R v B - [2022] SADC 64

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v B
Criminal Trial by Judge Alone
[2022] SADC 64
Reasons for the Verdicts of her Honour Judge Kudelka
27 May 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - OTHER OFFENCES
The accused pleaded not guilty to the offences of gross indecency (count 1) and aggravated communicating with the intention of making a child amenable to sexual activity (count 2). The complainant of these offences was his niece. It was alleged that the accused showed the complainant a pornographic video (count 1). It was further alleged that, during a video call, the accused asked the complainant to touch her nipple (count 2). The accused gave evidence denying the allegations. The prosecution did not prove beyond reasonable doubt that either of the two offences did in fact occur.
Verdicts: not guilty of count 1 and count 2.

R v B
[2022] SADC 64

The accused is charged with committing two sexual offences in relation to his niece. The accused’s partner is the sister of the complainant’s mother.
Count 1 charges the offence of gross indecency.[1] It is alleged that between 1 August 2019 and 31 May 2020 at Munno Para, the accused committed an act of gross indecency with or in the presence of the complainant, a person under the age of 16 years, by showing her pornographic material.
[1]Section 50(1)(a) of the Criminal Law Consolidation Act, 1935.
Count 2 is the offence of aggravated communicating with the intention of making a child amenable to sexual activity.[2] It is alleged that on 29 April 2019 at Munno Para, the accused made a communication for a prurient purpose with the intention of making the complainant, a child under the age of 17 years, amenable to sexual activity. The offence is aggravated because it is alleged that he committed the offence knowing the complainant was under the age of 14 years at the time.
[2]Section 63B(3)(b) of the Criminal Law Consolidation Act, 1935.
On the complainant’s evidence (and on the amended particulars of each of the counts[3]), count 2 occurred before count 1.
[3]At the commencement of the trial, the dates for count 1 were amended to between the 31st day of August 2019 and the 31^st day of May 2020. The date for count 2 was amended to 29 April 2019. The original dates had count 1 occurring before count 2.
The accused elected for trial by judge alone.
The elements of the offences
The prosecution has the onus of proving each element of each offence beyond reasonable doubt.
Count 1, the offence of gross indecency, has three elements:
1.     That the accused committed an act in the presence of the complainant.
2.     That the act was grossly indecent.
3.     That the act was committed when the complainant was under 16 years.
There is no dispute in relation to the third element. The complainant was aged 13 or 14 at the time of the alleged offence.
For the purpose of the first element, the act alleged is that the accused showed the complainant a pornographic video. There is no dispute in relation to the second element, namely that such an act would be grossly indecent. The issue is whether the prosecution has proved beyond reasonable doubt that the accused did in fact show a pornographic video to the complainant.
Count 2 has four elements which the prosecution must prove beyond reasonable doubt:
1. The accused made a communication.
2. The communication was for a prurient purpose.
3.The communication was made with the intention of making the complainant amenable to sexual activity.
4.The complainant was under the age of 17 years at the time of the communication.
The aggravating factor is that the accused knew the complainant was under the age of 17 at the time of the communication.
There is no dispute in relation to element four and the aggravating factor. The complainant was 13 at the time of the alleged communication.
For the purpose of the first element, the communication alleged is a Facetime call during which the accused squeezed his own nipple and asked the complainant to do the same. The issue is the first element, namely, whether the prosecution has proved that the accused made any such communication.
The defence case is that neither of the acts, the subject of each of the charges, in fact occurred.
Proof
The prosecution has the burden of proving each of the offences. There is no onus on the accused to prove anything. He has the presumption of innocence in his favour. The prosecution must prove each element of each of the offences to the standard of beyond reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt or that the accused is possibly or even probably guilty.
The prosecution case
The prosecution case regarding the acts the subject of each of the charges relied solely upon the evidence of the complainant.
The prosecution called the complainant, her mother and Mr S.
The complainant gave evidence that she and her family (comprising her mother and older brother) lived with the accused’s family (comprising the accused, the accused’s partner and three children) on two occasions. The first time was when she was in Year 7. She and her brother lived there with the accused, his partner and three children. Her mother was rarely ever there. She described her relationship with the accused as quite close. She considered him to be a father figure.
On the complainant’s evidence, count 2 is alleged to have occurred after they lived with the accused’s family for the first time and when they had moved to live in the Riverland at Mr S’s place.
On the complainant’s evidence, count 1 is alleged to have occurred when they lived with the accused’s family the second time, which, on her evidence, was around August 2020 or sometime in 2020.[4]
[4]T26.
Count 2
The complainant gave evidence that, by reference to screenshots from her mobile phone (exhibit P2), the accused committed count 2 on 29 April 2019.
At that time, she was living with her family at Mr S’s house in the Riverland. Her family had moved out from living with the accused and his family for the first time. She had her own mobile phone and was in daily contact with the accused via text messages and phone calls.
The complainant gave evidence that exhibit P2 shows her contact with the accused from 26 April to 7 May 2019. It shows her contact with the accused via his partner’s account on Instagram. They did video calls, sent messages and shared posts/stories. Her contact was usually with the accused. His partner was rarely on Instagram. If the complainant had contact with the accused’s partner, it would be via her mother’s phone or Messenger.
Exhibit P2 is a record of video calls on 29 April 2019 which commenced at 5.50 pm with a call from the complainant. The call ended at 5.53 pm. The record then shows ‘Post Unavailable - This post is unavailable because it was deleted’. The only evidence about that type of entry is from the complainant who said that a post can be deleted by the sender.[5] The post was from the complainant. She gave no evidence about why, when or how it was deleted.
[5]T45.
The second video call from the complainant started at 5.57 pm and ended at 5.58 pm. The third video call from the complainant started at 5.58 pm and ended at 5.58 pm.
In explaining the number of video calls, the complainant gave evidence that there were a number of drop-outs because of WiFi, data issues or the accused could have received another call from someone else.[6]
[6]T18.
The record then shows ‘Post Unavailable - This post is unavailable because it was deleted’ from the accused’s partner’s account to the complainant.
The next video call was made by the complainant at 6.10 pm and ended at 6.24 pm.
A message sent from the accused’s partner’s account says, ‘what you doing’. The next two video calls made by the complainant were at 7.05 pm to 7.06 pm, then again at 7.06 pm to 7.10 pm. A text from the accused’s partner’s account says ‘gone’.
The next video call from the complainant was 7.11 pm to 7.19 pm. On the prosecution case, this is the video call during which the offence was committed.
The complainant gave evidence that she was in her bedroom at Mr S’s house. During the video call, she could see the accused in his kitchen. He was wearing long, dark trousers but no shirt. He showed her the kitchen and how he cleaned it, his fish tank because he had new fish and a WiFi box which he had received in the mail and was setting up. She believed he said that his partner and the children were asleep in their rooms, but she was not 100% sure about that.[7] At some point, he showed her his nipple, ‘he was squeezing it or teasing it or like and he asked me to do the same’.[8] She indicated a pinching motion. She said, ‘he was like rolling it between his fingers’.[9] When he asked her to do the same thing, she was quite startled. She thought she misheard him, so she said, ‘what’. He then repeated himself. She then hung up on him.
[7]T49.
[8]T20.
[9]T20.
The complainant gave evidence that she received some messages from the accused during that phone call which he asked her to look at, but she was texting a friend at the time, so she looked at them after the call.
He sent her two images and a video. One of the images was of a woman wearing underwear only, covering her nipples with her hands. The other image was of a woman wearing a very tiny blue bikini. The complainant did not play the video but in the thumbnail of the video, she could see an image of a man over the top of a woman who was lying down. The man had pants on, the woman was topless, and they were very close together.
There is no record of the two images and video on exhibit P2.
The complainant gave evidence that the accused then sent a message (visible on exhibit P2) which said ‘sorry’. He then sent her a link from ‘dapper dragons’ (visible on exhibit P2) with a video of dragons described as ‘little video of these cuties chowing down! I love feeding videos!’. The complainant gave evidence that the accused liked lizards and small reptiles.[10]
[10]T46.
The complainant gave evidence the accused then sent a text (visible on exhibit P2) which says, ‘call me back’.
A video call started from the accused’s partner’s account at 7.23 pm but then a missed video call is recorded. The complainant said she did not answer that call. She went out into the kitchen and told her mother what had happened. Mr S was there at the time.
Exhibit P2 shows that after the missed call, a link was sent from the accused’s partner’s account which shared a post by ‘gamibri’ of anime entitled ‘dumb pilot’. The complainant did not know who sent that image. She said it was possible that one of the children sent it.
After that image was sent, exhibit P2 shows a text from the accused’s partner’s account, ‘Talk to you later on’.
The complainant’s phone then sends a live video (details unavailable), then makes four video calls from 7.53 pm to 9.17 pm. The complainant was not asked about those video calls.
Complaint (count 2)
The complainant gave evidence that after she hung up on the accused at 7.19 pm, she went out into the kitchen and told her mother what had happened. Mr S was nearby. The complainant says she told her mother, ‘[the accused] has asked me to touch my nipple on Facetime’. She said her mother looked quite stunned and so she repeated what she said.
The complainant’s mother gave evidence that at one stage she was living with her sister and the accused with her two children. She then left her sister’s house to live in the Riverland. She lived with Mr S for a few months and then moved into her own house in the Riverland. It was then that her daughter made the complaint that the accused had been requesting to see her nipples via Facebook Messenger.[11]
[11]T69.
She did not recall Mr S being present but when they moved into her house, he spent a lot of time there with them. She said the complaint could have been first made when they were living with Mr S and then it was revisited when she had moved into her place, but she could not recall him being there at the time of the complaint.
Mr S gave evidence that it was around 2018 when he commenced a relationship with the complainant’s mother. The family lived with him for about four to six months.
He gave evidence that the complainant came out of her room at his place and told her mother that she was on a video call with the accused, and he requested that ‘she show him her tits and push them together’.[12] He believed that conversation was around 2018. He said the complainant’s mother was not living with him in 2019 or 2020. He recalled the complainant’s mother said something along the lines ‘it’s just Uncle [first name of the accused]’.[13]
[12]T88.
[13]T91.
Admission (count 2)
The complainant’s mother gave evidence that not long after that complaint, she spoke to her sister and the accused about it. During examination‑in‑chief, she was asked ‘did you then have a conversation with [sister] and [accused] about what [the complainant] had told you’. She said ‘yes’. She said the accused was ‘really remorseful, embarrassed, begging forgiveness and hoping that we could work through something as family to rectify the situation’.[14]
[14]T69 - 70.
In cross‑examination, she said the conversation was at the accused’s house. The three of them sat down and it was part of continued conversations about where the accused’s sexual deviancy had been leading. They wanted to make sure that his mental health was taken care of and to get him to put some effort in with some counselling. He was apologetic, saying ‘he loves us and that he wanted to make it right’.[15]
[15]T81.
Count 1
The complainant gave evidence that she went to live with the accused and his family on a second occasion. She was still in primary school. She was often not at school. She and the accused ‘just acted like the whole phone incident didn’t happen’.[16] She described their relationship as strong and friendly.
[16]T27.
There was one day when she and the accused were home alone. Her mother was rarely ever there. The accused’s children were at school and her aunty and brother had gone shopping for the day. She and the accused were in the lounge room which was also the accused’s bedroom which he shared with his partner. The accused was sitting on the bed. The complainant was on the couch. They were picking a movie to watch from the hard drive. The accused had the remote in his hands and he came across the video on the hard drive. She said they both realised it was a pornographic video from the still image. There was a girl having a shower. He asked her if she wanted to watch it. She was quite curious because she had never seen anything like that before. He asked her to promise not to tell anyone, especially not her mother because she would get mad.
They watched the video. It came to a part where a naked man went into the shower. The woman gave the naked man oral sex. The accused said, ‘that is what boys like. You can’t get a boyfriend unless you do’.[17] The complainant then went to her room and watched movies in there.
[17]T30.
Complaint (count 1)
The complainant gave evidence that she did not tell her mother about the occasion the subject of count 1 until the following year. They were at Mr S’s house. She believes that she was talking with her mother and others about something pornographic. She was asked if she had ever watched it before and she said that she had with the accused. They all looked at her really concerned. She was told that it was not normal for an uncle to watch that with his niece.
The complainant’s mother gave evidence that at some stage she was considering sharing a house again with her sister and the accused. She discussed that plan with the complainant who said she did not want to live with them again because the accused knocks on the door every five minutes when she is in the shower. The complainant also said that the accused watched porn with her. She did not give many more details. The complainant said it ‘grossed her and eked her out; he told her it was like an educational thing from an uncle to a niece’.[18] The matter was reported to police, and they did not move in with her sister.
[18]T70.
The defence case
The accused elected to give evidence and called his partner to give evidence. The accused was not obliged to give or call evidence. He has a presumption of innocence in his favour and a right to silence. By giving and calling evidence, he took on no onus of proof. The burden remains on the prosecution to prove each of the charges to the standard of beyond reasonable doubt.
Evidence of the accused
The accused gave evidence that he had been in a relationship with his partner for about 14 years. They have three children.
In about 2020, the complainant’s mother and her children moved in with the accused and his family. He thought they may have lived with them before as well, but he was not sure when. In 2020, they stayed for about three to four months then moved to live in the Riverland. The complainant’s mother was rarely there. On multiple occasions, he and his partner asked the complainant’s mother to try and get her life back on track.
The accused denied committing count 2 and sending any inappropriate images/video. He denied sending any of the messages in exhibit P2. On that day he would have been looking after his kids at home because he is always with his kids. They get home from school about 3.00 pm and then normally ‘go on’ the TV or a tablet or the phone.[19]
[19]T105.
After the complainant moved to the Riverland, she was trying to call every day, but he never answered the phone. He was always too busy with the kids or his fish tank. He never had face‑to‑face conversations with the complainant via Instagram. He does not know how to send links on a mobile phone. His partner spoke to her a couple of times. It was his partner’s mobile phone and her active account. He did not have a mobile phone.
He has a skin condition that causes his skin to break out in boils and pimples. On one occasion when the complainant was living with them, she popped his pimples.
The accused denied committing count 1. The TV was just behind the door in the room where he and his partner slept, which was also the lounge room. He denied having a hard drive or USB in the house. There was no hard drive attached to the TV in the lounge room. The hard drive seized by the police was a brand new one which had never been opened and used. He gave evidence the complainant always tried not going to school, but he told her to go. There were no occasions when she would be home in the afternoon whilst his partner was out shopping.
In cross‑examination, he said he never watched movies with the complainant. He did not have a close relationship with the complainant, but they did talk a lot. He found her attempts to contact him annoying. He was always too busy and had three kids of his own. When she rang, no‑one answered the phone. He never chatted with her on the phone. He does not know if his partner ever answered the phone.
He denied having any conversation with his partner’s sister. He does not talk to her because he has no time for her. He denies ever apologising. There was no discussion about his mental health because no‑one cares about mental health. He said his partner’s sister had a drug habit which he did not like. She never told him what the complainant had said about the occasion with the nipples.
Evidence of accused’s partner

The accused’s partner gave evidence that her sister (the complainant’s mother) and the two children stayed with her family over the period 2019 to 2020 for about four and a half months. Her children were aged 12 and under at that time. The complainant’s mother was there maybe every third night. Her absence caused a lot of friction. They asked the complainant’s mother to leave. She went to the Riverland with her children.
She described the relationship between the accused and the complainant as a strong one.
In relation to count 2, the accused’s partner recognised the messages/photos/links in exhibit P2 as being the type that she and her children would send. For example, the photo of a car was something that her son would send. The accused had no interest in cars. It was her Instagram account on the mobile phone which the children used now and then. They knew how to send messages.
The complainant called a lot of times and she had video calls with the complainant. She would message the complainant and send funny little videos, a lot of art and craft things and emojis.
She gave evidence that the accused is quite illiterate. He never used the phrase ‘LOL’ (as seen in exhibit P2). He would not attempt to write anything if he did not know how to spell it. The accused did not normally use the Instagram account. He liked to watch videos on Facebook about fish.
She said the accused did participate in video chats with the complainant. The complainant usually called through and they would both say hello. If the complainant was wanting to video chat after the children got home from school, the chat would generally be with her or the children. The complainant usually wanted to talk to her. They had a great relationship.
She had a conversation with the complainant’s mother over the telephone during which the complainant’s mother said that the accused had asked the complainant to squeeze her nipples. The complainant’s mother then came to speak to them in person. She thinks this conversation was about three weeks after 24 April 2019 (the complainant’s birthday). The allegation was put to them, and they all talked about it. The accused said that it did not happen. He remembered talking with his shirt off. He had a boil next to his nipple and could have been touching that. He acknowledged that he could have offended the complainant because he had his shirt off. He said he was sorry if he had offended anyone. Everyone apologised for making everyone feel uncomfortable. It was pretty much left at that. She confirmed that the accused has a skin disorder causing him to have boils or pimples on his chest and back. The accused often does not have a shirt on because of his skin issue.
In relation to count 1, she rented one hard drive in 2019, but it had never been used and was in the box. There was no pornography in the house as far as she was aware. She did not have any USB devices in the home, nor was there a hard drive attached to the TV in the lounge room. She did not take the complainant’s brother on any shopping outings. He was then about 14. He spent a lot of time with the complainant’s mother. She was using a lot of drugs and he thought that if he stayed with her, then she would not use the drugs. It would not often be the case that the accused was home alone with the complainant because the complainant always liked to go out with her, ‘she was my little side kick she was’.[20]
[20]T147.
Assessment of the evidence
The complainant gave evidence in a confident manner. After hearing her evidence, I considered that she was a credible witness. However, after hearing the remainder of the evidence in the trial, I was left with some doubt about her credibility and do not consider her to be a reliable witness.
When she gave her evidence, the complainant’s mother did not hide the fact that she had a significant drug habit during the relevant time frame. I got the impression that she was doing her best in the witness box to focus and remember, but she struggled. I think her memories regarding the places, dates and times of events are unreliable. That makes me very cautious when considering her evidence about the substance of conversations on various occasions. I also think she has some ill feeling toward her sister and the accused which may arise, not only from the nature of these allegations, but also from their view of her drug use and their request for her to leave their house. Her evidence was adversely impacted by her lack of impartiality.
I found Mr S to be a credible witness. His evidence was straightforward and to the point.
I was not impressed by the evidence of the accused. When he gave his evidence, I was unaware that he had paranoid schizophrenia. He presented as someone of low intelligence who was overly emphatic in his denials and determined to distance himself from the complainant. There is no evidence about whether his illness may have had an impact upon his presentation in the witness box.
I became aware of the accused’s illness during the evidence of his partner. She presented as a straightforward, credible and reliable witness. She did not come across as someone who was barracking for the accused. There were aspects of her evidence which contradicted the accused’s evidence. Those aspects included her description of the relationship between the complainant and the accused as a strong one, her evidence that the accused did participate in Facetime calls with the complainant, her evidence that the accused could have sent the Instagram image of the cute dragons and her evidence that there was a conversation during which her sister relayed an allegation made by the complainant. When she was giving evidence on those aspects, the accused became visibly agitated. I generally preferred the evidence of the accused’s partner over the evidence of the other witnesses.
Count 2
I do not accept the complainant’s evidence that her communications via Instagram as set out in exhibit P2 were almost exclusively with the accused. Having observed the accused give evidence, including what I regard as his low intelligence, I think it unlikely that he was sending all the messages. I think it more likely that most of the communications were from the accused’s partner and the children. In her evidence, the accused’s partner adopted some of the texts as the type of things that she would say, for example, ‘dope as fuck’. She said that phrase was something they picked up from a TV show called Lunatics.[21] She often used ‘LOL’ and emojis. She also would have texted ‘I’m bored as hell, nothing to do, I need more data’. She said she always complained about not having enough data and was usually ‘bored as hell’.[22] She uses a number ‘1’ when writing messages such as ‘funny 1’.[23] She used the expression ‘cool as’.[24] She thought one of the children would have sent the ‘dumb pilot’ link on 29 April 2019. They were into anime and her 10 year old was ‘a pretty computer savvy kid’.[25] She would have sent the photo of the flowers on 1 May 2019.[26]
[21]T133.
[22]T134.
[23]T134.
[24]T135.
[25]T135.
[26]T136.
I consider that the video calls on 29 April 2019 could have been between the complainant and the accused/the accused’s partner/the children or a combination of all three. Even if the video call at 7.11 pm was with the accused, I do not accept the complainant’s evidence that during the video call the accused said that he believed his partner and the children were asleep in their rooms. When the complainant gave that evidence, it was in a manner consistent with it being an after‑thought to try and explain where everyone else was at the time. The video call was from 7.11 pm to 7.19 pm. The accused’s partner gave evidence that she was a busy mum in a busy household with three young children. Bedtime for the children was 7.30 pm to 8.00 pm.[27] I think it highly unlikely that she and the children were all asleep in bed by 7.11 pm. I also accept the evidence of the accused’s partner and think it likely that the eldest child sent the ‘dumb pilot’ anime picture, which occurred after the nominated video call and contradicts the idea that other people in the household were asleep in bed by 7.11 pm.
[27]T128.
There were four video calls made by the complainant after the 7.11 pm video call. There is no evidence from the complainant regarding those four video calls, including to whom she spoke. If she spoke to the accused, I have no evidence about what was said or why she made those calls and spoke to him following what she considered to be an inappropriate video call with him. If she spoke to someone other than the accused, that also tends to contradict her evidence that she believed the accused told her the others were in bed asleep.
The complainant’s evidence that the accused sent two inappropriate images and a video during the relevant video call is not supported by the screen shots in exhibit P2. There is no explanation for why they are not in that record of the communications. The prosecutor submitted that the entry of ‘Post Unavailable’ between the 17:58 pm end video call and the 18:10 pm start video call may be a record of those images/video. I do not accept that submission. The complainant’s evidence is that they were sent during the 7.11 pm call, not over an hour earlier. Additionally, the prosecution led no evidence about the entries of ‘Post Unavailable – This post is unavailable because it was deleted’. The only evidence is from the complainant during cross‑examination when she said only the sender can delete.[28] There is no time stamp for the ‘Post Unavailable’ entries. I do not know whether the position of the entry in the record is the time when the post was posted but then deleted or whether it is when the post was deleted (but sent earlier). The prosecution did not lead any evidence about the provenance of exhibit P2. It was tendered during the complainant’s evidence after she identified the nine pages as photos of her phone showing her conversation with the accused.[29] There was no evidence about who took the photos or when. I have no evidence about when the ‘Post Unavailable’ entries were deleted, namely, whether they were deleted on the evening in question or at a later time but before the photos were taken.
[28]T45.
[29]T15 – 16.
I consider it to be significant that the record of the so-called communications between the complainant and the accused on 29 April 2019 does not support the evidence of the complainant about inappropriate photos and video being sent to her by the accused.
I do consider that the complainant made some sort of complaint at some time to her mother/Mr S following a video call with the accused at some time. Whatever was said by the complainant prompted her mother to contact her sister and then talk with the accused about it.
The evidence about the timing of the complaint is difficult to reconcile. That compounds the uncertainty about the alleged offence having been committed during the 7.11 pm video call on 29 April 2019.
The mother recalled that the complaint was made when they lived at her house in the Riverland, which was after they lived with Mr S and, in turn, after they lived with the accused’s family. In cross‑examination, she said she did not recall it being at Mr S’s house or him being there at the time of the complaint.[30]
[30] T76.
Mr S recalled the complaint being made at his house in the Riverland, but in 2018, not in 2019. He said the family did not live with him in 2019 or 2020.
The accused’s partner gave evidence that her discussion with the complainant’s mother on this topic (which must have followed a complaint) was in about May 2019. Her evidence is more consistent with the timing of the alleged offence, but Mr S was also compelling in his evidence that the family did not live with him in 2019 or 2020.
On the complainant’s evidence, the context of the offending video call is that she was in her bedroom when they lived at Mr S’s house and then went straight out after the call to complain to her mother in the presence of Mr S.
The prosecution did not tender any records (such as school records) which may have helped to identify the timing of when the family moved to and from the various addresses. The mother offered to produce a copy of her lease agreement[31], but it was not tendered.
[31]T79.
The mother also gave evidence that she did not know if the complainant was specific about when the offence had happened ‘but it had been recent to when she told me and like the other stuff, like, that she had been keeping to herself for probably 12 months or so’. There was no evidence from the complainant about ‘other stuff’ and I have disregarded that part of the evidence. She did say that she could not remember properly whether the complainant said it happened, for example, an hour ago or a day ago.[32] Overall, the mother’s evidence does not support the complainant’s evidence of a spontaneous complaint only moments after the video call when they were living at Mr S’s house.
[32]T71.
There is also some uncertainty regarding the content of the complaint. At the commencement of her evidence, the complainant’s mother said the complainant told her that the accused ‘had been requesting to see her nipples via that Facebook Messenger’.[33] She was then asked whether the complainant told her whether he was requesting to see them via a photo or a video call. She answered, ‘I can’t recall specifically, I assumed photos, but since she has corrected me but at the time I thought it was photos that she was meaning’. She gave evidence that after she was told ‘we had a couple of conversations about it’.[34]
[33]T69.
[34]T69.
Mr S gave evidence that the complainant said the accused had requested that ‘she show him her tits and push them together’.[35] He gave evidence that at the time he made his statement in December 2021, he was not sure whether she said it was via text or a video call but ‘having thought back, I’m certain it was a video call’.[36]
[35]T88.
[36]T90.
The evidence of an initial complaint is not admissible for the truth of what was said. It may be used as evidence of consistency of conduct on the part of the complainant which is relevant to the assessment of her credibility. On the complainant’s evidence, the complaint is referable to the charged offence. The inconsistencies between the complainant’s evidence and the evidence of her mother and Mr S about the timing and content of the complaint, however, detract from her credibility to some degree but more significantly, the evidence as a whole compounds my uncertainty about the timing and circumstances of this alleged offence.
The complainant’s mother gave evidence in cross‑examination that the complainant showed her photos/images that had been purportedly sent to her by the accused. Her mother described them as ‘a bit inappropriate’.[37] She agreed that her evidence was the first time she had mentioned it but said that was because it was the first time she had been asked.[38] In re‑examination, she said she thought there were some links as well but ‘I’m trying to be as factual as I can, but I just don’t want to, like, put that was a back step’.[39]
[37]T72 – 73.
[38]T74.
[39]T85.
During cross‑examination and then re-examination, the complainant’s mother made some remarks about the sexual misbehaviour of the accused generally.[40] I have disregarded those remarks other than for the purpose of forming an impression that the complainant’s mother was determined not to assist the defence case. On the one hand, that is understandable because she is the mother of the complainant who has complained that the accused committed sexual crimes against her. On the other hand, the repetitive and unrestrained nature of the remarks made me cautious about her evidence because of her display of partiality.
[40]T70, 71, 79, 82, 85 – 86.
I am unable to find that the accused made an admission to this offending on the occasion when the complainant’s mother spoke to the accused and his partner. It is not clear what was said by the mother to the accused on that occasion. In examination‑in‑chief, the mother was asked whether she had a conversation with them ‘about what [the complainant] had told you’[41]. She said she did but gave no evidence about what she did in fact say to the accused. That is particularly significant because of her evidence that she had ‘a couple of conversations’ with the complainant about it.[42] The accused denied the occurrence of any such conversation. That denial was contradicted by his partner whose evidence I accept. I find that there was a conversation, but the terms of it are uncertain.
[41]T69.
[42]T69.
The totality of the evidence regarding count 2 leaves me with significant doubt that the screen shots in exhibit P2 on 29 April 2019 do in fact represent an occasion of an inappropriate video call between the complainant and the accused. The prosecution charged and opened on the date of this offence as being 29 April 2019. The whole focus of the alleged offence was a video call identified by the complainant in exhibit P2. On the evidence, there is no basis for a finding that the offence was committed during a video call at some other time. Additionally, it would be unfair to the defence to shift the prosecution case to ‘some other time’.
I am left thinking that there may have been an inappropriate video call between the accused and the complainant at some stage, but I am left wondering about the nature and content of it. I find that the prosecution has not proved this offence to the standard of beyond reasonable doubt.
Count 1
The complainant’s evidence was that count 1 happened in 2020 when her family was living with the accused’s family the second time. The accused gave evidence that the complainant’s family lived with them sometime around August 2020 and maybe a time before then. His partner gave evidence that the family lived with them from the end of 2019 to early 2020. She did not give evidence about a second time. The complainant’s mother gave evidence that they stayed with the accused’s family one time.
No evidence was led from the prosecution about the enrolment of the complainant at different primary schools, the date when the accused was arrested or the date when his home was searched. That evidence may have assisted with the conflicts in the evidence about this occasion and generally. The prosecutor opened on the basis that a report was made to police at Barmera in July 2020, that the complainant took part in a prescribed interview on 30 July 2020 and that the accused was arrested on 15 December 2020. No evidence was led on any of those matters. The opening address is not evidence.
On the totality of the evidence, I am not sure that there was a ‘second’ occasion when the complainant’s family stayed with the accused’s family. That leaves me with some doubt about the reliability of the complainant’s account.
I find that there was opportunity for the accused to commit this offence during a period when the complainant’s family lived with the accused’s family. The complainant, the accused and the accused’s partner gave evidence that the complainant did not always attend school. I think the opportunities were limited because I accept the evidence of the accused’s partner that most of the time, the complainant would go out with her.
An integral part of the complainant’s evidence about this occasion was that there were a couple of hard drives at the house. She and the accused were picking a movie to watch from a hard drive.
During the examination‑in‑chief of the accused, he was asked about the police attending at his home and seizing a hard drive. He said the police seized only one hard drive, it was brand new and had never been opened. There were no other hard drives at the premises at that time.

The accused’s partner gave evidence that they had one brand new hard drive in the box during the period 2019 to 2020. She had rented it, but it had never been used. There was never a hard drive attached to the TV in the lounge room. I have no reason to doubt her evidence on this topic.
There was no evidence led from the prosecution about when the accused was arrested, nor whether or when the house was searched. The prosecutor opened on some of those matters[43] but no evidence was led to prove them. In opening, the prosecutor stated that the investigating officer, Detective Munn, was to be a witness but she was not then called.
[43]T6.
The uncertainty about the existence of a ‘second occasion’ when the complainant’s family stayed with the accused’s family, let alone the time frame of any such occasion, together with the absence of evidence about the date of the search of the house is such that I am unsure about the significance, if any, of the police finding one brand new hard drive at the house.
The evidence of the complaint to the complainant’s mother adds to my doubt about the complainant’s reliability. She gave evidence that she complained to her mother about a year later when they were at Mr S’s house. Mr S gave evidence (in 2022) that he had no contact with the complainant’s mother over the past three years.[44] I have no reason to doubt that aspect of his evidence.
[44]T91 – 92.
Further, the evidence of the complainant and her mother were markedly different in terms of the circumstances in which the complaint was made.
I have some doubt about the credibility of the complainant regarding this offence but more doubt about her reliability. The prosecution has not proved this offence to the standard of beyond reasonable doubt.
Verdicts
I find the accused not guilty of both counts.