For the same reasons I have already discussed in relation to count 2 in [421] above, the evidence he gave on oath in the trial of the 1989 charge cannot be explained or justified by either G's youth at the time or being traumatised. The fact that he lied on oath is serious and a significant matter of such a character that it affects G's credibility about count 3.
The complaints that G made to both S and his father do not, in my view, support G's credibility or reliability. With the complaint evidence of S and G's father, as well as S's evidence about G's distress, the question arises whether this evidence relates to the 1989 charge, or count 3 in the present indictment, or both. The State submitted that the complaint evidence relates to both incidents. However, the same complaint evidence was relied upon in the trial of the 1989 charge, with the sequence of events being as I have set out in [56] and [57] above.
I accept the defence submission that in the trial of the 1989 charge the State case was run on the basis that G made a complaint to S and G's father about something that had happened, and within the week he went home. That is exactly the same position which the State has taken in this trial in relation to count 3. S agreed that he was giving evidence about the same thing he gave evidence about in 1989. G's father spoke to his son only on the one occasion after which his son came home for good. In the circumstances there are, in my view, real difficulties with the State's reliance upon the complaint and distress evidence as relating to both the 1989 charge and count 3 in the present indictment.
The concerns which I have about the credibility and reliability of G's evidence about count 3 increase when I take into account:

[159]

While G was certain in his evidence that there were two separate incidents of touching while he was living with the accused in the country town, the matters I have identified raise, in my mind, a reasonable doubt as to whether the touching which G described the subject of count 3 actually occurred.
Having scrutinised G's evidence with special care, I cannot be satisfied beyond reasonable doubt that his evidence about count 3 is truthful, accurate and reliable. I cannot, therefore, be satisfied beyond reasonable doubt that the accused is guilty of count 3.
Given this finding, it is not necessary for me to consider whether the defence pursuant to s 17 of the Code applies.
Finally, given my findings in relation to counts 2 and 3, and the issues relating to G's evidence which I have outlined relevant to those two charges, I have taken another look at count 1 and whether the problems with the credibility and reliability of G's evidence also affects the truthfulness, accuracy and reliability of his evidence concerning count 1 - particularly as counts 1 and 2 arise out of the same incident. As I have set out in [410], I accept G's evidence about the occasion of counts 1 and 2. Two different types of conduct are, however, alleged in relation to each count. In my view, the same credibility issues about count 2 do not arise in relation to count 1. I do not consider it to be inconsistent to accept G's evidence that the accused touched his penis on that occasion, while having a reasonable doubt that the accused went further and performed an arguably more serious act of fellatio.
Having scrutinised G's evidence about count 1 again, I am satisfied beyond reasonable doubt that count 1 did occur as he described it. His evidence was believable and there are not the same significant discrepancies in and difficulties with his evidence about count 1 as exist in relation to counts 2 and 3. I am satisfied beyond reasonable doubt that G's evidence about count 1 was truthful accurate and reliable. I find that the accused did touch G's penis. My findings of fact in relation to count 1 are set out in the attached Schedule.
I therefore find the accused guilty of count 1, but not guilty of counts 2 and 3.

[160]

I found J to be an impressive witness and I am confident that he was telling the truth. His evidence about each of counts 4 to 7, as well as the other conduct of the accused (the thigh touching, the skinfolds incident, the sex talk and the squash incident) was compelling and believable.
In relation to the skinfolds incident, counsel for the accused submitted that there was nothing sexual in this because, as J admitted, the accused did not touch his genital region. However, just because J's genitals were not touched does not mean that this incident was not sexual or inappropriate. If the accused wanted to give advice about diet and exercise, a skinfold test was not necessary. I find that the skinfolds incident was sexual and inappropriate from the facts of the skinfolds incident, including those from the accused himself. The accused got J to remove clothing (whether or not it was just a shirt) and then purported to take a skinfold measurement without callipers and without doing anything else such as weighing J.
For the reasons I have already discussed, both generally and in relation to counts 1 to 3, I do not believe the accused's denials in relation to the sexual conduct about which J has given evidence.
It is still necessary, however, for me to carefully scrutinise J's evidence and its reliability before acting upon it.
The submission on behalf of the accused was that J's evidence should not be accepted, particular given the details in his evidence which J did not previously give to the police or prosecutors, I have set out in [179] - [181] and [185].
In relation to count 4, I have summarised the inconsistencies in [179]. In closing submissions, counsel for the accused has relied, in particular, on J's failure to mention before that he and the accused stroked each other's penises, and the failure to mention what measurements were taken. This does not, in my view, indicate that J's evidence is false or that he is not telling the truth about what happened. These are not inconsistences which make me doubt J's account of the specific act the subject of this charge. The stroking of each other's penises and the evidence of the actual measurements are not material or essential facts, and as a matter of common sense and experience I do not consider these would be matters that J would necessarily think were important when talking to the police.
On the essential facts required to establish the elements of count 4, J has always consistently given evidence of the accused masturbating in his presence in the context of the measuring incicent. Indeed when cross-examined about what he had told police, the whole of J's description in his police statement was read out.[305] In my view J's evidence of the measuring incident was consistent, in all material particulars, with his evidence at trial. J's evidence was not shaken in cross-examination and there was no sign of evasiveness or uncertainty in his evidence about the elements of this incident.
In relation to count 5, J readily conceded that he had become confused about whether or not C was present. This and the other inconsistencies which I have set out in [180], even when combined, are not such as to cause in my mind any reasonable doubt that this incident occurred as J said it did. I found J's evidence about count 5 to be inherently credible and reliable.
For both counts 4 and 5 there was evidence of opportunity. As the accused himself admitted, there were many occasions when he was alone with J. On P's evidence, there were many Saturdays when she was not home - she was at work, rather than playing softball as J thought, but this is a detail that I would not expect to be a matter of importance to a 13 or 14-year-old boy.
In relation to count 6, the farm incident, in respect of opportunity, there is support for J's evidence that he was there in the school holidays from the evidence of P. Counsel for the accused has, however, pointed to P's evidence that her brother, J's father, did not drive, as support for the accused's evidence and submitted that I therefore cannot accept J's evidence that this occurred in J's father's car. However, P did not accompany the accused and J. J's evidence of his father driving, and how he hid the magazine under the driver's seat is in my view, believable and I accept it.
Counsel for the accused submitted that hiding it under the seat of the car was an illogical place, and logically it would be easier for a grown man to bring pornography if he is going to use that in relation to a child. However, J's evidence was that he had found the magazine and told the accused about it, and the accused asked him to bring it. It is logical that J brought the magazine and hid it somewhere his father was unlikely to look (and as a matter of common sense and experience, looking under the driver's seat is not a place one generally looks unless something is dropped, for example, down the side of the seat).
In closing submissions much was made of J's evidence that the accused called out the name of the girl in the magazine. That detail was, in my view compelling and a detail which I believe actually happened during the course of this incident. Counsel for the accused submitted that calling out the name of the girl 'flies in the face' of the accused having a sexual interest in boys. However, that submission in turn flies in the face of the accused's evidence that he had normal sexual relationships with his girlfriends and wife.
Similarly in relation to count 7, J's evidence about asking why the man in the photograph had red testicles was inherently credible and I believe it.
Counsel for the accused submitted that there was an element of 'ridiculousness' about count 7, because of the fact that the same magazine was brought to the grandparents' house, and there was also an inconsistency as to whether or not J brought it there or the accused directed him to bring it there. That is not, in my view, an inconsistency which affects my assessment of J's credibility.
The descriptions which J gave of what the accused did in each of the charges were clearly from a person who actually experienced each of those incidents. He did not seek to embellish or exaggerate, but gave his evidence as best as he was able to remember.
The evidence of the prior convictions and the accused's own admission of having a sexual interest in young boys at the time, together with my finding of guilt on count 1, establishes that the accused is the type of person who is likely to have committed all of the acts the subject of counts 4 to 7. I do not believe the accused's evidence that, despite having a sexual interest in young boys, he did not act on that until 2016 and 2017.
It was suggested by counsel for the accused that as a matter of common sense there was no truth to the allegations made by J against the accused given that the closeness of their relationship from 2010 onwards, and it is impossible to reconcile their later friendship (including the babysitting of H) with these allegations and the delay in J's complaint. I do not agree. The accused was J's uncle, and a father figure. It is clear that apart from the sexual abuse, they had a close relationship for many years. It is understandable that in these circumstances, J would hesitate to make a complaint. J's explanations, as I have set out in [194], are believable and compelling, and I accept them.
There are two further matters I need to address, arising out of the cross-examination of J about the text messages he had with his cousin C.
First, there was a suggestion that J was not a witness of truth because of his reaction of disbelief to a text which C had sent him, and his evidence that he thought someone was at that stage writing C's texts for her or at least influencing what she wrote. This arose because after C told J that she had been abused by her father, she changed her story and said it was not her father. I can well understand why J sent a cynical response to this change in C's position.
Secondly, there was a suggestion during the cross-examination of J relating to the text messages that there had been some collusion between him and C. During closing submissions the suggestion was made that I could infer that J and C had discussed their allegations with each other. After discussion with counsel for the accused, however, the suggestion of collusion was withdrawn, although the accused maintained that J had a motive to lie.
I have considered the possibility that J and C 'put their heads together' or discussed their allegations with each other which might, of course, impact on the assessment of their credibility and reliability, either on the basis of collusion, or upon the basis of having a motive to lie.[306] It is true that during the text messages J told C he would support her and go with her to the police when she was ready. However that does not, in my view, show any collusion.
From the text messages and the evidence I heard from J and C, in my view it was not reasonably possible that J and C had either deliberately colluded or been influenced by each other's memories. There is no similarity in their accounts given in this trial. In my view it could not be said that J and C's allegations have been the result of them either deliberately or subconsciously influencing each other's accounts, or deliberately lying.
I do not accept that J's texts are anything sinister or demonstrate anything other than a concerned older cousin saying he would support C, if and when she needed it.
I have scrutinised J's evidence with great care. Having done so, and even after taking into account the forensic disadvantages for the accused because of the delay and paying heed to the Longman warning, I do not believe the accused's denials and I am satisfied beyond reasonable doubt as to the truth, accuracy and reliability of J's evidence about each of counts 4 to 7.
I am satisfied beyond reasonable doubt that the accused is guilty of each of counts 4 to 7 inclusive.
The facts which I have found in relation to each of counts 4 to 7 are set out in the attached schedule.

[161]

I found that C was generally a credible witness who appeared to be truthfully describing incidents which had actually happened to her. As the State pointed out, there were many times during the course of her evidence where C appeared to have great difficulty in giving it, however, her demeanour is not necessarily the best guide to her accuracy and reliability.
Counsel for the defence submitted that C was not a credible and reliable witness due mainly to the inconsistencies in her evidence, her admitted lies in the text messages and the fact that she had lied to psychologists and psychiatrists who were treating her in 2016. The defence specifically relied on the evidence that C gave in the course of cross-examination which I reproduced in [272]. These matters, it was submitted, cast considered doubt on the reliability of C's evidence both that these things happened and that it was her father who did these things to her.
I need to remember that these inconsistencies all relate to cross-examination on a prior out of court statement. What C said in text messages and emails to doctors, is not evidence of the facts in those text messages and emails. It is only relevant to an assessment of her credibility.
I should note that what the defence has termed a lie is really only a partial lie. C has consistently said all along that she was sexually abused. What she lied about was whether her father had sexually abused her.
C gave an explanation as to why she lied about who had abused her and also why she had not made any earlier complaint. It was to protect her family. C's evidence about her reasons for both saying what she did and her delay in making a complaint to the police - protecting her family - is both inherently credible and plausible, and I accept it. Of course by mid July 2017 C had witnessed her father sexually offending against A. At about this time her mother separated from her father. The family unit was damaged, there was nothing further to protect, and it was shortly after this, in August 2017, that C went to the police to make her complaint.
It is important to note that while there were some inconsistencies in her evidence and what she had earlier said to the police (which I will discuss when looking at each charge), C did not make any prior inconsistent statement to the police about the accused's offending, or say something completely contrary on oath to a court (such as in the case of G). The previous out of court statements are only admitted for the purpose of assessment of C's credibility.
On the issue of identity, I am satisfied beyond reasonable doubt that it is the accused who is the alleged offender and not somebody else (such as the 'big boy from the neighbourhood'). Given the description of all of these incidents given by C, most of which happened inside her home and many of which occurred at her shower time and bedtime, the offender could only have been the accused. There was no other adult male living in the house. There is no other adult male who supervised bath time. There is, in fact, no evidence about the 'big boy from the neighbourhood'. In her evidence at trial C clearly identified the person who did these things to her as her father.
For the reasons I have previously discussed in relation to the accused's credibility, I do not believe the accused's denials in relation to any of counts 8 to 18.
It is still necessary to scrutinise C's evidence with special care in relation to each charge, to see whether what she said happened did in fact happen, taking into account any evidence from the accused which I am prepared to accept.

[162]

In relation to count 8, the showerhead incident, I believe C's evidence and I am satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of C's evidence of what happened to her. She was clearly describing something she had experienced, including being digitally penetrated by her father. In observing her demeanour she was obviously embarrassed and a little upset when describing this.
There is support for C's account about the existence of the detachable showerhead from P's evidence about the change in showerhead in the ensuite bathroom, and the fact that the detachable showerhead was used to make it easier to wash the children's hair. For the reasons I have given when discussing the accused's credibility, I prefer P's evidence about when the detachable showerhead was in place. I am unable to accept the accused's evidence that he changed the showerhead only a matter of months before the family moved house and I am also unable to accept that timing wise count 8 was not possible. It was possible, and I am satisfied beyond reasonable doubt that count 8 happened as C described.
There was only one inconsistency in C's evidence about count 8, and that relates only to her age; on an earlier occasion she had said she was 7 years old, while in her evidence at trial she said she was 6 years old. I do not consider this to be an inconsistency which casts any doubt on C's credibility and reliability about the specific act the subject of this count. There was no inconsistency in relation to what she said the accused had done. As she said in her evidence on oath 'I clearly remember what happened'. I found C's evidence about this and the showerhead incident to be truthful, accurate and reliable.
Having scrutinised C's evidence with great care, and after taking into account the forensic disadvantages for the accused because of the delay and paying heed to the Longman warning, I am satisfied beyond reasonable doubt as to the truth, accuracy and reliability of C's evidence about count 8. Accordingly I find the accused guilty of count 8.

[163]

In relation to counts 9, 10 and 11, the conditioner incident and the subsequent lip gloss incident, once again I am satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of C's evidence that the accused did the specific act the subject of each of these charges.
While there was an inconsistency between her evidence at trial and her previous out of court statement about the age she was at the time, this is not something which leads me to conclude that C's evidence of the specific acts which she alleged the accused had done is neither credible nor reliable. In addition, it is the evidence on oath given by C which I am to proceed upon, and not what she has said in any earlier out of court statement.
As I have already observed, in cross-examination C did not deviate in her evidence about what the accused had done. Her evidence about how her vagina was stinging after the digital penetration in the conditioner incident is inherently credible. Another mark of C's credibility is how she spoke honestly about how she was masturbating with the stick of lip gloss. As to what happened subsequently the subject of counts 10 and 11, I am satisfied beyond reasonable doubt that she was describing things she had experienced at the hands of her father, the accused.
My finding of guilt in count 8, another occasion where the accused digitally penetrated C, increases the likelihood that the accused committed the specific act the subject of count 9.
For the reasons I have discussed at [396] above, I do not accept any suggestion from the accused that it was impossible for the accused to commit counts 10 and 11 because C was not sleeping in a single bed at the time, and the accused was too tall and would not have fit on the bed. The evidence from the accused about C not sleeping in a single bed until she was 7 or 8 years old is, as I have found, inherently incredible and I reject it.
There is an issue about whether there was a sexual penetration in count 10. Having accepted C's evidence and having regard to the law that any penetration of the outer lips of the vagina is sufficient to establish a sexual penetration, I am satisfied beyond reasonable doubt that there was a sexual penetration in count 10.
My finding of guilt in counts 8 and 9, two other occasions where the accused digitally penetrated C, increases the likelihood that the accused committed the specific act the subject of count 10.
I have scrutinised C's evidence with great care. I have taken into account the forensic disadvantages for the accused because of the delay and the other matters I have directed myself pursuant to the Longman warning. Having done so, I am satisfied beyond reasonable doubt as to the truth, accuracy and reliability of C's evidence about counts 9, 10 and 11. I find the accused guilty of these counts.

[164]

Moving on to count 12, the boy dance incident, the only inconsistency in relation to C's evidence about this incident is her age at the time. She previously said she 7 years old at the time, while in her evidence on oath she said she was 4 or 5 years old. In my view that inconsistency does not indicate that C's evidence is false or that she is not telling the truth about what happened. There is, otherwise, no inconsistency between any out of court statement and her evidence at trial.
C was clearly describing something she had experienced, and that experience of both having her father's penis in her mouth, and swallowing what she thought was urine at the time, was not something which she has made up or is likely to forget.
In discussing this incident during his evidence, the accused suggested he would never have done what C said he did, in splashing urine back up onto her vagina, because she might end up with another urinary tract infection. However, when I heard the evidence from the accused about C's history of urinary tract infections, it became apparent to me that this had not been an issue for C from the ages of 3½ to 4 years old. By that time, as the accused himself said, C's kidneys and bladder had returned to normal, there was no surgery required and no follow-up required. However, when I sought to confirm this at the time, as I have set out in [295], the accused suggested that C's kidneys and bladder were still an issue until she reached puberty. I do not believe it. As a matter of logic and common sense, if there was any issue about C's kidney or bladder until puberty, her parents would have made that clear to her. C was not aware of any such issue when this was put to her in cross-examination. Accordingly, I do not believe the accused's evidence that he would not have splashed urine onto C as she described because of any ongoing issues with urinary tract infections or her kidney condition.
Having scrutinised C's evidence with great care, and after taking into account the forensic disadvantages for the accused because of the delay and paying heed to the Longman warning, I do not believe the accused's denials and I am satisfied beyond reasonable doubt as to the truth, accuracy and reliability of C's evidence about count 12. I find the accused guilty of count 12.

[171]

In relation to the bedroom incident, counts 15 and 16, it was apparent to me that that C found difficulty giving evidence about this and I noticed her become particularly upset in describing what occurred. The evidence she gave, in particular her description of how the accused penetrated her vagina with his penis, was in my view inherently credible. It was the first time the accused had penetrated her with his penis; something she would not forget.
For counts 15 to 16, like counts 10 and 11, the suggestion was made that it would have been impossible for the accused to have committed these acts because of the size of C's bed. For the reasons I have already given in relation to counts 10 and 11, I do not believe the accused's evidence that C was in a three quarter sized bed until she was 7 or 8 at the time of the family's move to their new home.
Another submission made by counsel for the accused is that it was unlikely that C was using nail polish at the age she said she was at the time of this incident. I am unable to agree. If she had a stick of lip gloss at the time of counts 10 and 11, when she was 7 years old, then as a matter of logic, common sense and experience, it is likely that she also had nail polish, including nail polish which is suitable for a child, at the time of these counts, when she was also 7 years old.
The inconsistencies between C's evidence at trial and her statement to the police, as I have set out in [264] do not, in my assessment, detract from C's general credibility or the reliability of her account of this incident.
My finding of guilt in counts 8, 9 and 10, other occasions where the accused digitally penetrated C, increases the likelihood that the accused committed the specific act the subject of count 15. I do not believe the accused's denials in relation to either count 15 or count 16.
After taking into account the forensic disadvantages for the accused because of the delay and applying the Longman warning, and scrutinizing C's evidence with special care I am satisfied beyond reasonable doubt as to the truth, accuracy and reliability of C's evidence about each of counts 15 and 16. I therefore find the accused guilty of these counts.

[173]

Finally as to the toothbrush incident, count 18, having heard all of the evidence, contrary to the submissions on behalf of the accused, I find that there is no difficulty timing wise in relation to the heat lamp. The submissions made on behalf of the accused depend on my accepting his evidence about when the heat lamp was installed, and I am unable to accept his evidence.
C was consistent in her evidence about the existence of the heat lamp and the incident generally. She did say she was in pre-primary, which would place the incident occurring during 2004, the year she turned 6. P gave evidence that the heat lamp was installed when the kids were little, in probably 2004, maybe 2003. For the reasons I have already given, where there is a conflict between the evidence of P and the evidence of the accused, I prefer P's evidence. Accordingly there is support for C's evidence about the existence of the heat lamp at the time of count 18.
While I am conscious of the forensic disadvantage in relation to count 18 in relation to proving or disproving the existence of the electric toothbrush, I do not believe the accused's denial of this incident. I am satisfied beyond reasonable doubt of the truth, accuracy and reliability of C's evidence about this incident.
My finding of guilt in count 11, where the accused's conduct involved procuring C to use a stick of lip gloss to masturbate herself increases the likelihood that the accused himself used an object, this time a toothbrush, to commit the specific act the subject of count 18.
Finally, I am satisfied beyond reasonable doubt that the placing of the toothbrush onto what she now knows to be her clitoris, constitutes a sexual penetration within the legal definition of that term.
I have scrutinised C's evidence with great care. Having done so, and even after taking into account the forensic disadvantages for the accused because of the delay and paying heed to the Longman warning, I am satisfied beyond reasonable doubt as to the truth, accuracy and reliability of C's evidence about count 18. I find the accused guilty of this count.

[183]

Counts 9, 10 and 11 occurred on the same day, although counts 10 and 11 occurred some hours after count 9. C was 7 years old.
Count 9 occurred in the ensuite bathroom of the family home. C was inside the shower and the offender stood on the outside of the shower, with the door open. The offender had a bottle of conditioner and first rubbed some onto his hands, then rubbed it on C's body and then on her vagina. He then put his finger in her mouth and then into her vagina. As the offender's finger went into C's vagina, it stung and hurt her because as she explained it, 'it felt like it went all the way in and was held there for quite some time'. After the offender removed his finger from her vagina it was stinging a lot.
Counts 10 and 11 followed count 9, on the same day. After shower, when C was in bed, her vagina was stinging. She got out of bed and told her mother and father, the offender, who were both in the kitchen/living area of the family home, that her vagina was stinging. They told her to go back to bed and they would bring something in, so she went back to bed. The offender came back with some Savlon cream. When he came into her bedroom she had a stick of lip gloss. She did not know why she was doing it, but she was moving this in and out of her vagina. The offender did not say anything, but just left. He came back and she was not doing this anymore. He got onto the bed next to C and asked her to show him what she was doing before, and said he wanted to show her how to do it. He inserted his index finger into her vagina and moved his finger in and out of her vagina. This is the conduct the subject of count 10.
After a while the offender asked C to show him again what she had done with the stick of lip gloss. She used the lip gloss as he asked and moved it in and out of her vagina. This is the conduct which is the subject of count 11. He then told her to feel his penis. He was wearing boxers. She felt his penis, it was hard and the offender told her it was good that it was hard.[310]

Azarian v The State of Western Australia

At a glance

Court

Decision date

Source

Judgment (224 paragraphs)

THE STATE OF WESTERN AUSTRALIA -v- GT [2020] WADC 65 (15 May 2020)

Parties

Legislation Cited (2)

Cases Cited (11)