R v Brawn
[2025] SADC 118
•3 October 2025
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BRAWN
[2025] SADC 118
Reasons for the Verdict of his Honour Auxiliary Judge Barrett
3 October 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND SEXUAL ABUSE OF A CHILD
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND COINCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - GENERALLY
The accused is charged with Maintaining an Unlawful Sexual Relationship with the daughter of a family friend when she was 5 and 8 years old. The accused gave evidence denying the charge.
Held: The accused is Not Guilty
Child Safety (Prohibited Persons) Act 2016 (SA) s 38; Evidence Act 1929 (SA) s 34, s 34P, s 34P(1), s 34P (2) (a), s 34R(1), s 34R(2), referred to.
Eddy (a Pseudonym) v The King [2024] SASCA 115; R v C, CA [2013] SASCFC 137; R v Baltensperger (2004) 90 SASR 129; R v Jones [2018] SASCFC 80; Douglass v The Queen [2012] HCA 34, applied.
R v BRAWN
[2025] SADC 118
The accused is charged with Maintaining an Unlawful Sexual Relationship with a Child. I reproduce the Information:
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) Criminal Law Consolidation Act, 1935).
Particulars of Offence
[B, MC] at Blakeview, Clearview, Andrews Farm and other places in the state of South Australia, between the 1st day of April 2016 and the 1st day of January 2019, maintained an unlawful sexual relationship with [SMM], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a) penetrating her anus with his penis;
(b) causing her to perform fellatio upon him;
(c) performing cunnilingus upon her; and
(d) causing her to touch his penis.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
The accused has elected to be tried by judge alone.
Overview
This is a retrial following a successful appeal to the High Court.
The accused is now aged 27. The complainant is 15. The families of each are migrants from Sudan. The accused was born in Sudan. He is the eldest of four children although an adopted niece is also part of the family.
The complainant is the middle of three children. She has an older brother and a younger sister. The two families are well known to each other.
The complainant alleges that the accused sexually offended against her at three locations; the home of each of the families and on one occasion at the birthday party of a cousin in a park. The complainant thought that the birthday being celebrated was the cousin’s second birthday, but other evidence would suggest it was his first. It is an agreed fact that the cousin’s first birthday took place on Saturday 13 October 2018.[1]
[1] P19 [7].
Photographs of the park were tendered (P5) and there was tendered a USB showing small sections of the party (D15). The circumstances of that party assume some importance in the trial.
The complainant alleges that the accused sexually abused her during a period of about three weeks when she stayed at the home of his family while her mother travelled to Africa. It is agreed that the complainant’s mother travelled to Sudan on 5 September 2016 and returned home on 24 September 2016.
The accused turned 18 on 1 April 2016. The complainant was aged six when her mother was overseas. The complainant alleges that the accused sexually offended against her before he turned 18. Those allegations are uncharged acts because he was not then an adult.
On 17 October 2019, the complainant complained to teachers about some aspects of her allegations.
The complainant took part in two prescribed interviews with police. They occurred on 19October 2019 and 7November 2019.
The accused was arrested and interviewed on 19 October 2019, later in the day of the first interview that the complainant had with the police.
The first trial of this matter took place before a jury in 2021. The complainant’s prescribed interviews were played during the trial and she gave evidence in court.
The accused gave evidence in the first trial.
Course of this trial
The complainant’s two police interviews were played (MFI P1 and MFI P2). Transcripts of each were tendered (MFI P1A, MFI P2A). Each exhibit was tendered through Detective Sergeant Sarsha Zacjer.
The complainant’s evidence at the first trial was played (MFI P3) and transcribed as MFI P3A. Upon leave being given to counsel, the complainant was examined-in-chief and cross-examined (T44 – 56).
The prosecution tendered the accused’s record of interview with the police (P18, transcript (MFI P18A). The prosecution also tendered the transcript of the accused’s evidence at the first trial (P16).
The prosecution called the complainant’s brother, AM, her father, MM and her mother, RM. The prosecution called from the complainant’s school a behavioural therapist, Ms Gregori and her class teacher, Mrs Ennis. The prosecution called the officer in charge of the investigation Brevet Sergeant Michael Sheratt. Exhibits were tendered and there were agreed facts.
The accused gave evidence and tendered exhibits. He tendered the transcript of a character witness he called at the first trial (D20).
Evidence of witnesses
The complainant
The complainants interviews with Detective Sergeant Sarsha Zacjer were admitted pursuant to s 13BA of the Evidence Act. The complainant was aged approximately nine years, three months and nine years, four months at the time of the interviews, respectively on 19 October and 7November 2019. Mr Culshaw consented to the two interviews being admitted (T3). He also consented to the tender of the recording of the complainant’s evidence at the first trial.
First interview with Detective Sergeant Zacjer on 19 October 2019 – 6:52pm to 8:13pm
I refer to passages in the transcript of the interview MFI P1A by their numbered paragraphs.
Understandably, Detective Sergeant Zacjer began her questions by seeking to elicit the last occasion on which the complainant alleges sexual offending occurred (76). That might be thought to be the occasion the complainant would be best able to remember.
There appears to have been an immediate misunderstanding by the complainant about the question about the last incident. Detective Sergeant Zacjer asked the complainant to tell her about the last occasion ‘from the beginning’. The complainant began her answer at 79 by saying ‘the first time he did it to me’. She went on to say it occurred when she was five years old in Reception. The complainant turned five in June of 2015. It is an agreed fact that she was in Reception in 2016 so she would have been five for the first half of 2016. The accused turned 18 on 1 April 2016.
Zacjer realised the complainant was focussing on the first occasion rather than the last, but she invited the complainant to slowly describe that occasion (82). The interview proceeded on that apparent understanding between paragraphs 82 and 207. The account in those passages is that the offending occurred at the accused’s house (85). The accused told her to come very quickly into his room (87). He took off her clothes and put his penis in her mouth. He made her suck it. He did that twice that day. The second time happened just before her parents came to pick her up (110). She was at the accused’s house that day because her aunt, the accused’s mother, was doing her hair (112). Other evidence suggests that the accused’s mother would braid the complainant’s hair every few weeks.
The complainant said that the accused locked his door and shouted at her ‘do it now’ (118). He pushed and pulled her near a dressing room which had drawers and a mirror (124, 126). He slammed her against ‘the dresser’ (147). He told her that if she didn’t do as she was told she would get into very big trouble (151). There was knocking on the bedroom door (155). She hid under a sheet. The accused’s brother, Paul, came in and asked what was going on (157). She told him that they were playing hide and seek. The accused said she was helping him clean his room. ‘Before everything’ she had been cleaning his room (163). She had been doing some folding (165). The accused told her that she was excused. She went out and again played hide and seek (167). She said this happened in the February of her Reception year (203).
The complainant then corrected herself and said the offending began towards the end of kindergarten (205, 207). The complainant therefore identified the occasion she had just described as the second time something happened (211). Zacjer sought further detail about that event, that is the event said to have been around February of her Reception year (212).
After revisiting that incident, the complainant said that in between the two episodes of sexual offending on the same day she had her hair done. She said ‘mum’ did her hair. It appears she meant her aunt did that because she said after the second incident that day her parents ‘came home’ and she did not tell them anything (219).
Zacjer sought further details of the second incident (220). The complainant said the accused accidentally ripped a little hole in her favourite pink underwear when he took her clothes off (221). The accused told her he wanted her to get a ‘hickey’. She did not know what that meant (225). She said that when the accused was sucking on her neck, she told him to stop. She said the accused then put ‘his front private part in my back private part’ but she immediately corrected herself by saying that was ‘the fourth time’ (T227).
Thereafter the account appears to return to the second incident on the same day. The complainant said that after her hair got done, she went to the toilet. When she came out the accused grabbed her hand and took her to his room. That is when he ripped the hole in her pink underwear (237). When he was sucking her neck, he had her on top of him (245, 253).
In further apparent reference to the same occasion, she described what might be understood as the accused putting his erect penis between her legs and ejaculating (255 – 280). The account then continues with her being forced to suck the accused’s neck (284 – 286). The complainant told her that if she stopped, he would pinch her with his very long nails. She referred to the accused kicking her and causing her bruises on her leg, but it was not clear whether she meant that that occurred during the same incident (286).
In what may be the same incident, the complainant related what might be understood to mean that the accused’s penis was touching her vagina (291 – 299). When the complainant was asked if she could feel anything happening at that point she replied ‘no, not really’ (300) but when asked if the accused’s penis was touching inside or outside her vagina, she said it touched her inside and it hurt her (312). She went on to say the penis went inside just a little bit (318), then it went in ‘really deep….and it…hurt…a lot’ (322). A few days later it started stinging (324).
While the accused was doing that, he was making a sound quite like he was ‘eating something…very yummy’ and was causing the bed to make a loud thumping noise (328). The complaint explained that the accused got his penis into her vagina by holding it with one hand and having his other hand on her bottom (362). She then corrected herself and said that he made her hold it (372).
The complainant then described what might be understood as the accused ejaculating (382). She said that the accused forced her head down to the ground and made her lick it (384). He made her swallow it (388).
Zacjer took her back to the part of her account where she said that the accused had his penis in her vagina. The complainant said that after that she was made to return to sucking his penis (394) but before that he slapped her on the back for no reason ‘and it…really hurt’ (398). The hurt was worse than being stung by a bee (400). She started crying. The accused closed her mouth. Her parents picked her up and she acted like nothing had happened (404).
Zacjer revisited the account of the complainant being forced to lick the ejaculate. The complainant gave answers which would suggest that the accused ejaculated while standing up and masturbating. She said that when forced to lick the ejaculate it ‘tasted quite disgusting’ and smelt ‘the worst smell ever’ (434 and 436). After that the complainant said that she went to the toilet and vomited (438). The complainant said that as a result of the sexual assaults on that day her vagina was ‘bleeding a little bit’ (448). She noticed that at home when she wiped herself with toilet paper (452). The bleeding continued for a week (458) or ‘one or two weeks’ (460).
Zacjer moved to questions about what the complainant had described as ‘the fourth time’. This incident had been mentioned by the complainant at 227 when, in the context of the accused sucking her neck, he had then put his penis into her anus. She stopped herself by describing that act as ‘the fourth time’ (227).
The complainant said that this incident was the worst (466). It happened when her mother was in Africa. It happened on the second day that she was staying at the accused’s place (460). The accused asked her into his room. She said “no” because she knew what he was going to do. He grabbed her hand and dragged her into his room where he forced her onto the bed. He ripped her skinny jeans a bit while getting them off (476). While there ‘the banana thing came out of his private part again … and then I grabbed a little bit and I put it on my tongue and then I spat it out’ (480). Then he put his penis in her anus causing it to bleed. The complainant told her aunt about the bleeding. When asked how that had happened, she told her aunt that she did not know. Next the accused forced her to grab his penis and put it in her mouth. She spat out saliva saying that she did not like it. The accused said he did not care. He started making her do it more. He made her kneel on the floor and then got her on top of him on the bed (482). There he forced her to suck on him (484). He used the ‘f word’. He told her that she was not doing it hard enough. He forced her to bite on his penis.
There follows an account of anal intercourse followed by fellatio. Upon committing fellatio, the complainant became very sick. She vomited in the toilet. She noticed that she was bleeding. She told her aunt who ‘checked it’ and said there is blood everywhere’ (488).
The accused said something bad was going to happen to her if she did not do what he said. When she went to the toilet he saw her vomiting. He closed her mouth and closed her nose so that she could not breathe. She felt like fainting. She bit his hand. This all happened in the toilet (510-512). Everybody was wondering why she vomited so often (532).
Zacjer asked the complainant to tell her more about the anal intercourse (533). The complainant said that he ‘did it … very deep and … I actually screamed and … quickly put on my clothes and ran to my aunty’. She remembered it was not a school day, but was an afternoon on a Saturday. She told her aunty what happened (534).
The complainant said that the accused had had anal intercourse with her more than one time, but this was the worst because it was the first (536). She said that she was leaning against a dresser when this was happening (538). She repeated that she ‘went to tell her aunt who asked, “what happened in there?” The complainant told her ‘she did not know. Her aunt “checked it” and then I told my dad’. The complainant said that the accused put her against the dresser and that made a big bang (550-558).
Zacjer asked if other things happened while the complainant was staying at the accused’s place. She said the accused ‘did it another time’ (582). At that stage of the interview the complainant said that she was getting a little tired. Zacjer said that she would just talk about the time just to identify and then they would finish. The complainant said it happened a lot of times (588). There was just ‘one day where he skipped it because he had … a night shift for work’ (590).
Zacjer confirmed with the complainant that what she had just mentioned, that the offending while she was staying at the accused’s place, happened when the complainant was in Reception. The complainant volunteered that it happened a lot of times when she was in Year 1 (she was in Year 1 in 2017). She said that was when she moved to her ‘new house’. There the accused told her to come into the bathroom where ‘he put…the banana thing into my hand…and…said put your tongue out…and I did it…and…spat it out’. The accused shouted at her and told her not to do it again (598).
Zacjer sought to address the last time something was alleged to happen (605). The complainant said that that was the day her mother was coming back from Africa (606 and 608). The complainant’s mother returned from Africa on 24 September 2016 (P19 paragraph 9).
The complainant gave an account of what would appear to be the last occasion (608-642).
She said that the accused told her to go into his room. She said “no” but when she went to the toilet, he caught her. He told her to sit down. He got her on his bed where he performed cunnilingus on her (610). He got her on top of him and made her perform fellatio. His mother knocked on the door (610). The accused pretended he was sleeping and said he was coming (622). When the accused first told her to sit down in the room, she sat down on a chair (616). At one stage when the complainant was performing fellatio, she said she didn’t like it, whereupon the accused shouted that he didn’t care. She said she thought the room must be soundproof because she could not believe that nobody heard what he said.
After his mother knocked on the door and he pretended he was sleeping, he quickly grabbed her hand and made her masturbate him, she had to kiss him (622-624). She said that as well as sucking her private part, the accused was sucking her tummy and thighs.
I summarise the central allegations made during this first interview on 19 October 2019. The complainant said that it was the accused who committed the unlawful sexual acts on her. She said that he committed acts of unlawful sexual intercourse consisting of penile/vaginal sexual intercourse, anal intercourse, fellatio and cunnilingus. She said that he committed some such acts when she was in kindergarten. She was in kindergarten before 2016. The accused did not turn 18 until 1 April 2016. The complainant said that some acts were committed in February 2016. She said the accused committed acts comprising each of the types of unlawful sexual intercourse while she was staying at his family home between 5 and 24 September 2016. Those acts were committed each day during the period except one when the accused worked a nightshift. At one stage the complainant said that the last act was committed on the day that her mother returned from Africa. At another stage she said that acts were committed when she was in Year 1 at school, which would have been 2017. The acts committed while her mother was away occurred in the accused’s bedroom. Acts also occurred in his bedroom at other times, including when the accused’s mother was braiding her hair. There was one such occasion when acts were committed twice on one day, one before and one after the hair braiding. The acts described in some detail were acts on the day of two episodes of offending, the fourth occasion and the occasion on the day of the complainant’s mother coming home.
Second interview with Detective Sergeant Zacjer on 7 November 2016 – 6:50pm to 7:14pm
Detective Sergeant Zacjer had begun questioning the complainant by referring to something the complainant had apparently told her before the interview that she said she had forgotten in the first interview (45). The complainant said that the accused kept banging her head on the counter. He had given her a bloody nose. He told her that she should go and wash her nose ‘before I do something badder to you’ (48).
The complainant was asked to elaborate on that occasion. She did so (52-172). The accused told her to go to his room (54). There he forced her to take off her clothes, to kiss him and to commit fellatio (56). The incident occurred before her mother went to Africa. Her visit to the accused’s home was to have her hair done by the accused’s mother (62). The complainant was made to get onto her knees, touch the accused’s thighs and perform fellatio (90). He told her to stop, then for no reason, he hit her on the nose causing it to bleed. He told her to go and wash it (92).
The complainant said that she thought the accused heard his dad come in. He quickly got dressed. He told her to get dressed, but said she did not have time to put her underwear on. As a result, she spent the rest of the day without her ‘yellow with stars’ underwear (96-98).
The accused’s bedroom door was locked. The accused often put his clothes under the door (104-106).
The complainant said the accused locked the door with a key he got from the drawer, the third drawer, in his closet (114-122).
The complainant said that the accused caused her blood nose after she got dressed (126-132). She thought others of the household were in the sitting room (136-140). No one saw her bloody nose.
She thought this incident occurred two months before her mother went away.
The complainant said that her hair was done after the incident with the accused (162). The complainant described the fellatio as being like eating and sucking a ‘hairy hotdog’ (166). She described the accused’s penis as straight and hairy (172).
Zacjer asked the complainant if the accused had done things to her other than when her mother was away. She said that he had and that it started when she was in kindergarten (188). She was at kindergarten before 2016. Zacjer did not pursue that topic. She asked the complainant to tell her about the last time something had happened with the accused (193).
The complainant described what happened (194-270). She said the accused came to her house (194), He told her to go to her room (196). There he undressed her and himself. He got her on top of him. He made her do ‘the up and down thing’ which made the bed squeak (200). His penis was near her vagina (206). He was moving it up and down. He then forced her to perform fellatio (208). He also forced her to suck his chest and face (212). He whispered ‘do it more’ (214). The forced fellatio caused her head to hurt. She stopped. The accused asked her what was wrong. She quickly got dressed and ran out to her parents. They asked what was wrong. She said she and the accused’s younger brother were just playing a game (218). People present at the house that day were her parents and brother, the accused, his two younger brothers, and his father. His father is the pastor of their ‘old church’ (228).
Zacjer sought clarification of the complainant’s account of the accused’s penis being near her vagina. The complainant said that the accused’s penis was very close, ‘like an inch …or a little bit more than an inch’ (236). Zacjer asked if the accused’s penis went inside her vagina (237). The complainant said yes and that she had forgotten to tell her that it went inside. It really hurt her and the accused kept saying he didn’t care if it hurt her (240-242).
Zacjer sought to clarify when this incident took place. The complainant said that it happened before the family got their dog (248-252). When asked when they got their dog, the complainant said ‘when I was six’….‘I was five probably’. Other family members suggest the dog was acquired shortly after the complainant’s mother returned from Africa. She returned on 24 September 2016. The complainant was six then.
Zacjer asked the complainant if anything had happened with the accused that year, namely 2019. The complainant said that it had not (272). Zacjer said that she had heard that something might have happened with the accused at a party (274). It would appear that the complainant realised that she might have told ‘the guidance counsellor’ about such an incident (282). She then gave an account of offending by the accused at the birthday party of a cousin (284-338).
Other evidence and agreed facts would suggest that the party being referred to, was the first birthday party of a cousin of the accused called C. The party was held at a park. There are photos of the park (P5), a brief video footage (D15) and Agreed Facts (P19, paragraph 11). The complainant said that the accused told her to go to a unisex toilet near the party (286 and 326). She believed that the accused wanted to give her a prize for winning a game played at the party. When in the toilet, the accused pulled down the pants of both of them. He sucked and bit her vagina for two to three minutes. She remembered her cousin saying that she had been away for two or five minutes. She and the accused pulled their pants up and left the toilet (294). The accused sucking her vagina caused her pain like a bee sting (198). She described some of the clothing she and the accused were wearing (308, 312-314).
The complainant was asked if there were any other times when the accused had offended against her (357). She said that she didn’t think so (358). She knew it had happened more than five times, but she could not remember most of them because it was such a long time ago (360).
Zacjer asked the complainant if there were any other places where she could remember things happening (363). The complainant said there was an incident at her old house (364). She described an incident there (366-410). She said it was at her old house when she was at kindergarten (402). It happened in her bedroom (400). The accused took off some of his and her clothes in a corner of the room (368). He was holding her face on his belly on the bed (372-374). Their private parts were touching. Someone knocked on the door. They dressed quickly (396). It was her sister knocking on the door (406).
I summarise the essential allegations made in this second interview. There was a new allegation of the accused assaulting her and sexually offending against her, two months before her mother went to Africa. The assault consisted of causing her a bloody nose and occurred while she was being forced to perform fellatio. She was at the accused house to have her hair done.
The complainant described the last incident as being at her place. The accused caused her to perform fellatio in her own bedroom. Penile/vaginal intercourse took place. Other members of her and his family were about the house at the time. Notwithstanding that the complainant said this was the last incident, she said it happened before her family got their dog.
The complainant also described the birthday party in the park incident. Which other evidence would suggest happened on 13 October 2018, well after the complainant’s mother returned from Africa and well after the dog was acquired.
Complainants evidence at the first trial – MFI P3
The first trial was held in 2021. The complainant turned 11 in that year. No questions were asked of her in examination-in-chief. She was cross-examined by Ms Belinda Powell KC. Her evidence was recorded. The transcript is MFI P3A.
Ms Powell questioned the complainant about the occasion where she says the accused sexually abused her twice on a day when she went to his place to have her hair done. The complainant agreed that that was in the first half of 2016 when she was in Reception (T53). She agreed that she was taken into the accused’s bedroom which is marked as bedroom four on what is in this trial P4. The complainant agreed that at the time she called the accused’s parents “uncle” and “aunty”. She agreed that in the house at the time were her mother, the accused’s mother (she was not sure about the accused’s father), the accused’s four siblings, including the adopted niece, and her own brother (T56). The complainant said there was a built-in lock on the accused’s bedroom door. The accused locked the door (T57). She denied ever saying that the accused took keys from the third drawer in a dresser in his room (T57).
The complainant agreed that she had said that there was a dresser and a mirror in the room. She confirmed that that was what she remembered (T59). She confirmed that the accused’s brother, Paul, knocked on the door, whereupon she and the accused quickly dressed (T59).
The complainant confirmed that the accused’s brother, Paul, had been let in and they spoke together. She confirmed that she had earlier been cleaning the accused’s room. She confirmed that she then left the room and played hide and seek with her younger sister and the accused’s younger brother, Joshua (T61).
The complainant then said that her hair was braided in the sitting area near the kitchen of the accused’s house (T62). She confirmed that she got pulled by the accused into his bedroom after her hair was braided. The door was locked again (T63). She was not sure if the accused slapped her on the back, but she said that she was crying. She said that on the second occasion that day, the accused had penile vaginal sexual intercourse with her which caused her vagina to bleed. She was not sure if the bleeding lasted for a week or two. She thought it lasted for five hours (T64).
Ms Powell then asked questions about the complainant’s account of being sexually abused in the accused house while her mother was in Africa. She agreed that while her mother was away she stayed at the accused house from about bedtime each evening until school the next day. Her father started work at around 5:00am each weekday. His practice was to collect the children from school in the afternoon, take them home for dinner and then deliver them to the accused’s mother around bedtime. On the weekends they would stay with their father (T65-66).
The complainant confirmed that she had said in her first interview that in the morning of a school day, the accused got her into his bedroom and had anal intercourse with her. She agreed that part way through her account in the first interview, she remembered that the incident occurred on a Saturday afternoon, not a school day morning (T67). She was not sure who else was at home at the time, but she remembered her aunt, her father and her sister (T67-68).
The complainant agreed that she had told her aunt about the bleeding to her bottom and that that was true. She said she was pretty sure that there was a quarter of a cup of blood. There had been blood in the toilet bowl and on the toilet paper. She said that she also told her father (T69).
Ms Powell then asked questions about the complainant’s account to the police officer about the last occasion something happened being towards the end of her stay at the accused’s house, that is, about the time her mother had returned from Africa. On that occasion when she said fellatio and cunnilingus occurred, the accused’s mother knocked on the door. The complainant said she was not sure whether the accused’s mother said anything when the door was opened (T70-71).
The complainant was not sure whether there was any other person coming into the bedroom, apart from the accused’s brother and his mother. She thought no one else did while she was staying at their house (T72).
The complainant confirmed that this occasion, the one where the accused’s mother knocked on the door, was the one when the accused had got her to sit on a chair in his bedroom and perform fellatio. The accused shouted at her. She could not believe that no one heard (T73).
The complainant indicated on the floorplan (P4) where in the accused’s bedroom she sat on the chair (T74).
Ms Powell asked questions about the blood nose evidence. She put to the complainant that that did not happen. At first, the complainant agreed (T75), but then she said it did (T76). She was not sure on which occasion that occurred.
Ms Powell read out the passage in the record of interview when the complainant had spoken about the nosebleed and the accused retrieving a key from the third drawer of the closet (T76-77).
Ms Powell asked questions about the birthday party in the park. The complainant agreed that she was mistaken about the exact location of the park and the birthday being celebrated. She agreed that it was C’s 1st birthday not his 2nd. (T78).
The complainant agreed that the photos of the park, now P5, show where the party was held (T81).
Ms Powell then asked questions about the evidence of the complaint, that is when, in 2019, the complainant spoke to two members of the staff at school. The evidence is that the complainant made first a brief complaint to a special needs teacher, Ms Gregori, then an elaboration of that complaint to her class teacher Mrs Ennis. Ms Powell asked the complainant if she had told Ms Gregori that sometimes her uncle did things to her that he should not. She said she was not sure whether she said that but she said that, her uncle, the accused’s father had not abused her (T82). She was not sure whether she said to Ms Gregori that her uncle bought her things that she did not want. She said that neither the accused’s father nor the accused had given her things that she did not want. She said however that another uncle bought her lollies she did not want, but he did not abuse her (T83).
Ms Powell produced a photo of a doorknob, (in this trial P6), and asked her if she recognised it. She said she did not (T84). She agreed that the doorknob depicted did not have a lock.
Ms Powell produced a photo of a wardrobe, (in the trial P9). The complainant agreed that the wardrobe was the dresser she was referring to in her evidence. She agreed that no mirror was depicted (T88). Looking at photographs of the accused’s bedroom, she agreed that no chair was depicted (T89).
When asked to comment on the photo of the doorknob without a lock, the complainant said that when she was in the room she saw a lock, and maybe it had been changed (T90-91).
In re-examination the complainant said that, notwithstanding that no mirror appears in the bedroom photos, there was a mirror when she was there (T91).
In further re-examination she was asked if she had ever regarded the accused’s father as her uncle. She said she had (T92). She confirmed that when she was speaking to Ms Gregori, she meant that it was the accused who had abused her, not his father (T92).
In answer to a question from his Honour the trial Judge, the complainant indicated on P9 (in this trial) that the mirror she was talking about was on the sliding door of the wardrobe (T93).
The complainant’s evidence in this trial
At the time of giving evidence in this trial, the complainant was 15. Pursuant to leave being given, she was examined in chief and cross-examined.
In examination in chief the complainant said that she referred to the accused and his siblings as cousins even though they were not blood relatives. She has known the accused all her life. She called his father uncle. She denied that the accused’s father ever touched her inappropriately.
In cross-examination Mr Culshaw put to the complainant the defence case that no sexual abuse had occurred. She rejected each suggestion.
The complainant agreed that whilst she was staying at the accused’s family home, his father was there too. She did not remember whether he had spent a night away attending a funeral in Melbourne with her own father. She was not sure if he was about the house on the occasions when the accused was abusing her. She agreed that the accused’s father was a pastor of her church and a very important man in her community (T53).
Mr Culshaw asked the complainant questions about her evidence of complaint. She did not remember telling her class teacher Mrs Ennis that the last time the accused had done things to her was in the previous Christmas, that is Christmas 2018.
The complainant agreed that on the day after speaking to Mrs Ennis, she spoke to the school counsellor, Deanna Byrne, and told her that the last time the abuse occurred was about a month earlier (T54). The previous month was September 2019.
The complainant also agreed that she had told the counsellor that in a toilet where the accused abused her, he had told her that she had won a prize (T54).
The complainant did not remember telling Detective Sergeant Zacjev that the last abuse occurred on the day her mother returned from Africa (first interview) or at her house before the acquisition of the family dog (second interview) or C’s birthday party (later in the second interview).
The complainant said that she did not remember ever calling the accused ‘uncle’. She agreed that she never thought of him as an uncle because he was her cousin (T55).
Evidence of the complainant’s brother AM
AM is 20. His younger sister Joy is 13, turning 14. The complainant is 15.
AM agreed that he and his sisters stayed at the accused’s family house in 2016 when their mother was away. When asked about the sleeping arrangements at the time, he referred to the house plan of the accused’s house, P4. He said that the accused slept in bedroom five. He himself slept in bedroom four (T61).
AM said that his family acquired their dog after his mother returned from Sudan (T62).
AM said that in bedroom five of the accused’s house, there was a bed and a study table with a computer table on top. He could not remember what else was in the room (T63).
In cross-examination, AM agreed that when his and the accused’s family were together he would usually play with the accused and his most youngest brother. They would play video games together (T64). His two sisters would play with the accused’s next youngest sister.
AM was asked questions about bedroom four in the accused’s house, the one AM said he slept in while his mother was away. He could not remember whether there was a mirror there or whether there was a lock on the door (T66). AM agreed that in the first trial that he could not remember there being a mirror in the bedroom he occupied. Having been reminded about what he said in the first trial, he still could not remember whether or not there was a mirror there. It was not made clear which bedroom he was being asked about in the first trial, although it was not suggested he had nominated a different one in that trial. In final cross examination AM said that he was pretty sure that the accused’s usual bedroom was bedroom 4, but the family had freed up space for him to sleep in that room during his stay (T70).
Evidence of the complainant’s father MM
MM was born in Sudan. He married there in 2004. He migrated to Australia in 2005. His wife and son arrived in 2006. His two daughters and two younger sons were born in Adelaide. When he first arrived in Adelaide he lived with the accused’s father, Michael Brawn and his family for 11 months. He met Michael Brawn before he migrated. After his wife and son joined him, the family moved between various addresses before purchasing their present home in February 2015. His family maintained contact with the accused’s family. He said their family was like his family (T85). They went to the same church where Michael Brawn was the pastor.
MM described his family arrangements while his wife was overseas in September 2016. Essentially his children stayed with the accused’s family except between school pickup and bedtime on weekdays and on the weekends.
MM said that he and Michael Brawn drove to Melbourne for a funeral while his wife was in Africa. They left on a Friday and returned on the following Sunday. MM said that his family acquired their pet dog shortly after his wife returned from Africa.
MM said that he and his family attended the 1st birthday party of C at Bridgestone Park in Brahma lodge. The accused and his family were also there. C is related to the accused’s family. MM said that his family went to the party ‘up to, I think after 5’ (T94). They were there for two or three hours.
MM said that Michael Brawn and his wife came to his house in October 2019 where they discussed the allegations that the complainant had made to the police. It appears that may have been on, or shortly after, the day that the complainant made her disclosures at her school.
In cross examination MM elaborated on the arrangements made for his children while his wife was in Africa. He said that sometimes when he worked overtime, he would ring either the accused’s mother or the accused to pick up his children from school. They would take the children straight to their place (T96). At my request counsel sought to clarify that MM meant that he would approach the accused to collect the children. He said that that was correct. When counsel asked, ‘Matthew or Michael, that is what you said’ he replied ‘no, Michael’ (T97.).
While MM said that he would usually take the children to the accused’s house at around 9pm, he said he would sometimes take them there as early at 5pm (T97). It was put to him that in an earlier statement, and in his evidence in the first trial, he did not mention the earlier time of 5pm. He agreed that that was so, but he maintained that he did sometimes take them there around 5 o’clock (T103).
MM was asked about C’s birthday party in the park. He agreed that if he had seen the accused go into the toilet with the complainant he would have thought it unusual (T107).
MM agreed that at the time of C’s birthday in the park, Michael Brawn was staying at his family’s house because there were ‘some issues’ in his marriage (T111-12). Michael Brawn stayed with them for a few months. Michael Brawn went to C’s party by himself.
MM said that when he and his family arrived at the party he saw the accused there (T112). He had said earlier in his evidence that he got to the party at about 11am to noon (T108). MM disagreed when it was put to him that the accused only arrived at the end of the party when everyone was packing up (T113).
Evidence of Ms Hannah Gregori
Ms Gregori was a behavioural therapist working at the complainant’s school in 2019. She was there to support a student with a disability. On a day in October 2019, she noticed the complainant teary and apart from other students. It was the complainant she saw, although she did not know who she was at the time. She asked the complainant what was making her sad. The complainant told her that sometimes her uncle did things to her that she didn’t like, and she didn’t want him to. She added that he bought her presents that she didn’t want. He took her into his bed with him and did things to her that she didn’t like (T127). The complainant agreed that it was fine for her to tell the class teacher about the disclosures, which she did.
Evidence of Mrs Bethany Ennis
Mrs Ennis said that on 17 October 2019 she was the Year 3 class teacher for the complainant. Around 45 minutes after being told by Ms Gregori that the complainant had made some disclosures to her, she spoke briefly to the complainant. However, because the complainant had a group activity during lunch, there was no further conversation until after lunch. The complainant came to Mrs Ennis’ desk. There the complainant wrote down what she wanted to say. Mrs Ennis spoke to her about what had been written. The gravamen of what the complainant told her was that the complainant’s cousin, whom she called ‘Abbi’, had made her go into her room sometimes and would make her sit in the corner (T132). He did not hurt her, but he made her bleed. She described where she was made to bleed. She pointed to a spot between the legs of a puppet. She told Mrs Ennis that he put his private parts inside. (T133).
Mrs Ennis explained that the health unit tuition given to students by Year 3 included only that babies were made by female eggs and the male sperm. The tuition did not include body parts such as genitalia.
In cross examination Mrs Ellis said that the complainant had not said she bled by reason of being hit (T135). Mrs Ennis did not recall the complainant saying anything that might be interpreted as involving oral sex (T135-6).
Evidence of the complainant’s mother RM
RM said that the complainant went to kindergarten when she was aged three to four. She started school when she was five. She said the accused’s mother would braid the complainant’s hair sometimes at their home and sometimes at the accused’s home.
RM said that she and her family went to C’s 1st birthday party in a park. The accused’s family was there too, including the accused.
In cross examination RM demurred about whether the photos P5 depicted the park where the birthday party was held (T145 and 151).
The accused was not at the party when her family arrived. He came with his family later (T148-9). She was not sure if he came became between 4 and 5pm (T154).
RM agreed it would be unusual if the accused had gone to the toilet with the complainant (T152).
RM agreed that the family dog was acquired in October 2016, after she returned from Africa.
RM said that her family helped clean up after C’s birthday party. She did not distinctly admit that at the first trial her family had left the party at around 4:30-5pm (T155-6). It is an agreed fact that she did say that (P19 para. 10).
The accused’s evidence at the first trial
A transcript of the accused’s evidence at the first trial was tendered (P16). I will refer to that evidence when I discuss the case for the accused. The prosecution also tendered as exhibit P17, the accused’s work timecard which had been tendered at the first trial.
Evidence of Brevet Sergeant Michael Sherratt
Brevet Sergeant Sherratt said that the accused was arrested at his family home on 19 October 2019. He was interviewed at the Elizabeth Police Station. A USB of that interview was tendered as P18 and played. A transcript was marked MFI-P18A. Present at the interview were two uncles of the accused, Erik Brawn and William Achura. I will refer to that interview when dealing with the defence case.
In cross examination Brevet Sergeant Sherratt agreed that he understood that the complainant was alleging that she had been sexually abused in the accused’s bedroom where there was a mirror and there was a lockable door. He was not sure that he knew that at the time the accused was arrested (T165). He did not check those matters at the time of the arrest. He was not aware of any medical examination of the complainant being undertaken.
Brevet Sergeant Sherratt was not aware of the accused producing at his first trial a timesheet from his work suggesting he finished work on the day of C’s birthday at 3:45pm.
Brevet Sergeant Sherratt said that he was aware that the accused’s father Michael Brawn had been previously charged with child sexual offending and that those charges were discontinued against him. He knew that the allegations were made against him by a teenage girl who was living under his roof at the time. He accepted that the failure to disclose that information to the defence was the reason for the re-trial (T173). There has been no subsequent enquiry of Michael Brawn or the person who made the complaint against him (T174).
The defence case
The accused’s interview with police on arrest
The accused’s interview was tendered as part of the prosecution case. It contains some material which the defence relies on. The prosecution also relies on other aspects of the interview.
I now refer to that interview.
The transcript of the interview has numbered paragraphs. The complainants’ allegations were put to the accused (126). When asked who the complainant was, the accused replied at first that he did not know (139) but he corrected himself to explain that he was not sure whether she was a cousin or a family friend (141). He agreed that he and the complainant had been to each other’s homes. He was not sure whether she had stayed at his house for a length of time (181 and 185). He could not remember when prompted by reference to the complainant’s mother being in Africa in September 2016 (191, 193, 195, 199). He agreed that he had had occasion to take the complainant and her sister to and from school (203-209). The accused said he was never alone with the complainant (211). He could not remember the complainant and her siblings staying at his home (234). He denied the complainant’s allegations (243, 247). He agreed that he had a good relationship with the complainant (267).
The accused’s evidence at the first trial – transcript exhibit P16
I will not detail biographical materials. The accused was born in 1998. He was 23 when he gave evidence. He was born is Sudan. He came to Australia in 2003. He knows the complainant’s family. He identified bedroom four as his bedroom in the family house. He left school in Year 12. While at school he started working at KFC at Munno Para. That was in 2014. He worked there until 2017. After leaving KFC he worked for a potato factory in Virginia called Mitolo. There he would work from 5am to 4 or 4:30pm, five or six days a week. That workplace was a 20-minute drive from his home.
The accused said that he would quite often see the complainant’s family. His mother was a family day carer. The complainant and her siblings would sometimes be looked after by his mother if their own mother was working. He had picked up those children from school on two occasions. At his house, the complainant would normally spend time with her own sister and his two sisters.
The accused said that his bedroom door did not have a lock, but the two bedrooms, numbers two and three occupied by his sisters, had one of those ‘twisty locks’ (254). Bedroom five had a plain knob. He identified his doorknob by reference to photographs which in this trial are marked P6 and P8. The doorknob has not been changed since 2015 (254-5).
The accused said that exhibits now marked P9 to P13 depict his bedroom. That is how it looked from 2015 to the present. There have been no alterations to the furniture. There has never been a mirror there nor a chair or a chest of drawers (255-257). There are no drawers you can pull in and out. He never had a computer there. As at the first trial, he still occupied that room (258).
The complainant has never been in that room. The accused denied sexually offending against her.
In respect of C’s birthday at the park, the accused denied being there from around 11:30am. He produced his work timecard, now marked P17, which showed that he started work at 6am on 13 October 2018 and finished at 3:45pm. He said that he worked those hours. After work he drove the 20 minutes to his home. There he had a quick meal, showered and got dressed. He got to the park at about 4pm as things were being packed up. He stayed there for 10 to 15 minutes. He could not remember if he saw the complainant’s family there (267).
The accused remembered the complainant and her siblings staying with his family when their mother went to Africa, but he acknowledged that he could not remember that at the time of the interview with the police (271-2). He was not sure whether his father went with the complainant’s father to Melbourne during that time, although he allowed for the possibility. He agreed that his father was not living at home towards the end of 2018. He was living with the complainant’s family. That was the case at the time of C’s 1st birthday part (272-3).
The accused’s evidence in the present trial
I will not canvass evidence in chief which is essentially the same as in the first trial.
The accused confirmed that on the day of C’s birthday in the park he finished work at Mitolo at 3:45pm. He confirmed the details in his work timecard (P17). He said that it took about 20 minutes to get from his workplace to his home and a further 20 minutes to get from his home to the park. In between he had a shower and ate a meal. He said he believed he got to the park around 5pm, not 4pm as he had said in the first trial (T187). The accused confirmed his familiarity with the park. He estimated the distance between the toilets and the barbeque as about five metres. He denied offending against the complainant there or anywhere else.
The accused explained that C is his cousin by reason of their fathers being brothers. When asked what C called him, he answered ‘he calls me “uncle” – “cousin” sorry’ (T189). When the question was repeated, he replied ‘cousin’. He said that the complainant never called him uncle. He said that although there is no blood relationship between his and the complainant’s families, the children in each would call the parents of the other ‘uncle’ and ‘aunty’.
The accused explained his inability to remember in his police interview that the complainant had stayed with his family while their mother was in Africa. He said at the time of his arrest it was not memorable (T193). He was feeling shocked at his arrest.
The accused said that in 2016 he was working at both KFC and Dominos. He was working as a casual employee at both. At Dominos he would work from 5pm until 12am. At KFC he worked changeable hours, including 8am to 1pm and 12 to 3 (am and pm were not specified) (T193-4).
In cross-examination it was put to the accused that in his police interview he was trying to distance himself from the complainant by not remembering at one stage who she was. He denied that. He said he was simply unsure whether she was a real cousin.
The accused agreed that it was not uncommon for younger Sudanese people to address their elders as ‘uncle’ and ‘aunty’, notwithstanding that they might not be blood relatives. He could not identify an age difference between elder and younger which might give rise to that form of address (T201-2).
The accused agreed that when the complainant was staying at his house he was working variable hours which included nightshifts (T207-8). He agreed that at that time, he might have picked up the children from school once or twice (T209).
Good character evidence
Mr Culshaw tendered as exhibit D20 a transcript of good character evidence given by Ms Jessica Woko at the first trial.
Addresses
Mr Allen for the prosecution
Mr Allen submitted that I may only find the accused guilty of the charge if, having carefully scrutinised her evidence, I am satisfied beyond reasonable doubt of the credibility and reliability of the complainant’s account. Nevertheless, I should bear in mind that she was only nine when she took part in the prescribed interviews with the police. She was 11 when giving evidence in the first trial and was only 15 now.
Mr Allen drew attention to directions which I must give myself. The first relates to uncharged acts. Allegations of sexual offending before the accused’s 18th birthday on 1 April 2016, are uncharged. That evidence is led for propensity purposes to indicate a willingness on his part to act on a sexual attraction he had for the complainant.
Further, the evidence is led for non-propensity purposes namely, to demonstrate that the charged offending does not come out of the blue, to explain why the complainant might submit without complaint to the accused’s demands and to explain why he might feel emboldened to continue offending. It might also explain the relationship that the accused had with the complainant and the atmosphere that existed in the houses where the offending took place.
Mr Allen identified the evidence of the uncharged acts.
The first is the allegation that when the complainant was at her ‘old house’, just before she finished kindergarten, the accused put his penis on the inside of her vagina. Her sister knocked on the door. That allegation appears in her second prescribed interview.
The second uncharged act is the allegation that in February of her Reception year (2016), the accused took her into his bedroom and made her suck his penis. This is alleged to of happened twice on that day.
The third is said to have occurred at the accused’s house a few months before the complainant’s mother went to Africa. It is the allegation of fellatio where the complainant described the act as being like eating a hairy hotdog.
The fourth is when the complainant says that she was probably five, before her family got their dog. She said that at her house the accused undressed her and made her do the ‘up and down thing’ with their private parts close. That made the bed squeak.
Mr Allen submitted that I would have to give myself a direction about prior inconsistent statements. In that connection, I would have to consider whether these inconsistencies relate to peripheral or central issues.
Mr Allen submitted that it would be appropriate for me to give myself a forensic disadvantage direction.
He said I would have to give myself a complaint direction.
The evidence of the complainant’s initial complaint to Ms Gregori and the elaboration to Mrs Ennis explain how the allegations first came to light and, to a limited extent, it demonstrates consistency of conduct. The complaint to Mrs Ennis may be understood to relate to anal intercourse, although no other acts were identified. I would have to bear in mind the inconsistency between the two complaints, the reference to ‘uncle’ in the first and ‘cousin’ in the second.
Mr Allen submitted that I should give myself a good character direction in light of the tender of the transcript of the good character evidence given at the first trial.
Mr Allen turned to the four elements of the charge.
The first is that the accused maintained a relationship with the complainant. In this case, it is that of a family friend.
The second is that at the relevant time the accused was as adult. That would apply to any offending proved after the accused’s 18th birthday on 1 April 2016.
The third is that the complainant was aged under 17. She is only 15 now.
The fourth element is that the accused engaged in 2 or more unlawful sexual acts with the complainant.
Mr Allen handed up a memorandum listing evidence of eight unlawful sexual acts. I adopt a shorthand way of identifying the acts, the criminal offence they represent and the evidentiary source of the allegation.
The alleged acts are as follows:
1.‘The fourth/worst time’, unlawful sexual intercourse (penile and anal intercourse), first interview (MFI-P1A, 314, 541 and 542).
2.Forced fellatio (the accused said ‘I don’t care’), unlawful sexual intercourse (fellatio), first interview (MFI-P1A, 482).
3.Forced fellatio (the accused said ‘swallow’), unlawful sexual intercourse (fellatio), first interview (MFI-P1A, 488).
4.‘He sucked my private part’, unlawful sexual intercourse (cunnilingus), first interview (MFI-P1A, 610, 642).
5.Forced fellatio (the accused shouted at her), unlawful sexual intercourse (fellatio), first interview (MFI-P1A, 610, 622).
6 & 7.‘Banana thing in her hand’ forced fellatio, indecent assault and unlawful sexual assault (fellatio).
8.Toilet in the park, unlawful sexual intercourse (cunnilingus), second interview (MFI-P2A, 294).
Mr Allen submitted that the complainant’s presentation during the interviews and in court, were those of an articulate young girl whose account made sense. While articulate, her use of words to describe sexual matters was credible for someone her age. For example, she said the ‘banana juice’ tasted ‘disgusting’ and smelt like ‘the worst…ever’. The first anal intercourse was ‘the worst’. Fellatio was like eating or sucking ‘a hairy hotdog’. The accused’s penis was ‘very straight and very hairy’. Mrs Ennis explained that by Year 3, students only had very rudimentary instructions in reproduction, without any reference to genitalia.
Mr Allen submitted that there can be no doubt that the complainant was sexually abused. The remaining question is whether the evidence established that the accused was the perpetrator.
That raises the question about whether Ms Gergori might be mistaken in her account of the complainant nominating her ‘uncle’ as the perpetrator. There can be no doubt about Mrs Ennis hearing a complaint about the accused. The complainant provided his real name, “Matthew”, and his nickname “Abi”.
Mr Allen submitted that there can be no doubt that throughout her evidence of abuse in the accused’s family home, the complainant was referring to it occurring in the accused’s bedroom. The complainant expressly denied in cross-examination that the accused’s father had abused her. There can be no credible suggestion of the complainant mistaking the son for the father.
If the complainant did in fact tell Ms Gergori that it was her uncle who abused her, that might have been an understandable slip of the tongue. In his own evidence in this trial, the accused made such a slip (T189). The accused’s own mistake in saying his cousin C called him ‘uncle’ might be more easily understood, given the practice in the Sudanese community of younger relatives calling older one’s ‘uncle’ or ‘aunty’ out of respect, even if that was not the real relationship. C is 19 years younger than the accused. The complainant is 12 years younger.
Mr Allen turned to the defence case. He submitted that the accused had deliberately distanced himself from the complainant, downplaying interactions he undoubtedly had with her. That was so in his arrest interview where he professed no memory of the complainant ever having stayed at his family home.
Mr Allen submitted that the accused has downplayed his interactions with the complainant at C’s party in the park. It may be that the complainant’s father was wrong when he said that the accused was at the park in the morning. The accused’s timesheet tells against that. Nevertheless, there was time that day when both the accused and the complainant were at the park. The complainant’s allegation of offending in the toilet suggests it was an incident lasting only two or three minutes. The complainant’s account of the offending is, Mr Allen submitted, compelling.
Mr Allen acknowledged that even if I were to reject the accused’s evidence, I would still have to go back to evaluate the truthfulness and the reliability of the complainant’s evidence. He submitted that once that evaluation is undertaken it is unimaginable that the complainant was not abused as she said she was. I should find the accused guilty of the charge.
Mr Culshaw for the defence
Mr Culshaw submitted that the evidence in the case demonstrates that the only allegation tethered to a particular time, is the allegation of the offending at the park, did not happen. We know, he submitted, that the accused was working from 6am to 3:45pm on 13 October 2018. The accused’s timesheet establishes that. The complainant’s father was wrong when he said that the accused was at the park in the late morning. The complainant must be wrong too.
The rest of the prosecution evidence may be seen through the prism of those errors. On that view, the accused was probably not at the party until it was being packed up. It is improbable that the accused would have taken the complainant the five or 10 metres from the location of the party to the toilet without being noticed.
The accused’s timecard is the one piece of truly objective evidence which firmly supports the defence case.
Mr Culshaw submitted that in this case there is no basis upon which the accused’s denials to the police and in this court can be rejected. Any suggestion of him deliberately distancing himself from the complainant in his arrest interview has to be understood in the context of being in shock by his arrest. Once he became more comfortable in the interview he became forthcoming in his contacts with the complainant, including, for example his acknowledging that on occasions he had collected the complainant and her siblings from school.
Mr Culshaw handed up a written outline of his submissions. He referred to paragraph 39 which listed reasons why, in his interview with the police, the accused might not have had at the forefront of his mind the time when the complainant stayed at his family home.
The complainant and her siblings were basically only sleeping there from bedtime to school time. The accused was working shifts at two casual jobs. Even when the children were not actually staying at the accused’s place, they were regular visitors. At such time, the boys and girls from both families tended to gather separately. The complainant’s stay at the accused’s place was three years before the accused was interviewed.
Before turning to the evidence in the first trial, Mr Culshaw said he did not rely on the photographs of the doorknobs in exhibits P6 and P8. He acknowledged that their provenance could not be demonstrated. There is no evidence when the photographs were taken or by whom. Mr Culshaw said he did however rely on the accused’s evidence about his bedroom. The accused said there was no lock on his door and no mirror or dresser.
Mr Culshaw submitted that the accused suffers from the forensic disadvantage that no police investigation of his bedroom was taken.
Mr Culshaw submitted that there were creditable aspects to the accused’s evidence. An outline of this submission is at paragraph 46.
The accused did not seize on the brother’s evidence that he slept in bedroom four of the accused’s house while his mother was in Africa. The complainant’s brother said that he did not remember a mirror or a lock in that bedroom. The accused says that AM is wrong about sleeping in that room, but it would have helped his case to assert he was right.
Mr Culshaw submitted that it was significant that the accused acknowledged that the complainant was a regular visitor to his family house. The accused did not overstate the time it took him to get from work to the birthday party in the park. He did not know that the complainant’s family might still have been at the site of the family as it was being cleared up. He did not deny going to the toilet.
Mr Culshaw submitted that I may use the evidence of the accused’s good character to make it less likely that he committed the offence and to bolster his credit.[2]
[2] Nelson (A Pseudonym) v The King [2025] SASCA 79.
Mr Culshaw made submissions about the complainant’s evidence. He did not dispute the prosecution submission that the complainant’s graphically, accurate description of sexual matters painted a relatively compelling picture. While not conceding that the complainant did suffer sexual abuse, there were, he submitted, troubling aspects of inconsistency and implausibility about her evidence. Sometimes her evidence started as a reasonably credible account, but it became less so as it went on.
Mr Culshaw submitted that the best example of the complainant contradicting herself during her account of an incident occurred during the description of the uncharged act in her own family home. He set out that argument in paragraph 10.6 of his outline. In her second police interview, the complainant said that the accused’s private part was very near hers (MFI-P2A, 206). The accused said, ‘do it more’ (214). Later, at 237, she said that she ‘forgot to tell’ that the accused’s penis ‘kind of went inside’ and ‘really hurt me’ and the accused kept saying ‘I don’t care if it hurts you’ (T40).
Mr Culshaw referred to paragraph 10 of his outline where he set out 10 suggested inconsistencies in the complainant’s behaviour, including the one just referred to. I will reproduce that paragraph of the outline:
Frailties in the evidence of the complainant
Inconsistencies
10. [the complainant’s] version of events was beset by material inconsistencies that must call into question whether the events of which she gave evidence really occurred at all:
10.1 the timing of the first occasion of sexual activity: five years old in reception or in kindergarten, and the confusion that followed in the evidence (MFI P1A at [79]; [201]-[209]);
10.2 the commencement of a description of anal sex when describing the first day of sexual activity (albeit that by this time, some doubt had been introduced about the first day), before changing course and saying that happened the fourth time (MFI P1A at [227]);
10.3 the description of penile-vaginal intercourse on the first day of sexual activity went from "just a little bit" (MFI P1A at [318]) to "the whole bit like kind of went in it, like really deep and that and ii actually hurt me a lot (MFI P1A at [322]);
10.4 having commenced her description of the "fourth occasion" with a relatively vivid description of what she was wearing, and her jeans being ripped (MFI P1A at [476]) and giving a specific recollection of having PE at school on a Tuesday (MFI P1A at [492]). She went on to say that it was a casual clothes day at school and said she was not wearing jeans, before returning to jeans (MFI P1A at [498]-[500]). Later, she remembered that it was not a school day, but a Saturday (MFI P1A at [534]). Finally, she said that she did not remember the exact day (MFI P1A at [572]).
The problem here is not that she could not remember what day it was. That is unremarkable. The problem is the certainty with which she expressed a number of different and irreconcilable facts. It calls into question her reliability, at least. It means the finder of fact cannot be confident that the existence of detail in her recollection is supportive of its accuracy. It means the finder of fact cannot be confident that when she said things with confidence, that makes them likely to be true;
10.5 on that "fourth occasion", [the complainant]commenced by describing the anal sex as having occurred on the bed (MFI P1A at (482], the last paragraph to [488]), but later described it as having occurred up against the dresser (MFI P1A at [538]);
10.6 in respect of an occasion at the [M] house, [the complainant] described [the accused’s] private part being "very near" her private part (MFI P2A at [206]) and him saying "do it more" (MFI P2A at [214]). She said that [the accused’s] private part was about an inch away from hers (MFI P2A at [236]). Then, in response to a leading question, her evidence immediately changed. She said she had ''forgot to tell" the interviewer that [the accused’s] penis "kind of went inside" and "really hurt me" and that [the accused] kept saying "I don't care if it hurts you" (MFI P2A at [240]);
10.7 as to the last time that any sexual abuse occurred, [the complainant] told:
10.7.1. Mrs Ennis (on 17.10.19) that the last time of abuse was the previous Christmas, i.e. Christmas 2018 (not accepted by [the complainant] T53, see Ennis Tl34);
10.7.2. Deana Byrne (the very next day 18.10.19) that the last incident was about a month ago, i.e. about September 2019;
10.7.3. Sarsha Zacher in her first interview (the very next day again, 19.10.19) that the last incident was when her mother was returning from Sudan, i.e. in September 2016 (MFI P1A at [605] [608]);
10.7.4. Sarsha Zacher in her second interview (between two and three weeks later, 07.11.19) that it was before the [M] family had its dog (MFI P2A [I 93]-[194] introduces the topic, and the timing is confirmed [247]-[258]). The [M] family got the dog in October 20I 6 (Roes TI 52-153; [MM] T92; MFI P1A [52]-[59]). That puts this alleged event in October 20 I6 at the latest; and
10.7.5. immediately thereafter, Sarsha Zacjer that it was at [C’s] party (MFI P2A at [339]).
The changing version about the timing of the last occasion of abuse is problematic, but the most problematic aspect of it is that [the complainant] gave three different versions in three days after making her initial complaint. The differences were not peripheral or differences of detail. They were serious and go to the heart of her credit and reliability.
10.8the description of the locking mechanism of the bedroom door. In the police interview, [the complainant] said that it locked with a key (MFI P2A at [118]). In her evidence at the first trial, not only did she give a different version, but she denied ever saying anything about a key (MFI P3A at T57- 58). Then later, when her earlier version was put to her, she expressly adopted the key as being true (MFI P3A at T76-77);
10.9 the length of time during which [the complainant] was bleeding. In the police interview, [the complainant] said that it was one or two weeks (MFI P1A at [448]-[462]). In her evidence at the first trial, she said that the bleeding was for about five hours (MFI P3A at T64);
10.10.the occasion of the alleged blood nose (MFI P2A at [48]; [92]). This sounds implausible to start with, and was denied by [the complainant] in her evidence at trial, before she did an about face and specifically remembered it (MFI P3A at T75-76). It will also be recalled that she expressly denied this type of violence to Mrs Ennis (T135).
Turning to the evidence of complaint, Mr Culshaw submitted that it was unlikely that Ms Gregori had mistakenly reported the complainant saying that her uncle abused her. Ms Gregori said it was the only time she had ever received such a report from a child, and it was memorable. What is more likely, Mr Culshaw submitted, was that the complainant has changed her story between the two complaints.
Mr Culshaw submitted that the one person the complainant did call uncle was Michael Brawn. He had the same contact with her as the accused did, including at C’s party in the park. The complainant said that while staying at the accused’s place, there was abuse every night except one. There being one exception, or one absence from the house, fits more neatly with Michael Brawn than it does with the accused. Michael Brawn was away for just two nights when he went to Melbourne for a funeral. On the other hand, the accused was a pizza delivery driver working for Domino’s. He was delivering pizzas from 5pm to midnight. It is unlikely that he had only one nightshift in the three weeks that the complainant was staying at his place. Michael Brawn was a pastor, an important person in the community, a man against him would not be easy to make a sexual allegation.
Mr Culshaw submitted that the accused suffers from a forensic disadvantage. If, as the complainant says was the case, there were occasions of shouting or screaming at the time of offending, there is now no way of knowing who might have been home at the time. Likewise, the inability to investigate who might have seen the complainant vomiting, or who might have noticed her discarded underwear on the occasion an item was left. The first offending is said to have occurred before 2016 when the complainant was in kindergarten. The accused was not arrested until October 2019.
In conclusion, Mr Culshaw submitted that the defence case ought to be accepted, or at the very least, not excluded as reasonably possible. The complainant’s account should not be accepted beyond reasonable doubt.
I note that no written or oral submission was made by either counsel regarding Brevet Sergeant Sherratt’s unchallenged evidence in cross examination that he believed Michael Brawn had been previously charged with child sexual offending against a teenage girl who was living under his roof. Brevet Sergeant Sherratt went on to say that he understood the charges were withdrawn. He believed that the failure to disclose that information to the defence was the reason for the re-trial (T173).
Noone submitted how that evidence may or may not be used. That said, Mr Culshaw did make the submission that Michael Brawn had the same opportunity to offend against the complainant as did the accused, and the complainant’s evidence about there being only one night during the stay in the Brawn household more neatly fits with Michael Brawn than it does with his son.
I conclude that the only use I should make of that evidence is that the defence suggestion of the possibility of an alternative offender cannot be dismissed as unfounded speculation.
Directions
Discreditable conduct – ss 34P and 34R of the Evidence Act
I will not repeat the detail of the discreditable conduct evidence lead in this case. I have recited the items in my account of Mr Allen’s address. Essentially it consists of the offending which is alleged before the accused turned 18 on 1 April 2016.
The prosecution leads the evidence for propensity purposes, to demonstrate that the accused acted upon a sexual attraction towards the complainant. It is also lead for non-propensity purposes. Namely that the charged offending does not come out of the blue, the earlier offending might explain why the complainant complied with the accused’s wishes and did not complain, and it might explain why the accused was emboldened to continue offending.
I bear in mind the provisions of s 34P of the Evidence Act.
No evidence is admissible if it is used to suggest that the accused is more likely to have committed the charged offence because he has engaged in discreditable conduct. That is impermissible evidence pursuant to s 34P(1). It has been described as ‘bad person reasoning’.[3]
[3] R v C, CA [2013] SASCFC 137, [79].
I must be satisfied that the probative weight of the permissible reasoning outweighs any prejudicial effect it may have on the accused (ss (2)(a)). The court in Eddy (a Pseudonym) v The King [2024] SASCA 115 [67] described prejudicial effect in these terms:
The prejudicial effect of evidence is the risk that the jury will use the evidence improperly, either by engaging in an impermissible mode of reasoning, attributing disproportionate weight to the evidence, or by becoming distracted from the real issues by reason of an emotional response to the evidence.
Where the evidence is admitted for a propensity purpose the evidence must have strong probative value having regard to an issue in the trial (ss (2)(b)).
The permissible and impermissible evidence must be able to be kept separate and distinct (ss 3(b)).
The probative value of the evidence is to be assessed taking the evidence at its highest and having regard to other evidence in the case (Eddy (a Pseudonym), ibid [69]).
I do not regard the evidence of discreditable conduct as being essential to the process of leading to a finding of guilt (s 34R(2)).
Pursuant to s 34R(1) I identify but do not repeat the permissible uses of the discreditable conduct evidence as those listed by Mr Allen, that is, both the permissible propensity and non-propensity purposes. I do not use the discreditable conduct evidence for bad person reasoning.
My findings about the permissible uses of discreditable conduct were only processes of reasoning which aid in proof of the facts in issue. I do not equate that reasoning with proof of the facts in issue. That requires an analysis of the credibility and reliability of the prosecution witnesses, most particularly the complainant.
Prior inconsistent statements
If a witness says something in court which is different from what they have said in an earlier statement, that inconsistency may be used to adversely affect their credit. The earlier statement may not be regarded as the evidence of its truth.[4] That principle is more apt to an earlier out of court witness statement. In this case, the complainant’s interviews were conducted pursuant to 13BA of the Evidence Act.
[4] R v Baltensperger (2004) 90 SASR 129.
Subsection 6(b) provides that in a jury trial the judge must warn the jury not to allow the admission of evidence in that form to influence the weight to be given to the evidence. That might indicate that other such statements may be used for their truth. That certainly seems to be the position adopted by the defence in this case. For present purposes I will treat all alleged inconsistencies as affecting only the credit of the complainant.
I bear in mind, without repeating, the inconsistencies listed by Mr Culshaw in paragraph 10 of his outline.
Forensic disadvantage
I bear in mind the forensic disadvantage suffered by the accused as a result of the delay in the allegations coming to his attention. There is a delay of about four years between the allegations earliest in time and the accused being arrested in October 2019. Earlier investigations might have led to medical examinations of the complainant, the features of the accused bedroom, and the identity of people in the houses where the offending is said to of taken place.
Complaint – s 34M of the Evidence Act
In respect of the initial complaint made by the complainant to Ms Gregori and the elaboration given to Mrs Ennis I give myself the warnings contemplated by s 34M of the Evidence Act.
No statement or suggestion has been made that the delay in making a complaint is, of itself of probative value in relation to the credibility and consistency of conduct (subsection 2). While delay of itself may not be the subject of criticism, the reasons, or lack of them, for the delay may be subject to adverse comment.[5] I give myself the directions required by subsection 4. The evidence is admitted to show how the allegations first came to light (subsection 4(a)(i)). The evidence is capable of showing a degree of consistency of conduct on behalf of the complainant. It must also be considered whether it demonstrates inconsistency. That is alleged in this case in respect of the complaint to Ms Gregori. The complainant identified the her uncle as the perpetrator. I find that there is a degree of consistency of conduct with regard to the elaboration to Mrs Ennis (subsection 4(a)(2)).
[5] R v Jones [2018] SASCFC 80 [117-118].
The complaint evidence is not admitted for the truth of what is alleged (subsection 4(b)).
I give myself the direction required by subsection 4(c). There may be varying reasons why a complainant might make a complaint at a particular time to a particular person. It is understandable that the complainant might be reluctant to complain about offending by a family friend, and instead confide in a trusted person, such as a teacher. In this case, Ms Gregori approached the complainant who appeared to be distressed. It is understandable that the complainant might make disclosures in those circumstances.[6]
[6] Kendall v The King [2024] SASCA 54.
Motive to lie
In this case there is no evidence of a motive for the complainant to lie about the charged offence. None was suggested in counsels’ addresses, but the absence of a motive to lie does not strengthen the prosecution case. Lies may be told for unknown reasons. While it is open for the accused to suggest a motive to lie, there is no onus upon him to do so, much less to prove one. The burden of proving its case beyond reasonable doubt is on the prosecution throughout.
Consideration
Credibility and reliability of witnesses
The complainant
In her two prescribed interviews and in her evidence in the two trials, the complainant spoke in such detail about sexual matters that it is hard to imagine how she could have done so without having had the experience as she said she did. Her articulate descriptions of the events, using the language of a child are compelling.
That said, there are obstacles which made her otherwise credible accounts troubling. There is force in the defence position that it is unlikely that the birthday party allegation happened as the complainant said it did. It is very likely that the accused was working from 6am until 3:45pm that day. It is unlikely that he got to the park before 5pm when the party was winding up. It would be surprising if he was able to go to the toilet with the complainant unnoticed by anyone. The toilet was only five to 10 metres from where the party had been set up. The complainant and her parents are likely to be wrong when they say that the accused was there in the morning.
It is all too well recognised that sexual offending against children can occur in brazen circumstances. It happens in houses where other people are about. Such offending can and does occur stealthily. Whether by reason of threats or rewards, offending occurs in near silence without anyone noticing. But the prosecution case here is that on occasions there was shouting and screaming during the offending. The complainant’s nose was bloody. She went to the toilet vomiting. She drew her aunt’s attention to bleeding from her bottom. People knocked on the accused’s door. His mother and his brother did that.
The complainant gave a detailed account of the accused’s bedroom door being lockable with a key retrieved from a third drawer of a dresser. Other evidence would suggest that the accused’s door did not lock. There was no drawer and no dresser. The complainant said she was pushed up against a mirror, but other evidence would suggest that there was no mirror.
The initial complaint to Ms Gregori nominates the complainant’s uncle as the perpetrator.
These obstacles have to borne in mind when weighing up otherwise credible evidence from the complainant.
The complainant’s parents
The complainant’s parents gave evidence about what, in the end, are uncontroversial events involving both families. They spoke about the interactions between the families and the circumstances about the mother’s trip to Africa. The one topic upon which there is controversy about their evidence is their account of the accused being at the birthday party in the morning at the park. They say that the accused was there during the day. In that respect, for reasons I have already mentioned, I find they are likely to be wrong.
The complainant’s brother
The complainant’s brother’s evidence did not materially advance an understanding of critical events in the trial. I think it likely that when he said he slept in the accused’s former bedroom while his mother was in Africa, he was mistaken.
Ms Gregori and Mrs Ennis
I find that each of the complaint witnesses did their best to recall what the complainant said to them. I think it unlikely that Ms Gregori was mistaken when she said that the complainant told her that her ‘uncle’ abused her. On the other hand, I do not find that as a fact the complainant meant to identify anyone other than the accused. She undoubtedly told Mrs Ennis it was the accused. It may be that she said ‘uncle’ by reason of the age difference between her and the accused. On the other hand, the reference to Ms Gregori about an uncle giving her presents she did not want, is unlikely to relate to the accused.
The accused
I treat the evidence of the accused in the same way that as I treat the evidence for other witnesses. However, I must bear in mind the evidence of his good character. That evidence might make it less likely that he committed the offence and it may bolster his credit. His evidence consists largely of denials of the allegation. That is understandable given the forensic disadvantages I have already mentioned. I think there is some force in the prosecution submission that, at times in his arrest interview, the accused sought to distance himself from the complainant. On the other hand, Mr Culshaw refers to other aspects of his evidence which suggests frankness. The accused acknowledged picking the complainant and her siblings up from school. He did not seize upon the complainants’ brother’s error in saying where he slept while his mother was in Africa.
Findings
Even if I were to reject the accused’s evidence I would return to the evidence of the prosecution witnesses, particularly that of the complainant, to see if I am satisfied beyond reasonable doubt of its credibility and reliability.
In this case, while I find the complainant’s evidence credible, even likely, that she was sexually abused by someone, I am not able to be satisfied beyond reasonable doubt that it was the accused who is the perpetrator. I am not in the position of finding that the accused’s evidence is not reasonably possibly true.[7] Accordingly, I find the accused not guilty.
[7] Douglass v The Queen [2012] HCA 34.
Verdict
Maintaining an Unlawful Sexual Relationship with a Child – not guilty.
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