R v BC - [2024] SADC 73

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BC
Criminal Trial by Judge Alone
[2024] SADC 73
Reasons for the Verdicts of his Honour Judge Handshin
24 June 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is charged with four counts of unlawful sexual intercourse. The complainants, ES and DO, were 14 years old at the time of the alleged offending and were friends with each other. ES knew the accused through a suburban football club. DO met the accused for the first time on the occasion the subject of counts 2, 3 and 4. The charges related to two discrete episodes of offending: one said to involve sexual activity with ES and the accused and the other said to involve sexual activity between ES, DO and the accused at the accused’s house. On the morning after the second episode of alleged offending, and in the days that followed, the complainants had detailed discussions with each other about the events in question. According to ES, the complainants also had further contact with the accused later on the day following the second episode and initially agreed to again stay at his house, before deciding against that course. A week later, the complainants returned to the accused’s house and DO took a recording of them behaving in a frivolous and jovial manner in the accused’s bedroom. The accused gave evidence on oath denying the commission of the charged acts.
Held: The complainants presented as generally credible witnesses. Although collusion and contamination could be excluded as possible explanations for their allegations, there were various inconsistencies in and conflicts between their accounts which reflected on the reliability of their evidence in material respects. The accused also presented, in various respects, as a credible witness, although aspects of his evidence were also troubling. The accused remained steadfast in his denials of the offending and his denials were not substantially undermined by cross examination. In circumstances where the evidence of ES and DO on the one hand and the accused on the other appeared in important respects to be credible, yet as to the charged acts mutually exclusive, it was not possible to determine where the truth lay. Accordingly, the accused is not guilty of all charges.
Verdicts: Not guilty.
Criminal Law Consolidation Act 1935 (SA) ss 49(1), 49(3) and 49(7); Evidence Act 1929 (SA) ss 13BA(3), 13BA(6), 34CB, 34L, 34M and 34P(2)(b), referred to.
R v Dookheea (2017) 262 CLR 402; De Silva v The Queen (2019) 268 CLR 57; (2019) 94 ALJR 100; R v Alwazan [2016] SASCFC 155; Robinson v The Queen (No 2) (1991) 180 CLR 531; Stafford v The Queen (1993) 67 ALJR 510; Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257; Liberato v The Queen (1985) 159 CLR 507; R v B, DWL; R v B, CG (2019) 134 SASR 28; [2019] SASCFC 101; Gately v The Queen (2007) 232 CLR 208; Kirkland v The Queen [2021] SASCA 14; JGS v The Queen [2020] SASCFC 48; R v T, WA (2014) 118 SASR 382; R v R, PA [2019] SASCFC 19; Hughes v The Queen (2017) 263 CLR 338; TL v The King [2022] HCA 35; The Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15; JS v The Queen [2022] NSWCCA 145; Pell v The Queen (2020) 268 CLR 123; DES v The Queen [2020] SASCFC 32, considered.

R v BC
[2024] SADC 73
Criminal Jurisdiction

The accused is charged on Information with four counts of unlawful sexual intercourse against two complainants, who I will refer to as ES and DO. At the time of the alleged offending in mid to late 2020, ES and DO were 14 years old and were friends with each other having attended the same primary school and having continued to socialise with each other whilst attending different high schools.
ES knew the accused through a suburban football club which I will refer to as ‘the Club’.
DO did not know the accused until the night of the alleged commission of counts 2-4.
The charges arise out of two discrete episodes allegedly involving sexual activity between ES and the accused on one occasion and ES, DO and the accused on another.
The accused elected to be tried by a Judge sitting without a jury. He pleaded not guilty to all charges and gave evidence denying the commission of the offences. I now publish my reasons for the verdicts I deliver.
The charges and overview of the prosecution case
The charges are particularised as follows:
First Count
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[BC] between the 1^st day of July 2020 and the 8^th day of November 2020 at Hope Valley, had sexual intercourse with [ES], a person under the age of 17 years, by inserting his penis into her vagina.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
[BC] on the 8^th day of November 2020 at Modbury Heights, had sexual intercourse with [ES], a person under the age of 17 years, by causing her to perform an act of fellatio upon him.
Third Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
[BC] on the 8^th day of November 2020 at Modbury Heights, had sexual intercourse with [ES], a person under the age of 17 years, by inserting his penis into her vagina.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
[BC] on the 8^th day of November 2020 at Modbury Heights, had sexual intercourse with [DO], a person under the age of 17 years, by inserting his penis into her vagina.
The prosecution case as to count 1 is that sometime between July 2020 and the end of the 2020 club football season – which was attenuated because of the COVID pandemic - and by pre-arrangement, the accused picked ES up after she left the Club. The accused and ES drove to a secluded spot in or around Hope Valley and engaged in penile vaginal sexual intercourse (count 1) in the accused’s car.
The second episode of alleged offending, which gives rise to counts 2-4, occurred sometime later, on 8 November 2020. In the early hours of that morning, ES contacted the accused via mobile phone asking if he could pick her up. ES was, at the time, in the company of DO and some other males in the Salisbury area and told the accused that she had no way to get home.
The prosecution case is that the accused collected ES and DO and drove them to his house at Para Hills. It is alleged that in his bedroom, the accused essentially propositioned ES and DO to engage in sex with him. The prosecution case is that ES performed oral sex on the accused (count 2) and then engaged in penile vaginal sex with him (count 3). Thereafter, ES went to sleep and it is alleged that the accused very briefly engaged in penile vaginal sex with DO (count 4).
The following morning, the accused drove ES and DO back to ES’ house where ES and DO that day and/or over the ensuing days discussed what had occurred on 8 November. DO, in particular, told ES that the accused had tried to have sex with her when ES was asleep.
Although the chronology is somewhat imprecise, it would seem that at some point thereafter, ES’ mother, MZ, was made aware of the allegations against the accused. Between Christmas and New Year’s Eve 2020, MZ made a report to the police. At around the same time, the accused, it seems, was subjected to an assault that, on the evidence, MZ may have played some role in.
On New Year’s Eve 2020, ES spoke with the accused. The accused told ES that he had been assaulted by her mother, and there was some discussion about the allegations. The prosecution did not suggest that anything the accused said during that call was evidence of a consciousness of guilt.
On 21 January 2021, the investigating officer, Detective Amanda Casey, was assigned to conduct an investigation into the allegations against the accused.
On 9 February 2021, Detective Casey interviewed DO. At the conclusion of the interview, Detective Casey cautioned DO about disclosing the details of what they had discussed to anyone else given, as Detective Casey said, she still needed to speak with ES about the events under investigation.
It seems that both before and after 9 February 2021, Detective Casey made attempts to organise for ES to attend a police station for the purpose of participating in a prescribed interview. ES missed a number of appointments before finally attending for an interview on 17 March 2021. A recording of ES’ interview with Detective Casey was put before me as ES’ evidence in chief.
The prosecution called ES, DO, MZ and Detective Casey as part of its case.
The accused gave evidence in his defence denying that any sexual activity had occurred as between him, ES and / or DO.
Legal directions
Before turning to a review of the evidence and explanation of my findings I remind myself of some fundamental matters.
The prosecution bears the onus of proving the guilt of the accused. The standard of proof is beyond reasonable doubt. The accused is not required to prove anything. He is presumed innocent of the charges unless and until the prosecution proves each element of the offences charged beyond reasonable doubt. In this respect, I keep in mind the comments of the High Court in R v Dookheea (2017) 262 CLR 402 at [41] concerning the standard of proof:
…being satisfied of guilt beyond reasonable doubt does not simply mean concluding that the accused may have committed the offence charged or even that it is more likely than not that the accused committed the offence charged. What is required is a much higher standard of satisfaction, the highest known to the law: proof beyond reasonable doubt.
As the finder of fact, it is necessary for me to make an assessment of the truthfulness and reliability of the witnesses who gave evidence. It is of course my prerogative to accept or reject all or parts of a witness’ evidence.
As the accused gave sworn evidence denying the allegations, I could only find him guilty if I reject his denials as not reasonably possibly true and I am satisfied beyond reasonable doubt of his guilt on the prosecution evidence. It is not necessary for me to believe the accused’s evidence for it to give rise to a doubt.[1]
[1] De Silva v The Queen (2019) 268 CLR 57; (2019) 94 ALJR 100, [10]-[11]; R v Alwazan [2016] SASCFC 155, [3].
I am to assess the evidence of the accused in the same way as I assess the evidence of all other witnesses.[2] I give the accused credit for taking a course which he was not obliged to.
[2] Robinson v The Queen (No 2) (1991) 180 CLR 531, 535-536; Stafford v The Queen (1993) 67 ALJR 510; Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257.
The question for me is not whether I prefer the evidence of the complainants to that of the accused.[3] Nor can I resolve the issues in dispute by making a choice as between the conflicting bodies of evidence.[4] Even if I were to prefer the evidence of the complainants to that of the accused, that would not be determinative of the accused’s guilt. The accused may be found guilty if, and only if, I am satisfied beyond reasonable doubt that the prosecution have proved each and every element of the offences charged.
[3] Liberato v The Queen (1985) 159 CLR 507, 515.
[4] De Silva v The Queen (2019) 268 CLR 57; (2019) 94 ALJR 100, [10]-[11].
Equally, if, having considered all of the evidence, I am unsure where the truth lies, my verdicts must be not guilty.
I must give each of the four charges the accused faces separate consideration by reference only to the evidence admissible in support of a particular charge. The charges do not rise or fall together. My verdict in relation to any one charge cannot dictate my verdict in relation to the other charges.
In considering the evidence and whether I am satisfied to the criminal standard of the elements of the offences, I have brought an open and unprejudiced mind to bear. I remind myself of the importance of making a decision without sympathy, prejudice or fear.
Elements
The elements of the four counts of unlawful sexual intercourse which must be proved by the prosecution are as follows:
1. The accused had sexual intercourse with ES and DO. Sexual intercourse is defined to include fellatio (count 2) and penetration of the labia majora by any part of the body of another person (counts 1, 3 and 4).
2. ES and DO were under 17 years old at the time the accused had sexual intercourse with them.
Consent is no defence to a charge of unlawful sexual intercourse.[5]
[5] Criminal Law Consolidation Act 1935 (SA), s 49(7).
Evidence of DO
DO was 17 at the time she gave evidence and 14 at the time of the incident alleged to have taken place on 8 November 2020.
DO knew ES as they attended primary school together and although they went to separate high schools, at the time of the alleged offending they remained friends with each other and had contact via social media and on weekends. DO would occasionally stay at ES’ house on weekends and vice versa. DO said that her friendship with ES essentially came to an end around September 2022.
In cross examination, DO said that she and ES had been good friends even after they began attending different high schools. She said sometimes they took drugs such as MDMA together. DO said she had done MDMA with ES ‘once or twice’ and had consumed MDMA with other friends.
7-8 November 2020
DO gave evidence that on 7 November 2020, she had been out with ES and a number of other friends ‘driving around’. At around or sometime after midnight, ES organised for the accused, who DO did not then know, to pick them up from nearby to the Salisbury Train Station.
DO gave evidence that the accused drove them to what she came to understand was the accused’s house. Upon arriving, the accused showed ES and DO to his bedroom.
As there was no dispute that ES and DO were at the accused’s house in the early hours of 8 November 2020, I do not propose to set out the detail of the evidence given by DO about the layout of the house.
DO said that after being shown to the accused’s bedroom, she and ES sat on the accused’s bed. The accused told the girls to be quiet and suggested they watch a movie called Magic Mike. The accused then positioned himself between ES and DO on the bed and put his arms around their shoulders as they sat three abreast on the bed. DO said the accused then asked the complainants if they had ‘daddy issues’; if they had ever had a ‘threesome’ before and if they wanted to ‘try one’. DO awkwardly responded ‘no’. She said the accused kept asking ‘the same kind of questions’ before turning around to face them and asking ‘So who’s going to fuck me first?’
The accused told the complainants to remove their clothing and they eventually did so, leaving their under garments in place. DO described feeling ‘really scared’ throughout this interaction and said she was ‘kind of just listening to what he told me’.
DO said that ES, in apparent reply to the accused’s question, said ‘I’ll do it’. DO told ES ‘you don’t have to do this, like you don’t have to do this’ but ES got on top of the accused and engaged in penile vaginal sexual intercourse with him (count 3).
According to DO, ES also performed oral sex on the accused at some point (count 2). DO said that when this was occurring, the accused was trying to get DO involved, explaining that he was ‘kissing me with his tongue and he was trying to finger my vagina at the same time’ (uncharged). DO said that she was endeavouring to clench her legs so that the accused could not ‘fully’ penetrate her vagina.
Similarly, when ES was having sex with the accused, he tried to involve DO by kissing her and trying to digitally penetrate her.
DO said that after a period of time of ES having sex with the accused whilst sat atop him, they changed position and the accused had sex with ES from behind her. DO thought the accused ejaculated having regard to the sounds he made and his face.
DO said that the accused then left the bedroom for five to 10 minutes, at which point she told ES not to leave her because she was concerned the accused was going to return to the bedroom and want to have sex with her. ES then got on to the floor in the bedroom and, according to DO, went to sleep.
When the accused returned to the bedroom, he sat on the bed in the same position he had been previously. DO said she laid down on the bed facing away from the accused who began cuddling her from behind. DO said she felt the accused’s penis become erect and he attempted to penetrate her vagina with his penis. DO explained (count 4):
AYeah, after he tried, yeah, he was able to put it in but he didn't have it in for long as I felt it, as I felt his penis inside of my vagina, inside my vagina, I - my body kind of freezed up and I freaked out and I said 'Please, please, please stop' and he took it out and he stopped but he did put it inside of me.
QYou said your body freaked out.
AYeah, it freezed up.
QWhat did your body do, what did you do when you say you freaked out.
AKind of like just - I just was like frozen, then I just like tried to like move myself forward so like as best as I could move like my torso kind of forward so his penis would come out and yeah, then I just moved and I said 'Please stop', like I freaked out, I couldn't help but say like 'Stop'.
QDid he stop.
AYeah, after, after I freaked out, he did stop but the whole time when he was trying to put it in me, he wasn't stopping, he was doing that, he was trying to do it for a while and eventually he fully like he got it and then yeah, then I freaked out, then he did stop and he didn't try again after that.
QWhat did you do after he stopped.
AI just kind of laid there, then he was cuddling me and, yeah, that's it.
QAnd did he say anything after that.
AI can't remember if he said anything.
QDid you say anything to him.
AI don't think I would have said anything, after that I was, I was kind of in disbelief and I was feeling really scared and just playing like the events back in my mind as to what just happened and trying to like understand like what had just happened but, yeah.
QIt might be a silly question but did you go to sleep that night.
ANo, I didn't.
As it became light outside, DO thought ES got up and told her that they needed to get back to ES’ house. As they were leaving the accused’s bedroom, DO said she took a photograph of the accused’s leg and the end of the bed using her mobile phone. She said she did this because she knew at the time that what had happened the night before was ‘wrong’ and that she would need ‘proof that I was there’, so she quickly took a photograph of the accused’s leg.
DO said that the accused then dropped her and ES at a park near ES’ house. After the accused had dropped the complainants off, DO said they looked at each other ‘and we just “what the fuck was that …what happened?”’ DO said she could not remember saying anything else to ES at that time. However, DO said that she eventually had a detailed discussion with ES about what happened. She gave the following evidence about her discussions with ES:
Q.    At some point have you had a detailed discussion with [ES].
A.    Yes.
Q.    When was that.
A.I can't remember exactly when but we - me and her had bits and pieces. We talked about bits and pieces of it and then eventually we did have a detailed discussion as to what happened but it has been hard for me and her to speak about it with each other because obviously it is like a very uncomfortable position for us to be in as we were both 14 and it was hard for us to talk about.
Q.    What have you told [ES] about what happened when she was asleep.
A.    She knows exactly what I have told you today, I've told her the same thing.
Q.    When did you tell her that.
A.    I can't remember.
HIS HONOUR
Q.I appreciate it is sometimes difficult to recall the specific words that you have used when you have told someone something but when you say that [DO] knows what happened – [ES] knows what happened when she was asleep. Can you help me with what sort of words you used to explain to her what went on.
A.I would have just - I can't remember the specific words that I used but we have had conversations about what has happened, yes.
XN
Q.I might be a broken record in asking when. How long after the event did you have those conversations.
A.Well, me and her remained friends for, like, a while after it happened. So, we did talk about it sometimes, yeah. I can't give you exact dates and times of when we did have these discussions.

DO was asked whether ES told her anything about the events the subject of the charges. She gave the following evidence:
Q.    What about her, did she tell you anything.
A.She disclosed to me that prior to the time that me and her went to [BC’s] house she had had sex with him prior to that and I didn't know that going into his house. I found that out afterwards.
Q.    How long afterwards.
A.    I can't give you that but it was a little - it was a little while after that I found out.
Q.    When you say 'a little while', are we talking -
A.    May be like a few months.
It was not suggested by the prosecution that this disclosure by ES constituted the initial complaint of count 1 within the meaning of s 34M of the Evidence Act 1929 (SA). Rather, the evidence was led on the basis the fact and detail of a conversation about what is said to be count 1 was relevant to questions of collusion or contamination. As will be seen, ES gave evidence that she disclosed the incident the subject of count 1 to DO on the morning of the sleepover, not some months later.
DO said that her friendship with ES came to an end around September 2022. She was asked about discussions she had with ES concerning the events of 8 November 2020 prior to that time:
Q. In that time how often had the two of you spoken about this incident.
A.I mean, every now and then. It wasn't - like we didn't really bring it up that much. Sometimes, sometimes we would speak about it.
Q.When you did speak about it, did you go into any detail about what happened or just about the incident in general.
A.We just wanted to give each other support as we both were there with each other and, yeah, it was normal as friends just talking about it trying to, you know.
Q. Was there any, that is did you discuss any of the actual detail of what had occurred.
A.Some, some detail but it wasn't, I guess, like fully like – may-be once or twice we did discuss like the detail but it was more just like just trying to see if we were okay and just saying like 'Yeah, fuck that'.
Subsequent attendance
DO said that a week or so after the events of 8 November 2020, she and ES returned to the accused’s house. Whilst there, DO recorded footage of ES doing a back flip on the accused’s bed.
The prosecution tendered a recording and still image of the photograph taken by DO (P5) on the morning of 8 November 2020 as well as a recording of the video made by DO a week or so after those events, when she and ES returned to the accused’s premises (P2). The form in which the photograph and the footage was put before me was explained by the subsequent evidence of Detective Casey, who took a recording of the relevant clips and image from DO’s phone.[6]
[6] T152-153.
The recording is important on the defence case because it shows both ES and DO in apparently high and frivolous spirits and essentially playing around in the accused’s room just a few days after they say the accused engaged in unlawful sexual activity with them, which the defence contend is fundamentally incompatible with their evidence about what happened on 8 November 2020.
Cross examination
In cross examination, DO denied consuming alcohol or taking MDMA with ES on the night of 7-8 November 2020 and said she did not see ES consume MDMA that night.
DO said she could not remember the accused calling ES’ mother and asking her for permission to take both girls back to his house.
She agreed that when she participated in an interview with a police officer (Detective Casey) about the events of that night she did not mention being driven around in a car by other males. It was put to DO that this was a detail she had made up since speaking with the police; a suggestion that DO denied.
As to the events at the accused’s house, DO denied that the accused retired to the lounge room to sleep after putting a movie on for DO and ES.
DO confirmed in cross examination that she was ‘scared’ and ‘disgusted’ by what happened at the accused’s house and was in ‘disbelief’ until she started processing the events a while after. DO said further that she was scared of the accused but despite this, she kept in contact with him via Snapchat in the period after the alleged offending until she decided to ‘…just completely cut off the contact and report it to the police’.
DO said she had understood that there was another male at the accused’s house following their arrival on 8 November 2020. DO understood the other male to be in a bedroom next to the accused’s bedroom.
As to the sexual activity, it was put to DO that when she spoke with the police she did not mention ES and the accused having sex ‘doggie-style’. DO said she could not remember exactly what she had said to the police but maintained sex of that description occurred. It was subsequently agreed between the parties that when interviewed by Detective Casey, DO did not describe ES and the accused in a ‘doggie-style’ position.[7]
[7] See P7, [2.2].
With reference to DO’s evidence that the accused had ‘tried’ to penetrate her vagina digitally whilst engaging in sexual activity with ES, DO confirmed that the accused put his finger inside her vagina ‘a little’. It was put to DO that she told Detective Casey that ‘[The accused] was trying to finger me but he couldn’t though because I was moving in a way that he couldn’t’. DO said she could not remember making that comment but confirmed the accused was ‘trying his best to finger me’. It was subsequently agreed that DO had in fact told Detective Casey that the accused ‘…was trying to finger me. He couldn’t do it though, because I was, I was like moving so in a way that he couldn’t – because his arm couldn’t reach like that’.[8]
[8] P7, [3.2].
It is apparent from what I have said thus far that the accused is not charged with any offence arising out of an attempt to or actual digital penetration of DO’s vagina or kissing her. The only permissible use of that evidence is to put into context the allegation made by DO that, shortly thereafter, the accused engaged in penile vaginal sex with her. In this sense, evidence that the accused had or tried to digitally penetrate DO and kissed her shows how the series of events leading to the charged act commenced and completes DO’s narrative of the extent to which she had sexual contact with the accused on this occasion. Of course, the evidence is not admissible to show that the accused is a ‘bad person’ or the sort of person likely to commit crime generally or crimes involving sexual acts against a teenage girl and hence the charged acts, and I have not used the evidence for any such purpose.
Returning to DO’s cross examination, it was put to DO that when she spoke with Detective Casey, she did not mention the accused leaving the bedroom after sexual activity with ES. DO said she could not remember whether she had mentioned this detail.
With respect to where ES went to sleep, DO was cross examined about whether she told Detective Casey that ES in fact went to sleep in the bed and not on the floor next to the bed. It was put to DO that she told Detective Casey that ES ‘laid down on the other side, she faced the other way and just went to sleep’. Whilst DO agreed making this comment,[9] she said she probably meant that ES laid down on the floor on the other side of the bed.
[9] See also P7, [3.3].
DO agreed that the following morning the accused dropped the complainants at a place near ES’ house. She agreed that the accused stopped somewhere else on the way but could not remember where.
In relation to DO’s evidence about discussions between her and ES concerning the events at the accused’s house, it was put to DO that she told the police that the first person she spoke to about what had happened with the accused was in fact her mother. DO said she could not remember whether she made such a comment. It later became an agreed fact that DO told Detective Casey that the first person to whom she complained about the accused’s alleged conduct was her mother.[10]
[10] P7, [3.4].
When taken to her subsequent attendance at the accused’s house, DO agreed that she did not feel unsafe.
Past complaint of sexual assault
DO was cross examined about a complaint she had made to the police that she had been forced to have sex with another male multiple times.[11] It was put to DO that every time she found herself in trouble, she would make a complaint (inferentially a false complaint) about something having happened to her. DO said she never wanted to make a complaint about this other person, who was her ex-boyfriend. She explained that they would often argue and police would get called; and that on one occasion police attended her house and asked her if she wanted to take the matter any further, to which she said ‘no’.
[11] As it was not suggested to DO that she had in fact been sexually assaulted by someone else, the cross examination on this topic did not engage s 34L of the Evidence Act 1929 as it did not concern DO’s sexual activities before or after the events the subject of count 4 but only whether a complaint about sexual abuse had been made: R v B, DWL and B, CG [2019] SASCFC 101; (2019) 134 SASR 28, [46]. The import of the cross examination was to suggest that DO was prone to make false complaints of sexual assault in certain circumstances.
It was an agreed fact that in January 2023, police recorded DO stating that on unknown dates from early 2021 until late 2022 a male forced her to have sexual intercourse with him multiple times.[12]
[12] P7, [4].
Accordingly, on the defence case, DO had made two complaints that she had been sexually assaulted by someone other than the accused, which is said to be demonstrative of a tendency on DO’s behalf to manufacture false complaints of sexual assault when she is confronted with trouble or a difficult situation.
Interview with Detective Casey and collusion
DO was asked a number of questions about conversations she had with ES both before and after she was interviewed by Detective Casey. I set out the cross examination on this topic:
Q.After you spoke to that police officer she told you that you couldn't speak to anyone about the details of what you spoke to her about, is that right.
A.    I don't remember but probably, yeah.
Q.At some point after speaking to the police did you tell [ES] that you had spoken to the police.
A.    Yeah.
Q.And did you tell [ES] that the police would like her to provide as much detail as possible about what's said to have happened on that morning.
A.    We didn't really talk about it that much.
Q.Did you tell [ES] that if she spoke to the police that she would have to give a lot of detail to police.
A.    I don't remember any conversations between me and [ES].
Q.When you say you don't remember any conversations between you and [ES], you've remembered at least one that you've talked to us about.
A.Yeah, I know that we have had conversations but I don't remember the details that were said in our conversations.
Q.You agree though at some point you did tell [ES] that whilst she was asleep that he had put his penis in you.
A.    Yeah.
Q.    At some point you also showed [ES] that backflip video, isn't that right.
A.    Yeah. We would have looked at it like after we were there at his house.
Q.    And is it the case that you've encouraged [ES] to go to the police.
A.I never told her to do anything. I said that I'm going there for myself, what happened to me. If she feels comfortable to talk about what happened to her, then she can do that.
Q.    Did you tell [ES] the details of what you told Detective Casey.
A.    What, sorry, what do you mean like?
Q.    Did you speak to [ES] about what you had told police had happened that night.
A.Well, yeah, because it's the situation, yeah, me and [ES] have gone over the situation, so yeah. Maybe not with all of the exact details but yeah, we had an idea of the situation as we spoke about it.
HIS HONOUR
Q.    I think what Ms Luu is asking you is after you spoke to Officer Casey.
A.    Yeah.
Q.    Did you tell [ES] 'This is what I've said to Officer Casey'.
A.    No.
Q.    And then explained it to her.
A.No, I would have just - I would have said to [ES] - I just said like - I just told her - I explained the situation of what happened with us.
Q.    What do you mean by that, sorry.
A.So like - I would have like - like telling like Ms Casey, telling Amanda, like just like the details of what happened, so like how we got picked up by him, how we got to the house, going into the house, what happened inside the bed and then leaving, so all those details along the way.
XXN
Q.When you were speaking to [ES] about the details of what happened, going over your situation with her, I'm talking generally, not just specifically after speaking to Detective Casey.
A.    Yeah.
Q.But when you spoke to [ES] about the situation, was it the case that you were doing so because you wanted [ES] to provide you with support for your allegations.
A.No, I was confident that if I spoke to the police then something would be done about it. I didn't - I was never talking to [ES] about it for support.
Q.Were you hoping that she would come forward to police to support your allegations.
A.If that's what she wanted to do, then yeah. Of course, if she wasn't comfortable talking about it, that - that doesn't matter to me, like as long as I got to say what happened to me, then that's all I cared about.
Evidence of ES
The next prosecution witness was ES. Her evidence was put before me by way of the playing of a prescribed interview with police conducted on 17 March 2021, pursuant to s 13BA of the Evidence Act.[13] ES also gave supplementary evidence in chief before me and was cross examined.
[13] I note that although the interview was tendered as P3 and with the corresponding transcript marked as MFIP3A, I have treated the audio-visual record of the interview as if it were ES’ evidence in chief and, accordingly, I have not reviewed the recording since it was played in court in the course of the prosecution case: Gately v The Queen (2007) 232 CLR 208.
Although a judge sitting without a jury is not required to direct him or herself in accordance with s 13BA(6) of the Evidence Act when evidence is admitted in this form,[14] I have reminded myself that s 13BA(3) of the Evidence Act allows for evidence in this form to be admitted. I have not drawn any inference adverse to the accused from the admission of evidence in this form, nor have I allowed the form of the evidence to influence the weight I give to it.
[14] Kirkland v The Queen [2021] SASCA 14, [55]-[63].
Special arrangements were also put in place for at least a portion of ES’ further evidence. I have not drawn any inference adverse to the accused from the fact that special arrangements were put in place nor have I allowed this to influence the weight I give to her evidence.
ES was 14 years old when she participated in the prescribed interview.
The interview presents in a somewhat fractured or discursive way in various respects. ES had a tendency to commence but not complete sentences and to otherwise change topics or introduce extraneous information in the course of answering questions, in a manner that might be thought generally consistent with her age at the time of the interview.[15] There were, in addition, passages of ES’ interview where I found it difficult to discern whether ES was recounting events that she had observed or experienced or whether she was giving an account of things she had been told.[16] Where it was unclear to me whether ES was speaking to matters about which she had first-hand knowledge, I have erred on the side of caution and not had regard to those portions of the interview.
[15] See, for example, MFIP3A, p 37.47 – p 38.14.
[16] See, for example, MFIP3A, p 13.8-15; p 27.33-39.
I will endeavour to deal with ES’ interview with police and her supplementary oral evidence by reference to discrete topics.
Attention Deficit Hyperactivity Disorder
In her interview with police, ES said that she suffers from ADHD which can affect her memory and cause her to be forgetful.
In cross examination, ES said that her condition makes her ‘more hyper than forgetful. I’m a bit forgetful like from long-term but I can remember what happened and stuff like that’. ES acknowledged the common-sense proposition that the importance of an event to her can influence the extent to which she recalls that event, irrespective of when it occurred.
ES agreed that she told Detective Casey that her memory of what had happened with the accused ‘wasn’t great’, but added ‘Yeah, it wasn’t great but I knew what I was talking about when I said what I said’.
DO
In her supplementary evidence in chief, ES said that she went to primary school with DO. They remained friends when they commenced attending different high schools and would see each other weekly or fortnightly.
In cross examination, ES said that she would spend time with DO on the weekend and they would sleep over at each other’s house. ES denied that she and DO would take drugs together but acknowledged that she smoked marijuana and consumed MDMA in high school.
ES agreed that she would occasionally lie to her mother about where she was.
The accused and drug use
ES said she knew the accused through the Club. She said that she had spent time with the accused at the Club and ‘the Skid / Skids’ which was a place people went to essentially show off their cars and perform driving manoeuvres such as ‘donuts’.
ES said that the accused initially thought she was 15 because she played in the Under 16’s football team but she later had a conversation with him during which it was apparent that he then knew ES was 14.
ES said that she had consumed what she described as MD on occasions when she would see the accused. She explained ‘most of the times we were with [the accused] I was on caps in all honesty I was doing MD, I started doing MD heaps and I admit that. And he used to take me and that to the Skid and we just used to watch the cars go’.
In cross examination, ES said that after she was introduced to the accused by a friend, ‘he used to take us to Skid and that’s when we’d do MD[MA]’. ES said this occurred primarily on Friday or Saturday nights but not necessarily every week. ES acknowledged – as she had said in her prescribed interview – that there was ‘probably’ a period where she took MDMA four weeks in a row.
ES said that the accused did not like her taking MDMA and told her she should stop consuming the drug.
ES said that in 2020, her mother did not have a driver’s licence and if ES needed transport, the accused would pick her up and take her where she needed to go, but not regularly.
ES said that in 2020, she did not get on particularly well with her mother and, as far as ES knew, her mother was unaware she was taking MDMA. She said that her mother and the accused also became friends with each other at some point, but she did not suggest their friendship was a particularly close one.
ES said the accused had a younger brother who was around the same age as ES and who took a liking to her.
ES initially agreed that the accused was something of an ‘older brother’ figure to her who looked out for her and occasionally provided her with transport. ES also suggested that the accused ‘got a bit jealous’ with her when she was in year 9, and she recounted a story of the accused telling her mother of an occasion when ES had a boy at home without her mother’s knowledge. ES denied that she had confused the accused caring for her as a younger sister with jealousy.
Curiously, at the end of her cross examination, ES said that she never saw the accused as an ‘older brother’. In response to a suggestion that ES ‘fancied’ the accused, ES said ‘Yeah, I guess’.
The alleged offending
Count 1
Although detailed discussion about count 1 occurred later in the interview and after ES had described the events said to comprise counts 2 and 3, it is convenient to set out ES’ narrative of count 1 at this point.

ES said that on the occasion the subject of the charge, she had been at the Club and then left to play netball before returning to the Club later the same day. She said she had no internet connection on her phone and her phone was running out of battery so she started to walk home. ES said it was then that the accused asked her if she wanted to go for a drive.
ES gave the following account of count 1, which she said occurred in October or November 2020, ‘a few weeks before’ the events at the accused’s residence:
ACMmm. Ok. Now before all this happened, you mentioned that this has happened just with you and [BC] one time before. So tell me all about that time.
ESSo. So. That was like, that was like consensual. But obviously, like, I’d say it was consensual because I gave consent, but obviously I can’t actually give consent.
…
ACTell me about everything that happened in the car.
ESOk. So. He was like Oh, do you want to, and then I was like, Oh, like I guess. Like. I don’t know, I was awkward. Like we were really awkward. Like. Basically he’s like OK come on and then like put – you know, my top, and then he was like. I like, I get, I got real awkward. Like I got so awkward. And like when he was touching me I was like, I like it like that, you know, like…like…that…kept going like that. And he was like, Oh you alright, and I was like, Oh yeh yeh yeh I’m fine, I’m like Yeh. And then. So. I was on top of him and then he was like moving me, like you know, he kept just like moving. Yep, kept trying to like, kind of like swap positions, and that, kept trying to move and all that, like, I don’t know. It was just. I don’t know.
ACHow was he trying to do that.
ESHuh.
ACHow was he trying to do that.
ESHe was like. He was like. He goes Oh go this way, go this way, like. And then he was trying to like, do different – I don’t know what sex position, try to do different sex positions. And I was like, you know, all awkward and all that. And then, what’s it called. We fucked basically. Like you know. We fucked then. And then…
ACWhere in the car did that happen.
ESIn the back.
ACIn the back.
ESIn the back seat. And then we got out and then we went and we drove around and he dropped me off near the creek near my house. And when I got home and my mum was like Oh, where have you been. And then I said I went and picked up a bag, and then I came home. But that’s not actually what happened. I said I went and picked up a bag and then I came home.
ACHow long before the second time, that you…?...
ESOh see, that was ages before the second time. It was like so long before the second time. I don’t know how long, but it was a few weeks before the second time.
Importantly for reasons that will become apparent, ES said that count 1 occurred on a Saturday, after the accused had played a football game:
AC Did that happen on a week day or a weekend.
ESIt happened on a weekend, on a Sunday…no. Saturday, because there was senior games. Sunday.
ACSo there was senior – so it happened on a Saturday. OK. And what, when you said this was a…?...
ESSaturday around like four, five.
ACMmm.
ESAround like four, five.
ACAnd that was on a Saturday.
ESAnd, yeh…
At the end of her interview, ES told Detective Casey that she did not care if the accused did not ‘get into trouble’ for having sex with her in the car, but wanted him to get in trouble ‘for the other thing he done’.
In cross examination, ES said that count 1 took place on a Saturday, a ‘month or two’ before counts 2-3. She agreed that during her police interview, she had identified the incident as occurring in October / November after looking through her phone. ES said she was not ‘100% sure’ when count 1 allegedly occurred. ES agreed that in 2020 – when count 1 is said to have occurred – the impact of COVID meant that the club football season had been shortened to only nine games. ES acknowledged that the regular season ended in August of 2020 and finals ended in September 2020. When it was put to ES that this meant it could not have been the case that the accused picked her up following a football match held in October or November of 2020, ES said that she ‘must have got the month wrong’.
Returning to the preamble to count 1, ES said she had been watching the seniors play football. She said the accused had played a game and had then gone home before returning to pick her up. ES said she had text message communications with the accused over Snapchat about him picking her up and that she then ‘walked off from the club a different way so no-one would see that it was [the accused] picking me up because that’s what he wanted so no-one at the club knew and when no-one at the club would have been able to see, that’s when I got in the car’.
ES agreed that to access Snapchat via her phone she needed an internet connection, which she said was available to her at the Club. ES agreed that she had told Detective Casey during her interview that she had no internet on this particular day and her phone was ‘dying’. ES agreed further that she did not tell Detective Casey that she used someone else’s internet connection to use Snapchat on this particular day.
ES was then taken to the account she gave in the prescribed interview about how she came to be picked up by the accused. She agreed that she told Detective Casey that the accused was at the Club and asked her if she wanted to go for a drive. ES said ‘Yeah, I agree that’s what I said but I might have messed it up. I don’t know. So he didn’t talk to me in person. It was just over message’.
ES said that when she got home after count 1, she told her mother that she had been to pick up a bag of marijuana, but she denied smoking marijuana or taking MDMA before the events the subject of count 1.
As to the events in the car itself, ES said that the accused probably ejaculated during sex. When asked where the accused ejaculated, ES said ‘I don’t know he probably just pulled out…Maybe on my back, I’m not sure’.
8 November 2020 – counts 2-4
Returning to her prescribed interview, ES said that on one occasion, the accused had picked her and DO up as they could not get home. She said that they went back to the accused’s house and were laying in his bed. She provided what is, on the prosecution case, a summary of counts 2 and 3 in the following terms:
ESSo like, I wouldn’t like never ever expected anything like. You know when he’s weird I used to put a blind eye, like you know, I didn’t think of anything. ‘Cos he’s never weird towards me you know. But. Yeh, and we went back to his. And then we were laying in the bed and then he was like, “Oh like, don’t be frigid”, he’s saying we’re frigid and all that. And then what, I’m like dude, you’re like 25 you know. It’s not being frigid but you’re 25 and we’re 14. That’s not frigid. That’s us not in, being with a paedophile really. And then he was like, taking like, our pants, and then, he like made me suck his… and he was trying to get [DO], like to fuck and all that. And [DO] wouldn’t. And then he was like, he like, put it – stuck it in me. And then after that I like, I got off, like he didn’t finish nothing. I got, you know, I was like “I’m going to bed” and then, when I was asleep, I got told he stuck it in [DO], and [DO] was like, telling him like Nah, like get off, like, you know.
AC Yeh.
ESAnd then the next day we just left and I, I – acted like nothing happened, I just didn’t want to like …
ES confirmed that something had happened between her and the accused ‘once before’, adding ‘But it was like, you know, it wasn’t expected like, to ever happened [sic]. And then, then the [DO] thing, and then it happened again’.
When the interviewer returned to the events of 8 November 2020, ES said that she and DO had been out with friends and had no way to get home so ES asked the accused for a lift. She thought it was around 3am. She said that the accused rang her mum and her mum said ‘Ok, they can sleep at your house’. And he was like, ‘yeh I’ll sleep on the couch and they can sleep in my bed…’
ES added that she and DO had been with ‘Afghan boys’ she knew earlier that night and the accused was ‘getting jealous’ for this reason and because ‘he’s told me he’s loved me before’. ES said that during the car ride to his house, he was asking the girls if they had sex with the Afghan boys. ES said the accused called her a slut.
I pause here to note that DO did not suggest in her evidence that anything resembling these conversations took place during the drive to the accused’s residence.
In cross examination, ES said that she had asked the accused to pick her and DO up earlier this evening but he had said no. She continued to ask him why he could not pick them up. ES added that the accused ‘kept saying he [or his mum] was in hospital this and that and then when my mum found out we were out of the house he told my mum he would pick us up and then called her up and said “they can sleep in my bed and I’ll sleep in the lounge room”’.
ES agreed that she had consumed MDMA on this particular night, but said DO had not as DO did not take drugs. ES was then asked whether DO was aware she had consumed MDMA:
A.I'm pretty sure. I'm not too sure if I told her but, yeah. May be she might have realised but I'm not sure to be honest. She didn't say anything about it.
Q.    You didn't have it in front of her.
A.    No.
Q.    How many did you take that night.
A.    May be like two, I'm not sure. May be one or two.
Q.    What about the boys you were with. Were they on MDMA too.
A.    No, they weren't.
ES said that the accused picked her and DO up from near the Salisbury train tracks at around 1 or 2am. ES said that she did not want to call her mother because her mother had work the next day. ES denied that another reason she did not want to call her mother was because she was on MDMA and did not want her mother to know as much. ES then said that after the accused picked them up, ‘he said to my mum that we can stay there [at his house] if we need because she has got work and he didn’t want it to be a hassle for her’. Curiously, ES then said that her understanding was that her mother in fact contacted the accused after finding out that she and DO were not at home and the accused agreed to pick the girls up. It ultimately became clear as the questioning on this topic progressed that ES was purporting to recount what she claims the accused had told her of a conversation he apparently had with her mother.
ES denied that it was her idea to go back to the accused’s house.
ES said that the accused seemed ‘pissed off’ because she was with the Afghan boys but she did not remember if he called her a ‘slut’.
At the accused’s house
I return now to ES’ interview with police.
After arriving at the accused’s house, ES said that she and DO went to the accused’s bedroom and watched a movie – Magic Mike – put on by DO. She said the accused left the room and then returned, positioning himself between ES and DO.
ES thought that there was another male at the house who she referred to as the ‘tattoo artist’.
ES said that the accused asked why she and DO were ‘so frigid’ and suggested they sleep in their underwear. ES said that she told the accused she would change into football shorts, to which he responded ‘yeh yeh sure’ however when ES did change into football shorts (which she later said were the accused’s football shorts that he had allowed her to wear), the accused told her ‘take the football shorts off’. Under further questioning by Detective Casey, ES confirmed that the accused in fact asked both girls to remove their shorts,[17] to which they responded ‘Nah’ and in that context reference was made to them being ‘frigid’. The accused was touching their legs underneath the blanket and putting his arms around them. The accused kept repeating ‘don’t be frigid’. ES subsequently said that the accused removed both hers and DO’s shorts and they were both left wearing G-string underwear.
[17] ES said that she thought DO had been wearing shorts on this particular night: MFIP3A, p 19.
ES said further that the accused then pulled ‘our undies’ off, which does not accord with DO’s evidence as summarised at [36].
ES said the accused was ‘cuddling or some shit with [DO] or something’ and was saying: ‘come on [ES] he was like join in, or something, let’s do a threesome’. ES continued:
… And then we were like No, and then he was like, Why you guys are so frigid again. Kept saying it. And then that’s when he was like, you know like, grabbing us, like, you know. And then he like put my head, like Come on, do it. And then, he like, Come on join in, and suck my dick, and he pulled my, like put my head like down to his… and like, and I just like, I put like – it was in my mouth, but I took it like out, I was like, you know. And then that’s when. I don’t know what he was doing with [DO]. I don’t know if he was making out with her or what not, I don’t know. But then that’s when he like, he like, like picked me up and put me on him, basically. And then he was like…Umm…I don’t…what he was doing. I don’t know [DO], was either kissing him or he was touching her, I don’t know. It was like one of them. And then I got off and I was like, laying down, and that’s when I fell asleep. And then I don’t remember till I woke up the next morning.
In cross examination, ES said that after arriving at the house, the accused told her and DO to be quiet so his housemate did not know there were other people in the house. She agreed that the accused helped them to put on a movie in his bedroom and that she asked if she could change into some shorts. ES said that the accused lent her a pair of his football shorts and a singlet top.
ES denied that after setting the girls up, the accused left them in his room and went and slept on the sofa in the lounge room. She said rather that the accused positioned himself in between them. ES maintained that the accused asked her to remove her shorts and that he also removed her underwear. She said that the accused used the word frigid and that she did not know whether it was directed at her or DO although she did not think it was directed at her.
Count 2
In elaboration of count 2, ES explained that the accused grabbed her head and moved it towards his penis. ES said that ‘He’s tried to force me to suck his dick…And then I moved my head away from him. And then he, like, lifted me up and made me sit on his dick, and put it inside me…It went in my vagina’.
In the passage I have previously extracted from ES’ interview, it can be seen that she described the accused’s penis being ‘in [her] mouth’.
Count 3
With respect to count 3, ES said:
So he was, so basically when I was on him, and he was going like that, like moving me. Like you know like…like…I don’t know how like… He had hold of me, like, pushing like back and forward like, you know. And then I got off, like, I got off. And then I went and laid down, I was like, I’m going to bed. And fell asleep. But he was like, the whole time when he was like I don’t know what he was trying to do with me, but like, because like, doing – touching [DO] as well. So it’s like two of us at once. He’s doing it to.
ES said that she was ‘practically having sex with [the accused]’ and ‘[DO] was just like right there’ which ES said she thought was ‘extra weird’.
ES did not allege sex with the accused positioned behind her.
The following morning
ES said that the following morning, the accused dropped her and DO at DO’s house having first stopped at his work at Mawson Lakes. ES and DO then returned to ES’ house because they wanted to go out with friends, but ES’ mum would not allow it.
ES told Detective Casey that the accused had further contact with her and DO later that day and invited them to again sleep at his house, which ES said they initially ‘agreed to’ but then ‘were like no’. Although it is a little difficult to follow, ES appears to have suggested to Detective Casey that the accused later collected her and DO from a bus stop near ES’ mother’s house. The accused told ES and DO, effectively, not to tell anyone about him picking them up. There was then a conversation between ES’ mother and the accused about the whereabouts of ES and DO but it is not clear to me whether ES was present for any such conversation.
In cross examination, it was put to ES that there was no sexual activity between her and the accused. ES disagreed. She said further, and in contrast with DO’s evidence, that the accused did not ejaculate during sex with her.
It was put further that there was no sexual activity between the accused and DO, to which ES responded:
A.I don't know. I think he was trying to get with her but she didn't want to. I was already on top of him. Then I went to sleep after.
Q. Did you go to sleep on the bed.
A.Yes, I did, right next to [BC]. He was in the middle and [DO] was on that side (INDICATES).
Q.Is that where you remained until the morning when [BC] offered to take you guys back.
A. Yep.
It will be seen that in the last portion of the extracted answer, ES said that after having sex with the accused, she went to sleep in the bed next to the accused and remained there until the morning. It will be recalled that DO’s evidence was that ES got down on the floor and went to sleep after the accused had sex with her.
ES said that, by reference to photograph 18 of P1, she slept on the left side of the bed (as one looks at the photograph) where a lamp can be seen.
ES said that the accused dropped her and DO back at ES’ house in the morning. She agreed that she told Detective Casey that the accused had dropped them off at DO’s house and explained that she was not sure whose house they were taken to ‘because I know one time he dropped us off at mine. One time he dropped us off at [DO’s]’. ES said she was confused about the dates and ‘what happened which time’. However, ES then agreed that she had asked the accused to drop them off down the road from her mother’s house.
New Year’s Eve
Returning to her interview, ES told Detective Casey that she had contact with the accused on New Year’s Eve 2020 during which the accused told her that he could go to gaol for something that he did not do and essentially implored ES to agree that he had not done anything wrong.
In cross examination, ES confirmed that she spoke with the accused on New Year’s Eve 2020. He told her that he had been assaulted by ES’ mother and other people at her house. I pause here to observe that I have not drawn any inference adverse to the accused from the fact that he was assaulted by a person or persons including or known to ES’ mother. That evidence is only relevant to explain the context in which this telephone call seems to take place.
ES agreed that the accused said to her ‘you know this didn’t happen’. However, she added that the accused asked her to lie for him in this phone call and asked her to ‘delete all the evidence that [DO] had like the screenshots and like all the videos in his house off of her phone…’.
It was not suggested by the prosecution that anything I found the accused to have said during this telephone conversation could yield an inference of a consciousness of guilt on the accused’s part or that the words spoken by the accused included an implied admission. Indeed, the prosecution did not suggest any particular use could or should be made of this evidence other than to aid in my assessment of ES’ evidence, although it is not entirely clear to me how the evidence could be permissibly used in this way other than insofar as it is common ground between ES and the accused that there was a conversation at this time that broadly concerned the allegations now made against the accused. I have not made any other use of the evidence.
The subsequent attendance
ES was shown the photograph and recording that comprise exhibits P2 and P5. ES said that the photograph depicted the accused’s leg and the recording showed ES wearing the accused’s football shorts and basketball top and doing a back flip on the accused’s bed.

In cross examination, ES said she thought that the recording depicted the occasion on which counts 2 to 4 occurred but was confused. ES said she had planned on taking the accused’s basketball top – which she had put on – without his knowledge.
Relationship between ES and DO after the alleged offending
ES said that after the alleged events of 8 November 2020, she and DO ‘stopped being friends for a bit when it all came out about what happened and then we started being like friends again. Then we talked about it a bit but not much.’
ES thought the disruption of the friendship occurred when ES moved to her father’s house around a week after the events the subject of the trial. The friendship resumed in 2021. ES was unsure whether the friendship had resumed by the time of her interview with police, but thought it may have.
Discussions with DO about the accused and police interview
In her evidence in chief, ES said that she told DO she had ‘got with [the accused]’ the day after she and DO slept at the accused’s house.
ES said further that DO told her what had happened at the accused’s house after ES had gone to sleep. ES said this conversation took place at a creek near ES’ house. They also spoke about what had happened when they were both awake. ES said they discussed ‘everything’ in the day or two after the alleged incident.
ES said they did not speak about going to the police because ES did not want to tell anyone what had happened. DO told ES that she would ‘be there for me if I did decide to go to the police but she didn’t tell me anything about going to, yeah’.
When ES moved to her father’s, she and DO did not talk about the incident. DO told ES’ mother about what had happened and, to ES’ mind, wanted to distance herself from ES.
ES told Detective Casey that she was scared of participating in an interview ‘cos [DO] told me you gotta give detail for everything. And I was like, I don’t know every detail for everything like, I forget all the details. I don’t remember. All I remember is like, the main part that happened in that one time’.
In cross examination, ES said that she and DO were not speaking when DO made a report to the police about the events of 8 November. ES denied that DO told her she had made a report to the police. Rather, ES said that her mother had told her about a report being made.
ES denied that DO provided her with the details of what she told police, and ES said she could not remember telling Detective Casey that DO had told her the police wanted detail. She denied that DO had told her the police would want a lot of detail from her.
The prosecution did not suggest that there was any admissible evidence of an initial complaint made by ES in respect of counts 1, 2 or 3. The evidence of discussions between ES and DO was said to be relevant only to questions of contamination and collusion.
The accused’s disclosure of ES’ use of ecstasy
Towards the end of her interview, ES explained to Detective Casey that the accused had told her mother about ES taking ‘MD one time’, which prompted her to warn him that ‘I wouldn’t go start telling my mum stuff, I’ve got something I can tell about you…’. ES went on:
And I was with [DO] that time, ‘cos I was bawling my eyes out, I said, if I was you I wouldn’t go telling my mum stuff, ‘cos remember you, you did what, you did fuck, like you did have sex with me. And the he was like, he was like, he was like, he goes like What! And he was like I’m sorry, like, I didn’t mean to like, I was just looking out for you and all that. Like. And [DO] was like, even like yeh, like, but since ever happened with [DO], even says [DO]’s like, if you ever want to go to police just let me know, like I’ll always go, like friends. And she like, but...that’s what, I would’ve gone at the start but I was always scared I was gonna get in trouble. So that’s why I didn’t, like ever come.
In cross examination, ES said that it was possible that the accused told her mother about her consumption of MDMA but she was unsure. Later in cross examination, ES said she believed that the accused was the person who disclosed to her mother her use of MDMA. ES said she was ‘pissed off’ about the accused telling her mother ‘because he wouldn’t want me telling her what actually happened between me and him’.
ES denied that she had manufactured lies against the accused because she was unhappy that he had ‘dobbed’ about her MDMA use to her mother or sneaking a boy into the house or to support DO’s complaint:
Q.    What happened was you didn't like it when he dobbed on you to your mum.
A.    Dobbed on me about what?
Q.    Your MDMA, for example.
A.    That was after me and him had already gotten together so.
Q.You didn't like it that he dobbed on your mum about sneaking [DO]’s boyfriend into the house.
A.    No.
Q.    So when that happened, you then made the complaint to police.
A.    No, that happened after.
Q.    You went to the police in March of 2021.
A.Yes, so that was much after he had dobbed on me to my mum about a boy in my house. That wasn't there for me so I didn't care.
Q.We know at some point you accept that [BC] told your mum about you using MDMA.
A.    Yes.
Q.    Clearly, you weren't happy about that.
A.    It is what it is. She would have found out eventually.
Q.    Did you and your mum get into a bit of an argument about that.
A.Not really a big - not really. She just told me to stop using it. It's not good for you and this and that but we didn't get into a fight about it, a big fight.
Q.You learnt about [DO] making a complaint to police about [BC] and you decided to go to the police to support your friend with lies.
A.    No, that's not -
Q.And the incident about the car, the four-wheel drive and picking you up, what I'm saying to you is that also is a lie.
A.    No.
Evidence of MZ
MZ, the mother of ES, gave evidence as part of the prosecution case.
MZ said she met the accused through the Club in or around 2018/2019. Initially, MZ only had contact with the accused in the context of the Club but that changed when, from time to time he picked ES up from places and dropped her home.
MZ said that on one occasion, she went to ‘the Skids’ with the accused, ES and one of ES’ friends.
MZ said that in late December 2020, between Christmas and New Year’s Eve, she was contacted by DO and given information that caused her to go to the police. MZ told ES that she was going to the police.
In cross examination, MZ said that the accused would occasionally drive ES around during a period when MZ was ‘going through a little bit of trouble with my daughter…and occasionally…I didn’t know where she was and then I would find out after’. MZ said ES often lied to her about where she was during this period in 2020.
MZ said she found out about ES taking MDMA from someone other than the accused. Whilst MZ’s evidence on this topic conflicts with ES’ belief that it was the accused who told her mother about her use of MDMA – and, as will be seen, the accused’s evidence – the primary relevance of this aspect of the evidence is ES’ belief that it was the accused who made the disclosure.
Evidence of Detective Casey
Detective Casey gave evidence that she interviewed DO on 9 February 2021 and ES on 17 March 2021. The accused was arrested on 22 April 2021.
In cross examination, Detective Casey said that after the photograph and recording on DO’s phone were documented, the phone itself was submitted for forensic extraction. Detective Casey then reviewed the extracted material and identified any items of relevance. Detective Casey said that the ‘full extracted data’ has since been deleted such that police only had access to any material that Detective Casey had tagged as relevant in her initial analysis.
Detective Casey said that the video of ES doing a back flip on the accused’s bed had a created date of 14 November 2020 and the photograph of the accused’s leg had a created date of 8 November 2020.
Detective Casey said that in reviewing the extracted material, she looked for messages between ES and DO and did not tag any messages as she did not locate anything relevant.
As to her interview with DO, Detective Casey said that at the completion of the interview she told DO that it was important she kept the details of the interview to herself as Detective Casey would need to speak to ES.
Detective Casey said that she had organised to interview ES on a number of occasions from late January 2021, but the interview did not take place until 17 March 2021 because ES was either unable to attend or did not turn up as scheduled.
Detective Casey was asked a number of questions about ES’ suggestion in her interview that the accused had removed her underwear. She agreed that in cases where a report of an alleged crime is made contemporaneously with an incident in question, seizing an article of clothing such as underwear would be prudent. However, Detective Casey said that is not something that should necessarily occur where the allegation is not recent because the prospect of obtaining probative evidence in such circumstances is ‘extremely limited’.
Defence case
The accused gave evidence in his defence denying the commission of the charged acts.
The accused was 28 at the time of trial and 25 at the time of the alleged offending.
In terms of his background, the accused completed his secondary education to Year 10 level and thereafter undertook a plastering apprenticeship before working in a variety of different trades. At the time of trial he was employed with a logistics company.
The accused suffers from ADHD and various learning difficulties including dyslexia and verbal comprehension limitations. He said the ADHD can affect his memory.
The accused met MZ through the Club where he had been playing football since 2013. He also met ES through the Club when she was playing Under 14 football. In addition to other roles he had around the Club, the accused was the ‘water boy’ for the Under 14 side in which his younger brother and ES played.
The accused said that as at 2020, he considered ES to be like a younger sister. He helped her with her football and would give her lifts home from time to time and take her to get food. The accused said that ES would message him on social media asking for a lift. Sometimes the accused would agree to ES’ requests and other times he would tell her ‘no’.
When asked how he came to be in contact with ES on social media, the accused said it was via Snapchat but could not recall how it came about and whether he and ES exchanged contact details at some point.
The accused said he could not recall how he thought ES viewed him as at 2020.
The accused said he was not initially aware of ES taking drugs but noticed a change in her behaviour on the first few occasions he gave her a lift. ES told him that she was smoking marijuana and taking MDMA. The accused told ES more than once that he did not like her taking drugs. He said further that he told ES’ mother about her drug taking during the 2020 football season.
2020 Football season
The accused gave evidence that the 2020 football season was interrupted because of COVID, which meant that the season was effectively halved with the Club’s last game being played in August 2020. He said the season would normally run until September.
Count 1
In his evidence in chief, the accused said that he had given ES lifts from the Club on more than one occasion. The accused said this would happen when he was at the football club and ‘sometimes she – it would be “I’m too lazy to walk”, she just wanted a lift home because it would be quicker’.
The accused denied driving ES to a park or scrubland in the Hope Valley area and denied having sex with her in the manner alleged in count 1, or at all for that matter.
Counts 2-4
The accused said the first time he met DO was on the night of 8 November 2020 when ES contacted him on Snapchat asking for a lift home. The accused said that ES had initially rung him but he had not answered her calls as he had found out his partner at the time was ‘cheating’ on him.
ES then messaged the accused asking him for a lift. The accused said ‘no’ but ES kept ‘bombarding’ him with messages – one of which was to the effect that ES had no way home - and he eventually relented and agreed to pick her up.
The accused drove from his house at Ingle Farm to the Salisbury Football Club where ES and DO alighted another vehicle and got into the accused’s vehicle. The accused said he was surprised to see someone in addition to ES as his understanding was that he was only collecting ES.
The accused said he noticed that ES was ‘munching her gums’ so he asked her if she had ‘been taking anything’, to which she responded ‘I’ve been taking MDMA’. The accused could not recall DO’s presentation.
The accused said he thought he was to drive the complainants to ES’ house but ES asked if they could stay at his house and said ‘[d]on’t take me home, I’m on MDMA caps, I don’t want mum finding out’. The accused was then living in rental accommodation with a retired tattoo artist. He said he drove the complainants to his house so they would have somewhere to sleep.
He denied calling ES a slut during the trip to his house or expressing any jealousy on account of ES and DO being with other males.
The accused said they arrived at his house sometime after midnight and he told the complainants to be quiet. The accused went to his bedroom and the complainants followed him, without invitation, although according to the accused, he had offered his bed to the complainants as they entered the house. One of the complainants then asked the accused to put Magic Mike on, which he did, before leaving the bedroom.
The accused said he could not recall why he offered his bedroom, and not the sofa, to the complainants.
The accused returned to the living room and went to sleep. He denied engaging in any sexual activity with either complainant.
The following morning
The following morning, the accused approached his bedroom with a view to waking the complainants. Upon opening the door, he saw the complainants were already awake. He told them he would take them home, having in mind taking them to ES’ house.
The accused acknowledged that the photograph P5 depicted his leg. He said he had no memory of the photograph being taken.
The accused dropped the complainants at a playground near ES’ house as ES had requested.
He could not recall what he did for the remainder of the day.
When asked about the recording of ES and DO being in his bedroom, the accused said he could not recall how they came to be in his room a week after they had slept at his house.
The accused gave evidence about a telephone conversation he had with ES on New Year’s Eve. He said he had got ES’ number from a friend and had called ES to explain that her mum had assaulted him and to inquire if ES knew about it. ES said she was unaware of the accused having been assaulted by her mother. The evidence of the accused continued:
Q.    Apart from raising the assault, what other topics did you raise with [ES] that day.
A.    About, apparently, I had slept with the two girls.
Q.    What did you say on that topic to [ES].
A.    I said 'That you know that this didn't happen at all'.
Q.    At any stage in that conversation did you ask [ES] to lie for you to the police.
A.    No, I did not.
Q.Didn't ask her to, sort of, lie to cover up anything that might have happened between you and her.
A.    No.
Cross examination
In cross examination, the accused said that he became friendly with ES’ mum in 2020 having seen her around the Club. They became Facebook ‘friends’ and exchanged messages. The accused did not have Snapchat communications with ES’ mum.
The accused met ES through her friend, C, and in the context of helping out with the ‘junior’ members of the Club. The accused could not say whether he met ES or MZ first in time.
By November 2020, the accused and ES were communicating over Snapchat. According to the accused, ES had sent him a Snapchat friend request which he accepted. The accused was not able to say how long it was after he first met ES that she sent him a friend request.
The accused said he and ES would communicate on Snapchat on a weekly basis. The accused would pick her up if she needed a lift and there was no one else who could do it and sometimes if ES wanted McDonalds, he would buy her food.
When asked to explain how he came to develop what he described as an older brother / sister relationship with ES, the accused gave the following evidence:
Q.Can you just help me to understand how it was that you came to develop that kind of relationship with her.
A.I had a bond with her where she used to get angry on the football field and I'll tell her 'It's not worth getting angry, just go for the ball, keep your feet, do the right thing and the ball always come to your feet'. Then if she was doing something that she wasn't supposed to do I'd go 'Don't do that, don't do that, you're going to get carded', stuff like that, just simple things like that. Pretty [sic] she could talk to me if she was having trouble at school, I would have a good conversation with her, I guess.
Q. So sort of mentoring on the football field.
A. Yeah, I was mentor because I like my football, I played it for 20 years.
Q.Then similarly in relation to other issues, like school-related issues she might have been going through you would help her work through those; is that right.
A.Yes, sometimes I'd have a conversation with her because my little brother has ADHD and my brother and her were very close, so them two would obviously talk and have little arguments I'm guessing, but I just try to step in to say 'Hey, that's not right, there's a certain way to do things'.
As to the events of 8 November 2020, the accused confirmed in cross examination that he had expected to take ES home that night. He said he did not because ES asked him not to as she had consumed drugs. The accused acknowledged however that sometime after this particular night, he had in fact told ES’ mother about her drug use. On this topic, the accused’s evidence as to the reaction of MZ when he made this disclosure was rather unenlightening:
Q.    When you told [ES’] mum about her drug use, how did her mum react.
A.    I don't really recall how she reacted.
Q.    Was it a conversation you had with her mum over telephone or face-to-face.
A.    No, it would have been maybe face-to-face I'm thinking.
Q.    Whereabouts.
A.    Maybe at the club, I don't really recall.
Q.    And you can't recall her mum's reaction, if any.
A.    No.
XXN
Q.    So the conversation you had with [ES’] mum was after 8 November.
A.    Can you explain that again?
Q.    So the night they slept at your house was 8 November, correct.
A.    Correct.
Q.    And the conversation you had with her mum about the drug use was after that.
A.    Correct.
Q.    The footy season had finished before that.
A.    Correct.
Q.    Where did you see her mum.
A.    At the shops I'm thinking.
HIS HONOUR
Q.    Sorry, I missed that.
A.    I believe maybe at the shops, I don't really recall.
XXN
Q.    So you don't know exactly where that conversation occurred.
A.    No.
Q.    Is that correct.
A.    Correct.
Q.    You think it was in person but you're not sure.
A.    I'm not sure.
Q.And you can't tell us what her mum's response was to you telling her her daughter had been taking drugs.
A.    I don't recall.
Q.How long after the night that she'd stayed at your house did you have that conversation with her mum.
A.    Don't recall.
The accused was challenged about why it was that he offered his bedroom to ES and DO. I set out the cross examination on this topic:
Q.If we look at photograph No.6 on p.3, you've told us that if we look at the right-hand side of the hallway the first door is yours.
A.    Correct.
Q.    The second door would have been your housemate at the time.
A.    Correct.
Q.    And his bedroom, I think you said, was bedroom 2.
A.    Correct.
Q.    So bedroom 3 is one of the other doors in that hallway, is that right.
A.    Bedroom 3 would be at the end of the corridor.
Q.    So the door that we can see -
A.    That's straight.
Q.    - straight in the middle. Was anyone living there at the time.
A.    Yes.
Q.    So you had two housemates effectively.
A.    One.
Q.    So who was using bedroom 3.
A.    That was the spare room.
Q.    Was it set up with a bed.
A.    Yes.
Q.    Why didn't you get the girls to stay in that room.
A.    I don't recall.
Q.    Why didn't you offer one the couch and one the spare bed.
A.    I don't recall.
Q.    You chose to allow two 14-year-old girls to sleep in your own bed.
A.    I don't know.
Q.But you chose to allow the two 14-year-old girls to stay in your bed that night, correct.
A.I let them sleep in my bedroom because if they don't know the house, they've never been to the house, I thought they would feel safe sleeping in the same bed together while I slept on the couch.
Q.    Couldn't they sleep in the same bed together in the spare room.
A.Well, if something went missing I would have obviously got - me and my housemate would have had an argument about it and I don't know the girls regularly outside of the house, so if they had sticky fingers, I didn't want anything getting taken from the house.
Q.    Why would you be concerned about the girls stealing from you.
A.    I had a good relationship with my housemate, so.
Q.    Why not let them both sleep in the lounge room, it's an open common area.
A.    I don't know.
Q.Now, you took the two underage girls to your bedroom to have sex with them, didn't you.
A.    No.
HIS HONOUR
Q.    Apart from a bed in the third bedroom, what else was in that room.
A.Obviously these are new photos. There was actually - that room was actually full of other stuff I believe.
Q.    What does that mean.
A.So at the moment, as I can see on photo 7, there was actually - there's things in there but there's things in it that's actually been taken out, because that whole bed, I believe it was covered.
Q.    Sorry, say that again.
A.I believe the bed was covered with all like furniture and other stuff on it. So obviously the house has been changed around since I haven't been there.

There were some other variations in ES’ account of count 1. For example, ES told Detective Casey that she had no internet connection available to her when at the Club prior to the alleged commission of count 1, whereas her evidence was that she ‘hotspotted’ internet from another club member. ES also agreed in cross examination that she may have ‘messed…up’ how it was that the accused came to be giving her a lift, having told Detective Casey he was in fact at the Club and asked her if she wanted to go for a drive, whereas her evidence was that they had organised to go for a drive via Snapchat communications. Again, I accept this may reflect on her reliability but I do not consider that this development in her account reflected negatively on her credibility in any material way.
As to the events of 8 November 2020, there was a slight tension between ES’ account to police that the accused had spoken to her mum about the complainants’ staying at his house and her evidence in cross examination that this was something the accused had told her about, purportedly by way of recounting a conversation he had with MZ. However, as I said earlier on in these reasons, it was occasionally difficult to discern from ES’ interview whether she was reporting things she had been told or about which she had first knowledge. I am inclined to think that this potential difference between what ES said to the police and her evidence is explained by the imprecision in her language more than anything else. However, even if this was something the accused had told ES about, it strikes me as somewhat puzzling that if the accused had in mind taking advantage sexually of ES upon the return to his house, which would seem to follow from the manner in which events very quickly progressed, he would have either (1) in fact spoken with MZ about ES staying overnight at his house or (2) told ES that he had done so – whether or not true – because in either event, the accused would have been paving the way to discussion between ES and MZ about the ‘sleepover’. I do not consider this to be a significant matter, but it is a small part of the overall plausibility of the allegations. So too is ES’ evidence that she had asked the accused on a number of occasions this particular night to pick her up but he had initially declined to do so. Again, I do not make much of this but there was an apparent lack of eagerness by the accused to pick ES up in circumstances where he must have been assuming that, had he done so, he would have had the opportunity to be alone with her.
It will also be remembered that there is a difference between the evidence of ES and DO as to where ES slept after having sex with the accused. ES said she slept on the bed; DO said she slept on the floor. Where ES slept is not in itself a particularly important matter; but what is relevant, to my mind, is that it is yet another topic on which ES and DO are inconsistent, in the same way that they are inconsistent with each other as to whether the accused removed their underwear.
There was, in addition, conflict between ES and DO’s evidence about conversations with the accused during the car ride back to his house. ES had told Detective Casey that during the trip to Para Hills, the accused had interrogated the girls about whether they had slept with the ‘Afghan boys’ they had been with earlier that night and had called ES a ‘slut’. DO did not suggest that any such conversations took place on the trip to Para Hills and in cross examination, ES in fact said she could not remember if the accused had called her a ‘slut’ during the car ride.
I mention again the conflict in the evidence of ES and DO about the accused having sex with ES from behind her. This was not a form of sexual activity that ES suggested occurred. ES did not express any uncertainty or ambiguity as to the nature of the sexual activity the accused engaged in with her. I find the conflict in the evidence on this topic troubling. I acknowledge, as I have earlier remarked, that DO said she was essentially trying to distract herself from what was occurring between the accused and ES, but it remains concerning that there is such a significant divergence in the evidence of ES and DO on this point and that DO did not mention this form of sex when she spoke to Detective Casey. Although I generally preferred the evidence of DO to that of ES, on this matter, I am inclined to prefer the evidence of ES that no such sexual activity took place. I consider that both the fact of the inconsistency between ES and DO and the circumstances in which the inconsistency has arisen to be significant to my assessment of DO’s credibility and reliability.
I note further the inconsistency between ES’ evidence that the morning after the ‘sleepover’, the accused dropped the complainants at ES’ house and her suggestion to police during her interview that the accused had dropped the complainants at DO’s house. I pause here to observe that what ES said to the police was inconsistent with DO’s evidence however by the time she gave evidence, ES’ position had changed to align with DO. As I have said previously, whilst I reject the possibility of collusion or contamination as accounting for these allegations, the variations in ES’ evidence and the conflicts as between her account and DO’s account on certain topics are material to my assessment of whether the prosecution has proved its case beyond reasonable doubt.
I also bear in mind that ES told Detective Casey that she and DO were contacted by the accused later on 8 November after he had dropped them off, and invited them to return to his house. DO did not give evidence of any such invitation on 8 November. ES also told Detective Casey that the accused in fact collected her and DO from a bus stop near ES’ house later that day and told them not to tell anyone about him picking them up. This was not suggested by DO to have taken place. I find it surprising that DO did not mention these post incident events in the course of her evidence. I also consider that the willingness of one or both complainants to spend time in the company of the accused later on 8 November 2020 to be relevant to the plausibility of the allegations of sexual misconduct.
I have earlier discussed the evidence that ES and DO returned to the accused’s house a week after 8 November 2020 at which time ES was recorded doing a back flip on the accused’s bed and wearing articles of clothing belonging to the accused. I adopt without repeating the remarks I made on this topic when addressing DO’s evidence.
It will be remembered that in her prescribed interview, ES told Detective Casey that DO had told her that she would need to provide detail to the police. ES denied that DO in fact gave her details of what DO had disclosed to Detective Casey. She also said she could not remember telling Detective Casey that DO had said the police would want detail. Contrastingly, ES was very candid about the conversations she and DO had following 8 November 2020. She said they had discussed ‘everything’ in the day or two after the ‘sleepover’ and that she had told DO that she had previously ‘got with [the accused].’ As I have previously indicated, I find the transparent accounts given by ES and DO as to post incident discussions to exclude any possibility of collusion. However, I do consider that ES’ inability to remember telling Detective Casey that DO had advised her the police would want detail, to reflect on ES’ reliability.
As to the New Year’s Eve phone call about which ES gave evidence, I have previously mentioned that the prosecution did not place much reliance on the content of the call. Whilst I find that the accused spoke with ES on New Year’s Eve, as was common ground, I am not satisfied that the accused made anything other than a denial of wrongdoing in the telephone conversation. I note further that ES suggested that the accused asked her to ‘delete all the evidence that [DO] had like the screenshots and like all the videos in his house off her phone’. There was no evidence from DO – or ES for that matter – that the accused was or could have been aware of any photos or recordings that DO had on her phone.
I also have regard to MZ’s evidence that at or around the time the allegations were made against the accused, ES would often lie to her mother about where she was. That is perhaps unsurprising given ES’ age at the time and the fact that she was taking MDMA with some regularity. ES may well have sought to distance herself from her mother to facilitate her socialising and drug taking. MZ’s evidence does however suggest a willingness by ES to mislead her as to her whereabouts, but I consider that to be a qualitatively different proposition to falsifying allegations of sexual assault against someone so as to reflect only marginally on the reliability and credibility of ES’ account. Nonetheless, as I have previously intimated in other contexts, it is necessary to view the matters I am traversing in combination and not in isolation.
For the reasons I have mentioned, in combination, I found ES to be a generally credible witness insofar as I consider that she was endeavouring to tell me what she considered to be the truth, but I did find aspects of ES’ evidence to be unreliable.
In reaching this conclusion, I have taken into account the evidence relating to counts 1, 2 and 3 consistently with the concession made by Ms Luu as to cross admissibility and the direction I earlier detailed, however for reasons that will become apparent, that does not assist the prosecution in the circumstances.
Motive to lie
I have previously set out the directions I have given myself in relation to assessing a motive to lie and it is unnecessary to repeat them. The motives for ES to lie identified by Ms Luu were disdain towards the accused because of what ES thought were his unwarranted and unfair disclosures to her mother about her drug use; or having a boy in the house; or because she had unrequited feelings for the accused.
Of course, the mere existence of a motive to lie does not mean it is reasonably possible that a witness’ evidence is a lie. A witness may have a motive to lie without that motive being responsible for their allegations or actuating their evidence. That is to say, the existence of a motive does not mean it is reasonably possible the witness has acted on the motive. Nonetheless, where the evidence reveals the existence of a motive or motives to lie, those matters must be given careful consideration and, as I have previously said, even if it can be concluded that the evidence given by the witness is not the product of a motive to lie, that does not mean the witness is telling the truth nor does it offer any buttress to the prosecution case.
I accept that the matters relied upon by Ms Luu are potentially quite powerful motives for ES to have fabricated allegations against the accused. I accept in that respect that the evidence discloses that ES may have had reasons to manufacture allegations against the accused. However, in considering the possibility that any one or more of these motives accounts for ES’ allegations against the accused, I bear in mind that there was no evidence that ES suffered any particular repercussions as a result of her mother finding out about her MDMA use or that she had a boy in the house. ES did say she was ‘pissed off’ about the accused telling her mother about her drug use but, otherwise, there do not appear to have been any significant consequences for ES because of the accused’s disclosures. ES said she did not have a big argument with her mum about MDMA and her mum just told her to stop using it, adding ‘but we didn’t get into a fight about it, a big fight’.
Moreover, as ES said in cross examination, the issue with the ‘boy’ being in the house was not particularly problematic for her as he was not at the house for ES: as ES said, ‘I didn’t care’. The cogency of these disclosures by the accused as explanations for ES’ allegations would be increased if it were demonstrated that they worked substantially to ES’ detriment – but the evidence did not suggest as much.
I reject the suggestion that ES’ allegations are the product of her having a grievance with the accused as a result of him disclosing her drug use or the ‘boy’ incident.
As to the possibility that ES was driven to manufacture allegations against the accused because she had unreciprocated romantic feelings for him, I accept that ES said in her evidence that she ‘fancied’ the accused; but the evidence did not go so far as to suggest, for example, that she had pursued a romantic relationship with him but had been rebuffed. Again, I reject the possibility that this thesis accounts for ES’ allegations.
Of course, and as I have said, having rejected the contention that ES’ allegations might be explained by a motive or motives to lie, that does not make ES’ evidence more believable or reliable and it does not mean she does not have an operative motive to lie. It remains incumbent on the prosecution to persuade me of the credibility and reliability of her evidence and prove the elements of counts 1-3 beyond reasonable doubt.
Accused’s evidence
The accused generally gave his evidence in an unemotive and responsive way. For the most part, his answers to questions in both examination in chief and cross examination tended to be succinct. He tended to elaborate or provide detail only when requested.
The content and presentation of the accused’s evidence was also generally consistent with the presence of some of the learning difficulties that he said he suffered. There was nothing about the evidence of the accused that was glaringly improbable and his evidence was not materially undermined in cross examination. However, I found aspects of the accused’s evidence troubling.
The accused’s evidence about the circumstances in which he came to be in contact with ES via Snapchat and the aloofness surrounding his contact with ES outside of the Club – for example, when driving her to various places – was curious to say the least. I was inclined to think that the accused was being somewhat guarded or cautious about disclosing how much time and how he came to spend time in ES’ company, with a view to minimising the nature and extent of his relationship with her.
I also considered his lack of recollection on various topics, which was a recurring feature of his evidence, to be somewhat unsettling.
By way of example only, I set out the following exchange during cross examination which tends to illustrate the degree to which the accused asserted a limited memory on certain topics:
Q.A moment ago you mentioned you would only take her home if she had no other way to get home, is that correct.
A.    Correct.
Q.    At that point in time did her mum not have a licence.
A.    I don't recall.
Q.    So you took her home quite frequently.
A.    Sometimes.
Q.You heard, you would have seen [ES'] interview where she talked about how you had one car and then there was some kind of accident and you had another car.
A.    Correct.
Q.    When did that occur.
A.    I don't recall.
Q.But the events she described is what happened, you had an accident and had to change vehicles.
A.    I had an accident and I needed the car to get to work.
Q.So what she describes about you changing cars because of an accident, that's correct.
A.    That's correct, yes.
Q.    But you are not exactly sure when that was.
A.    Correct.
Q.    Was it in 2020.
A.    I don't recall.
Q.    When you would take [ES] home did you do so in both of those vehicles.
A.    I don't recall.
Q.When you would take [ES] home would you also take other members of her family with you.
A.    I don't recall.
The accused’s asserted lack of recollection about various matters could possibly be accounted for by evasiveness or an unwillingness to tie himself down in his evidence in certain respects; but it may also be reflective of the fact that the accused was speaking to events that occurred a number of years ago and I bear in mind the potential interrelationship between his memory, learning difficulties and the head injury he said he sustained.
There is, additionally, some force in Ms Luu’s submission that the accused resisted the opportunity during his evidence to embellish or develop answers that had the potential to assist in the presentation of his defence. I again reference the discussion with MZ about the complainants staying at his house and his inability to recall MZ’s reaction to his disclosure of ES’ drug use. It may be thought that if the accused was ‘malingering’ when asserting a lack of recollection, he would have seized on these opportunities to reinforce the defence position, but he did not do so.
I also found the evidence of ES and the accused that he had told MZ about ES’ use of drugs to be puzzling for this reason: the disclosure appears to have occurred, at the very least, after count 1 is said to have taken place[20] and it may be doubted that the accused would engage in conduct likely to precipitate a conflict with ES if he had in fact had unlawful sexual intercourse with her. It might be thought that telling MZ about ES’ drug use could well be the very kind of thing likely to prompt ES to complain about the accused’s conduct, so as to deflect any difficulties that his disclosure brought about for her. Again, I do not consider this to be by itself in any way decisive, but it does strike me as conduct by the accused that does not sit neatly with the allegation/s of unlawful sex.
[20] On ES’ version, the disclosure was made after count 1; on the accused’s version, the disclosure was made after 8 November 2020.
I have previously remarked upon the New Year’s Eve phone call between ES and the accused and said that no adverse finding against the accused can be made in respect of that conversation and the prosecution did not urge me to make any such finding. I add further that in cross examination of the accused, it was put to him that he told ES to tell the police that DO was lying and was just upset with him at having not given her a lift. The accused rejected these propositions and I think it is highly unlikely that he would have suggested that ES attempt to persuade the police that DO had made up allegations of sexual assault because the accused had not given her a lift on some unspecified occasion. In any event, as I have said, in light of the way the evidence came out and apart from it being common ground that the accused and ES had a telephone conversation, I cannot make anything further of the content of the call.
Whilst I did not find the accused to be a particularly impressive or persuasive witness, his denials were not seriously undermined in cross examination and the substance of his evidence was generally cohesive.
Conclusion
The resolution of the key forensic issues in this case is not without difficulty. As I have said, I found DO to be a generally impressive witness. She was forthright and direct in her responses to questions and she presented in a mature and thoughtful way. Her evidence, viewed holistically, hung together reasonably neatly. I accept that DO’s account of the events of 8 November 2020 was shown to be inconsistent in numerous respects that I have canvassed and, perhaps most significantly, her late and inconsistent suggestion that the accused engaged in sex with ES from behind her is also refuted by ES’ evidence.
I did not find the evidence of ES to be as persuasive as the evidence of DO. In fact, I considered ES to be in numerous respects unreliable and so much was, I find, demonstrated by the various inconsistencies I have referred to. Nonetheless, and as I have said, I generally thought ES was endeavouring to tell the truth.
I did not find the accused to be a particularly compelling witness. I had reason to pause over the excessive number of occasions on which the accused answered questions with ‘I don’t recall’ but, as I have mentioned, I find it difficult to conclude in the particular circumstances of this case that these were necessarily evasive or disingenuous claims of a lack of memory. He was, however, unmoved and stoic in his evidence that he did not engage in unlawful sex with either ES or DO.

As to count 1, there are aspects of ES’ account which appeal to me as uncompromisingly honest. I refer, in particular, to her frank suggestion to Detective Casey that she had, as a matter of fact ‘consented’ to sexual activity with the accused in his car and did not care whether he got in trouble in respect of that episode. That evidence has the quality of a truthful explanation to me and I note further that ES was open about the limits of her memory insofar as the sexual activity in the car was concerned. Equally, however, I consider the inconsistencies in ES’ evidence of count 1 to be troubling. The shift in her version of events about the timing of the incident and the varied accounts she gave about how she came to be alone with the accused on that occasion require careful scrutiny. I must also bring to account the forensic disadvantage which I consider the accused suffers in meeting this allegation given the imprecision in the prosecution case as to when it took place which denied the accused of the opportunity to marshal evidence in his defence and further test ES’ allegations. In circumstances where the accused’s denials of this charge were neither implausible, glaringly improbable nor materially undermined in cross examination, I am unsure as to where the truth lies. Although I am deeply suspicious that the accused engaged in unlawful sexual activity with ES in his vehicle as alleged, I am unable to make such a finding beyond reasonable doubt and my verdict must therefore be not guilty.
As to counts 2, 3 and 4, the evidence of DO and ES was, in many respects, consistent and coherent. I have already remarked upon the extent to which there were variations in their accounts, which might be explained by a number of matters, including the nature of the alleged episode and the stressors prevailing upon each of them at the time; the period of time that has elapsed since the alleged events; their age; and the consequences associated with having to re-tell a version of events on multiple occasions.
Be that as it may, and despite the fronts on which they are consistent, the fact is there are also not insubstantial conflicts in their accounts about what happened in the accused’s bedroom. These conflicts mean that one or perhaps both of them are wrong about the events that took place in material respects. As I have said earlier, the conflict or inconsistencies in the evidence of ES and DO gives me confidence that these allegations are not the product of collusion, but they do create a difficulty in discerning what actually happened.
These difficulties are, to my mind, compounded when viewed in the context of the re-attendance by ES and DO at the accused’s house and their frivolity in his bedroom, just a week after the events of 8 November 2020. The manner in which ES and DO conducted themselves on that occasion gives me some disquiet about their evidence as to counts 2-4, although for the reasons I have previously given I do not suggest their behaviour was completely inexplicable given their age nor fundamentally incompatible with their allegations. Nonetheless, it remains an important feature of the evidence.
Having said that, it is undeniably the case that the evidence of ES and DO is consistent insofar as both allege that ES performed fellatio on the accused and the accused then had sex with her. The consistency of their evidence, which I have found cannot be explained by collusion or contamination, is a strong indicator of honesty.
DO’s evidence as to the commission of count 4 is, obviously enough, not supported by ES but that too is unsurprising given both ES and DO said that ES went to sleep after the accused had sex with her. It is, I consider, a testament to ES’ genuine endeavour to tell the truth that despite being told by DO that the accused had tried to have sex with her, ES remained clear and consistent in her evidence that she did not see what transpired between the accused and DO.
On the other hand, and for reasons I will not repeat at length, there were aspects of the accused’s evidence that I considered to be curious if not suspicious but he remained steadfast in his denials of any wrongdoing and the concreteness of his denials and the integrity of his evidence more generally was not substantially dismantled by cross examination.
Plainly enough, in some respects, the versions of ES and DO cannot both be universally correct and neither version is in any substantive way reconcilable with the accused’s account. Compounding the difficulty is that the evidence given by ES, DO and the accused presented, in various respects, with characteristics that appear to be consistent with truthful evidence; yet their accounts are fundamentally mutually exclusive.
As I directed myself at the outset of these reasons, the question for me is not whether I prefer the evidence of one or both of the complainants to that of the accused but whether the prosecution has proved the elements of the offences beyond reasonable doubt, which necessarily requires me to reject the accused’s denials as not reasonably possibly true and to accept the evidence of ES and / or DO in relation to the charged acts as honest and accurate.
Having heard and re-considered all of the evidence given at trial and reviewed the exhibits, I have arrived at the conclusion that I am unsure where the truth lies in this matter. The detail and manner in which DO in particular gave her evidence, supported by and consistent as it was with the evidence given by ES in important ways, again makes me highly suspicious that the accused engaged in unlawful sex with both complainants as alleged. However, the misgivings I hold about the accused’s evidence are not sufficient for me to reject his denials as not reasonably possibly true.
I find I am unable to reach a conclusion to the criminal standard that the accused committed the acts the subject of counts 2, 3 and 4. I do not know who of the apparently generally credible and reliable witnesses was telling me the truth. It follows that I am not satisfied beyond reasonable doubt that the charges have been proved.
In those circumstances, my verdicts on counts 2, 3 and 4 must be not guilty.
Verdicts
For these reasons, I find the accused not guilty of counts 1, 2, 3 and 4 on the Information of 5 August 2022.