R v C - [2021] SADC 124

THE DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v C
Criminal Trial by Judge Alone
[2021] SADC 124
Reasons for the Verdicts of her Honour Judge Chapman
16 November 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
The accused is charged with committing sexual offences against the complainant on one occasion between August and October 2019. The accused was aged 19. The complainant was aged 12 or 13.
The offending is alleged to have occurred in the complainant's bedroom on one of two occasions when the accused visited the house. The accused and the complainant had not seen each other for about four years. It is alleged in 2019 the accused sexually abused the complainant when they were both younger. The accused denied the commission of the uncharged acts and the offences.
Verdicts: The accused is guilty of all four counts.
Evidence Act 1929 (SA) ss 34M, 34P(2)(a), referred to.
R v S, DD (2010) 109 SASR 46; R v Szejnoga (1988) 199 LSJS 97 at 102, applied.

R v C
[2021] SADC 124

The accused is charged with four sexual offences which are alleged to have been committed on one occasion between 16 August 2019 and 20 October 2019. The accused was then aged 19. The complainant, NJ, was then aged 12 or 13. There is a family connection between the complainant and the accused. The complainant’s mother has a cousin who is the accused’s half-sister.
The accused elected for trial by judge alone.
It is alleged that the accused committed the offences in the complainant’s bedroom on an occasion when he visited the complainant’s home on either 17 August 2019 or 11 October 2019. It is alleged that the accused had sexual intercourse with NJ by performing an act of fellatio upon him (count 1[1]), indecently assaulted NJ by touching his penis (count 2[2]), committed an act of gross indecency by allowing NJ to touch the accused’s penis (count 3[3]) and attempted to have sexual intercourse with NJ by trying to insert his penis into NJ’s anus (count 4[4]).
[1]     Unlawful Sexual Intercourse with a Person under 14 years (Section 49(1) of the Criminal Law Consolidation Act 1935).
[2]     Aggravated Indecent Assault (Section 56(1) of the Criminal Law Consolidation Act, 1935).
[3]     Gross Indecency (Section 58(1) of the Criminal Law Consolidation Act, 1935).
[4]     Attempted Unlawful Sexual Intercourse with a Person under 14 years (Section 49(1) and 270A of the Criminal Law Consolidation Act, 1935).
At trial, the evidence of NJ was admitted[5] in the form of (1) an audio‑visual recording of an interview of NJ by police on 17 November 2019[6] and (2) an audio‑visual recording of an interview of NJ by police on 3 June 2020[7]. NJ also gave evidence in court after permission was granted for the prosecution to further examine him and for the defence to cross-examine him.
[5] The order was made pursuant to s 13BA(1) of the Evidence Act 1929.
[6] Exhibit P1. The transcript is an aide memoire, MFI P1A.
[7] Exhibit P2. The transcript is an aide memoire, MFI P2A.
The prosecution also called the complainant’s mother (TJ), the accused’s half-sister (NC) and the investigating officer, Detective Nigel Sweetman.
The accused elected not to give or call any evidence.
The elements of the offence
The prosecution has the onus of proving each element of each offence beyond reasonable doubt. Because the complainant was a child at the time of each of the alleged offences, he is legally incapable of consenting to any of the alleged acts. His consent or lack of consent to the alleged acts is not an issue.
Count 1: Unlawful Sexual Intercourse with a Person under 14 years
This offence has two elements:
1. The accused had sexual intercourse with the complainant.
The sexual intercourse alleged is that the accused performed an act of fellatio upon the complainant. An act of fellatio is an act of ‘sexual intercourse’.
2. The complainant was under the age of 14 years at the time of that act.
There is no dispute the complainant was under the age of 14 years at the relevant time. He was born on 26 September 2006. He was aged 12 on 17 August 2019 and aged 13 on 11 October 2019.
Count 2: Aggravated Indecent Assault
This offence has three elements.
1.The accused assaulted the complainant. The assault alleged is that the accused touched NJ’s penis.
2.The assault occurred in circumstances of indecency. There must be a sexual connotation.
3. The complainant was under the age of 14 years at the time of the act.
Count 3: Gross Indecency
This offence has five elements.
1.The accused committed an act. The act alleged is that the accused caused NJ to touch his penis.
2. The act was committed in the presence of the complainant.
3.The complainant was under the age of 16 years at the time of the alleged act.
4. The act was indecent.
5.The indecency was gross. The indecency must be something more than minor or trivial.
Count 4: Attempted Unlawful Sexual Intercourse with a Person under 14 years
This offence has three elements.
1.The accused committed an act or acts sufficiently proximate to an act of sexual intercourse in the sense that the act or acts were not merely preparatory. The act alleged is the accused tried to put his penis into NJ’s anus.
2.At the time of that act or acts, the accused intended to commit an act of sexual intercourse.
3. The complainant was under the age of 14 years at the time of the act.
Issue
There is no dispute that if the alleged acts in fact occurred, the allegations would satisfy the elements of each of the offences. The issue is whether the prosecution has proved beyond reasonable doubt that the alleged sexual act the subject of each offence did in fact occur. The defence case is that none of the acts occurred.
Proof
The prosecution has the burden of proving each of the offences. There is no onus on the accused to prove anything. He has the presumption of innocence in his favour. The prosecution must prove each element of an offence to the standard of beyond reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt or that the accused is possibly or even probably guilty.
The accused elected to remain silent at trial. That is his legal right. I do not draw any inference adverse to the accused because of his exercise of that legal right.
The accused participated in an interview with the police on 18 November 2019. He denied committing any sexual offences. By choosing to answer police questions, he took on no onus of proof. He is not required to prove his innocence. The prosecution must prove his guilt beyond reasonable doubt.
The prosecution case
The prosecution case relied solely upon the evidence of NJ to prove each of the offences.
The prosecution alleges that from about 2010 to 2015, the accused engaged in sexual acts with the complainant during sleepovers at his half‑sister’s (NC’s) house. Those uncharged sexual acts occurred when the accused was a youth. The acts involved the accused touching the complainant’s penis, the complainant touching the accused’s penis and the accused performing fellatio on the complainant. The sleepovers stopped in about 2015 when the complainant was about nine and the accused was about 15. The prosecution called evidence from the complainant, the complainant’s mother and the accused’s half-sister in relation to the uncharged acts and the surrounding circumstances.
From 2015 to 2019, there was no contact between the accused and the complainant’s family.
The offences are alleged to have occurred on one of the few occasions when the accused visited the complainant’s house in 2019, namely on 17 August 2019 or 11 October 2019. The prosecution called evidence from the complainant and the complainant’s mother in relation to those visits.
On 17 November 2019, the complainant made a complaint to his mother. The complainant’s mother had been told by a friend that the complainant had indecently assaulted the friend’s son and the complainant’s younger brother. That information prompted the complainant’s mother to question the complainant. She asked the complainant where he had learnt about that sort of behaviour. The complainant told his mother about sexual acts committed by the accused. The complainant and his mother gave evidence about the complaint.
Evidence of the uncharged acts
All of the uncharged acts are alleged to have occurred at NC’s house during a period between 2010 and 2015.
The complainant’s evidence
In the first interview, the complainant told Detective Sweetman that the person who had been sexually abusing him was the accused, ‘it’s been normally been happening at, at my cousin’s house’.[8] The accused was probably around 15 years of age. He said the accused started playing with the complainant’s ‘willy’ and the complainant was touching the accused’s willy as well. He said, ‘and that’s practically it. He also sucked mine’.[9] It happened every single time the accused came over, apart from one time, that is ‘the sucking and playing’.[10] The complainant said the accused did not speak when it happens. He knew that it was time for things to happen because the accused starts ‘squishing his and starts squishing mine’.[11]
[8]Exhibit P1, line 262.
[9]Exhibit P1, line 298.
[10]Exhibit P1, line 386.
[11]Exhibit P1, line 462.
Brevet Sergeant Julie Fisher interviewed the complainant on the second occasion. She asked the complainant for more information about what happened with the accused when the complainant stayed at NC’s house. He said he would go to NC’s house once a fortnight, then it started to slow down and eventually stopped because she is married now and has a couple of children.
The complainant said that at the beginning they normally did not do anything during the day. They used to play games during the day. He said he would get along ok with the accused. He does not remember how the sexual stuff with the accused started. He thought he was five.
At night time they shared a bed because they did not have any other beds ‘and then he started to play with my willy’.[12] That was ‘practically it’. It happened multiple times, practically every night he went there with the accused there.
[12]Exhibit P2, page 5, line 41.
There was nothing different that happened at NC’s house that enabled him to remember a specific occasion. The accused used to play with the complainant’s willy all the time.
They eventually got a new bed at NC’s house. They did not share the same bed, but they were in the same room. When they stopped sharing the bed, they were laying in separate beds, but still in the same room. The complainant went to the accused’s bed and lay on the floor and then they started playing with each other’s willy. On the first time ‘I rolled onto the floor, then he just started playing with my willy’,[13] then the complainant went back to his bed and slept.
[13]Exhibit P1, page 9, lines 8-9.
The accused’s brother would sleep on the couch and the complainant’s sister would be in a different room or she slept with the cousin. During cross‑examination, the complainant gave evidence that the cousin had two bedrooms. He slept in the spare room, but not by himself. The accused’s brother would sleep on the couch. The complainant’s sister would sleep in the other room with his cousin.
The complainant’s mother’s evidence
The complainant’s mother gave evidence the complainant used to stay at NC’s place to give her a break. That started just before her youngest son was born in June 2013 and became more frequent afterwards. NC also looked after that younger son. They would sleep over maybe once a fortnight, or once a month, depending on NC’s availability.
The complainant always went there with other siblings and they would all stay the night. The accused and his younger brother would stay there too.
In about 2014, when NC moved house, the children continued to have sleepovers. She thought they occurred about once a fortnight. When NC started working night shift, that changed to only occasionally. They stopped staying over when NC had a partner who had children because there was no room anymore.
The complainant’s mother was not cross-examined.
NC’s evidence
NC gave evidence that from about 2010 to 2015, she lived in a two‑bedroom unit. She looked after the complainant and his two siblings ‘occasionally’.[14] The frequency varied depending on each weekend, what was going on and whether he wanted to come and stay. Sometimes they stayed the night.
[14]T52.
She gave evidence that the accused is her half‑brother and is about ten years younger than her. He stayed with her to give his mother a break. Sometimes he came alone, but sometimes with their little brother. ‘Occasionally’, her cousin’s children would be there at the same time. The children would play board games, get on the Wii, play outside or they would all go to the park.
NC gave evidence that when her cousin’s children were sleeping over at the same time with the accused and their little brother, the complainant’s sister slept in the bedroom with her. The accused and his brother slept in the spare bedroom which had a double bed. The complainant slept on a fold-out couch in the lounge room.
When the children stayed there, it could be in various combinations. When it was just one child who stayed over, that child would sleep in the spare room. She thinks maybe once or twice just the accused and the complainant stayed overnight, ‘that’s just how it all planned out with swapping the kids around at various times’.[15] The complainant was in the spare room and the accused in the lounge room or vice versa, depending on who fell asleep first. They slept in separate rooms – ‘They’re not related in any way so I never put them in the same room’.[16]
[15]T56.
[16]T56.
When she moved to her next place, the complainant and his siblings would come over less regularly because she had housemates move in to help cover costs. The three bedrooms in the house were all occupied about two months after she moved in. The accused and his brother would stay there less regularly as well. She did not have the room to have them all at once. There were only a couple of times when the accused and the complainant were there at night at the same time as the other children. They would all be out in the lounge room to sleep where she had a fold out couch. She would not have all five at once.
When she went to night shift in around 2015, she stopped having them stay overnight.
Evidence of the charged acts
The evidence establishes that the accused had the opportunity to commit the offences. I find that the accused did visit the complainant’s house on two occasions in 2019 and spent time alone with the complainant in the complainant’s bedroom during those visits.
The complainant’s evidence
The complainant’s evidence was that the charged offences were the last time when something sexual happened with the accused.
In the first interview, the complainant told Detective Sweetman that he sent the accused texts to see if he wanted to come over and talk about stuff, how he has been. They talked on video as well.
The accused came over to his house. The complainant locked his bedroom door. When the complainant was lying on his bed, the accused bent over and sucked the complainant’s ‘willy’. The complainant’s pants were a little bit down and the accused’s pants were off. The complainant stood up and the accused started sucking it then as well. The accused then started playing with it, like touching it, squishing it and then the complainant sat back down on the bed. The complainant then started to touch the accused’s penis, ‘squishing his like he was doing to mine’.[17] Afterwards, they played some games. He said they played Fortnite.
[17]Exhibit P1, line 338.
Detective Sweetman asked if anything else happened with the accused. The complainant said ‘nup’.[18] Later in the interview, the Detective went on to say that he ‘heard that something happened where [the accused] was doing something else with his penis’.[19] The complainant replied, ‘mm, he tried putting it in my butt once’.[20] The complainant was sitting on the accused’s penis. It happened in the complainant’s bedroom. He said, ‘it wouldn’t fit so I was just sitting on it’.[21] It would ‘not go in his butt’. He said the accused’s penis was hairy, hard and up. The complainant said that may have happened once or twice.[22]
[18]Exhibit P1, line 390.
[19]Exhibit P1, line 393.
[20]Exhibit P1, line 394.
[21]Exhibit P1, line 418.
[22]Exhibit P1, line 448.
In the second interview, the complainant told Brevet Sergeant Fisher that at the complainant’s house, the accused ‘sucked my willy. Put it in his mouth and sucked it. And then he tried putting his willy into my butt’.[23]
[23]Exhibit P2, page 9, lines 46-47.
He said the accused had been on his phone in the complainant’s bedroom. The accused then started to ‘touch my willy’.[24] The accused stopped for two minutes to finish the game on his phone and then the accused started to get undressed. The complainant was pretty sure the accused pulled down the complainant’s pants and started playing with the complainant’s penis and ‘then like I said before he tried putting it in my butt, and he sucked my willy’.[25] He said it would not go in because it was too big and he was practically just sitting on it. They did not talk about the fact that it would not go in. Nothing happened then, but he ‘just went back to playing with it’.[26]
[24]Exhibit P2, page 10, line 10.
[25]Exhibit P2, page 10, lines 35-36.
[26]Exhibit P2, page 11, line 14.
He did not remember the other time the accused tried to put his penis in his bottom.
He said one time the accused came over, they mainly played Minecraft and the accused went home and nothing happened.
He liked spending time with the accused, playing games like Minecraft. They did not really talk about sex. They did not discuss locking the door, ‘it was locked so no one can just barge into the room’.[27]
[27]Exhibit P2, page 14, line 42.
The complainant was asked questions in court as further evidence‑in‑chief on 2 August 2021. He was asked about the allegation the subject of count 4. He gave evidence it felt a little painful, but he did not really remember that much.
In cross‑examination, the complainant agreed that he chatted with the accused on Facebook Messenger prior to the accused visiting in 2019. They talked about catching up, how long it had been since they had seen each other and playing computer games. The complainant asked the accused to come over. There was nothing sexual in the messages. He believed the accused came over a couple of times, it may have been two or three.
He gave evidence that when the charged offences occurred, there were others in the house, including his mother, his older brother, his younger brother and sister and his father.
He would often keep the door shut when he was playing some games so that it was not too loud for the rest of his family. It annoyed his mother if she could hear the noise from the games. He would sit on his bed or lie down on the bed to play the games. He closed his bedroom door to try and keep his brother and sister out because he did not want them coming in and annoying him whilst he was playing the games. His sister was the most annoying. It was mainly his little brother that he would want to keep out, he was persistent in wanting to play games.

On this day, he locked the door when they started to have sex. He agreed that sometimes he locked the door because he did not want his siblings coming in when he was playing games. That was not the reason why he locked the door when the accused came over.
He agreed the accused knows his family well. The accused did not really chat with his family. All he remembered was the accused coming into his room and they started playing games.
The complainant’s mother’s evidence
The complainant’s mother gave evidence that the accused visited their house on 17 August 2019 and 11 October 2019.
On the first occasion, the accused messaged her to ask if he could see the complainant. She agreed to that. He arrived in the late afternoon. She thought he got there by bus and stayed for a couple of hours. There were other people in the house. The accused spent time in the complainant’s bedroom, just the two of them. The bedroom door was closed and locked. She knocked on the door to see if they wanted something to eat then tried to go in but could not. She did not hear anything. They had been alone in the room for at least an hour.
On the next occasion, the accused came over because he wanted to give the complainant a birthday present. He arrived in the afternoon and stayed for about an hour and a half. The accused spent time in the complainant’s bedroom, just the two of them. She knocked on the door and tried to open it, but it was locked. The complainant said, ‘give me a second’. She waited about 20 to 30 seconds for the door to be opened. When she walked in, they were both sitting on the bed. There was no TV on, or any games.
In cross-examination, she gave evidence that she was told they locked the door so the younger sister would not go in and disturb them while they were playing games.
On other occasions when the complainant played games in his room, he had the door shut, but not locked. He had it shut because he did not want his little sister going in to annoy him. He did not have it shut to keep out his little brother. She said he loves his little brother.
She agreed that she did not mention knocking on the door and finding that it was locked until she gave her third statement to the police on 7 December 2020. She explained that she did not think anything of it. She thinks that she was in shock and it probably did not even cross her mind at the time when she gave her other two statements. She believes there were other questions that prompted her answer.
Evidence of initial complaint
The prosecution led evidence of a complaint made by the complainant to his mother in November 2019. I find that the evidence was admissible pursuant to s 34M of the Evidence Act 1929 (the Act) as an initial complaint, which included information provided by the complainant as an elaboration of the initial complaint.
The complainant’s mother’s evidence
The complainant’s mother gave evidence about a barbeque with family and friends at her house in November 2019. After the guests had gone home, she received a phone call from one of the women who had been at the barbeque who told her that the complainant had touched her son’s penis. In a subsequent text message, she said her son had also witnessed the complainant touching his own brother’s penis.
The complainant’s mother gave evidence that whilst she was on the phone, she asked the complainant about the allegations. He denied it at first. She said he then heard the mother’s voice on the phone and admitted that he did it.
After the phone call ended, the complainant went very quiet. She asked him whether somebody had touched him. He said yes. He would not tell her who it was. She told him it is a criminal offence and she needs to know if somebody had touched him so something can be done about it. About 15 minutes later, the complainant crawled onto her lap and whispered into her ear that the accused had touched him. He did appear scared and she believes that is why he crawled up on her lap and whispered in her ear.
She looked at the complainant’s phone and iPad that night, without him knowing. She saw contact between the accused and the complainant, but there was nothing in that contact that concerned her. The complainant’s internet search history included ‘boys sucking boys’ penises’, ‘gay bum sex’ and ‘boys touching other boys’ penises’ and things like that.
She thinks she asked the complainant specific questions because of what she had seen in his internet search history. She is not sure if that conversation was that night or early the next morning before she took him to the police station. She asked whether the accused had ever made him suck his penis or whether he had done the same to the accused. He replied yes that they had sucked each other’s penises. She asked if there was any penetration. The complainant said the accused could not get it up his bottom because it was too big, but that he managed to get it up the accused’s bottom.
She reported her own son for what he had done to the other boy and his younger brother. She also reported what the accused had done to the complainant.
The complainant’s evidence
In the first interview, the complainant said he told his mum about what happened the day before he spoke to the police.
During cross-examination on 2 August 2021, the complainant agreed there was a time when his mother asked him about whether he had touched another boy’s willy. His mother was asking him a lot of questions about that. The mother of the other boy was on the phone. At first, he told his mother that he did not touch the other boy’s willy. His mother kept asking questions. He then told her that he had done it.
When his mother was asking him lots of questions, he was scared that he was going to get into trouble and might be punished. His mother asked him where he learnt to do that. At first, he said no one. She told him that touching a child’s penis is a crime. She asked him if anyone had touched him. He told her the accused had touched him.
He agreed his mother asked him specific questions about the acts that might have occurred between himself and the accused. He could not recall the time when he started going over to his cousin’s house, nor when he stopped going over there. He agreed that his mother gave him that information.
Assessment of the complaint evidence
On the complainant’s mother’s evidence, the complainant said that (a) the accused ‘touched him’, (b) the accused performed fellatio upon him, (c) the complainant had performed fellatio upon the accused, (d) the accused had tried to penetrate the complainant’s anus but was unable to do so because his penis was too big and (e) the complainant had penetrated the accused’s anus.
There is an issue concerning the extent to which the complaint is referable to the charged acts. The terms of the complaint set out in (a) and (b) are capable of describing the acts the subject of counts 1 and 2 as well as similar uncharged acts (the accused touching the complainant’s penis and the accused performing fellatio upon him).
A similar issue arose in R v S, DD.[28] Evidence of complaint was led in the context of evidence of charged and uncharged acts. The conduct alleged in the first and second counts was months apart and there were many similar but uncharged acts alleged to have taken place over the same period. In determining whether the trial judge gave adequate directions to the jury on the proper approach for considering the complaint evidence, Duggan J (with whom Anderson J agreed) stated that it is important to have regard to the circumstances in which such evidence might demonstrate consistency. Evidence of complaint is admitted pursuant to s 34M of the Act because of its tendency to prove consistency of behaviour, including consistency between the incident that is alleged and the terms of the complaint.[29] Duggan J went on to state:
The complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count unless it can be seen to be referable to that offence. That is not to say that a complaint must necessarily refer to the details of the occasion charged in the count under consideration. However, where a general complaint of sexual abuse is led in evidence for this purpose, it must be established that what was said encompasses the conduct alleged in that count.[30]
[28](2010) 109 SASR 46
[29]R v Szejnoga (1988) 199 LSJS 97 at 102, per Doyle CJ as referred to by Duggan J in R v S, DD at [3].
[30]At [4], per Duggan J.
In that case, the jury should have been told that (i) if the second count occurred after the complaint then the evidence of complaint could not be used to establish consistency in regard to that count and (ii) the evidence of complaint had to be linked with the first count, even if it had been expressed in a general way, before being used as evidence of consistency.[31]
[31]At [8] – [9], per Duggan J.
Here, what was said by the complainant to his mother in terms of (a) and (b) set out above, does encompass the conduct alleged in counts 1 and 2. It is also the case that what the complainant said in terms of (d) encompasses the conduct the subject of count 4. The complainant gave evidence that conduct happened once (count 4) or twice, although he could not remember the other time. To that extent, the complaint to his mother could be said to demonstrate consistency of conduct in relation to counts 1, 2 and 4.
Ultimately, I do not place any weight on the complaint evidence for the purpose of assessing the complainant’s consistency of conduct. The complainant’s mother asked the complainant ‘specific’ questions that were probably leading questions. She had seen her son’s internet searches and was prompted to base her questions on what she had seen. I make no criticism of her about that at all. She was genuinely trying to find out what her son had been doing to others and what had been done to her son. I find she had no improper agenda in asking the questions in the way she did. After receiving the answers, she made the decision to take her son to the police station, which must have been a difficult decision to make.
I have considered what the complainant told his mother for the purpose of assessing its inconsistency with the complainant’s evidence (see below at [109]‑[111]).
I have used the complaint evidence to explain how the allegation the subject of counts 1, 2 and 4 first came to light.
Police interview with the accused
The accused was arrested at his home on 18 November 2019 then interviewed at the Elizabeth police station.[32]
[32]Exhibit P3 and MFI P3A.
During the interview, the accused was asked why the complainant might say ‘these kind of things’. I exclude from my consideration those questions and answers. It is not for the accused to speculate about why the complainant might concoct allegations. He has no onus of proof. He does not have to suggest a reason for why the complainant might lie.
The accused told the police he has known the complainant since the complainant was eight years old and described him as a family friend. He estimated a six year age difference between them.
He was probably about 13 when he first met the complainant and stopped seeing him at about age 16. He then did not see the complainant for about three or four years.
He had recently been to the complainant’s house twice. He made plans with the complainant to see him because he knew the complainant wanted to see him quite a bit. They had contact over Facebook. The complainant contacted him first and said he wanted to catch up. The accused said he would talk to the complainant’s mother about that.
The accused said the first time he visited, his brother dropped him off and he did not stay long. They watched movies and played games in the complainant’s bedroom. The door was shut, but he did not remember it being locked. There was no one else in the room with them.
The accused told the police he last saw the complainant about a month ago. He got there around midday and left about 6.00pm. They mainly watched a movie and played games in the complainant’s bedroom. He gave the complainant a hug when he first came in. He did not remember the door being locked. Other family members were at the house. He did go out of the room to talk to other family members because he was not there to only see the complainant. He was in the complainant’s room close to 50% of the time. Others did come into the room, including the complainant’s mother once.
The accused denied any sexual contact with the complainant. Every now and then there was a hug to say hello or goodbye.
He had not seen the complainant exhibit sexual behaviour. He told the police ‘I rarely looked for that. I don’t see why people would do that other way … why people would even try looking at kids, I think it’s wrong’.[33]
[33]MFI P3A, lines 114-116.
Discussion of the evidence
The prosecution case as to the charged offences relies upon the evidence of the complainant. I need to carefully assess his credibility and reliability. His evidence must be closely scrutinised and considered with the other evidence presented at trial. Even if I assess him to have been a credible and reliable witness, it does not follow that the charges have been proved. I must be satisfied, based on all the evidence, that the acts alleged in the charged offences did in fact occur.
I found the complainant to be a credible witness in the sense that he genuinely believed he was telling the truth. He gave evidence in a straightforward manner with no embellishment. He was not rehearsed or even invested in his answers. I found him to be very matter of fact and ‘telling it like it was’. He displayed little emotion. There was nothing about his demeanour which was inappropriate, or which gave me the impression he was not being truthful. His mother gave evidence that he was diagnosed a few years ago with autism (ASD Level 2), is severely dyslexic and has a receptive learning delay. The prosecution did not lead any further evidence about the complainant’s autism.
The alleged uncharged acts are an important part of the prosecution case. For the prosecution, Mr Cunningham submitted that in isolation, the charged allegations might be difficult to reconcile, that is, a 19 year old man being willing to risk performing such acts with a 12 or 13 year old boy when there are others in the house. He submitted that the uncharged acts prove the complainant had been conditioned to the sexual contact with the accused and that the charged offences are an extension or escalation of that earlier sexual contact. They explain why the accused would have had the confidence to commit the offences in those risky circumstances as well as the complainant’s response, namely, his lack of surprise and compliance. The discreditable conduct evidence was admissible for those purposes pursuant to s 34P(2)(a) of the Act.
Before I make any use of that evidence in that way, I must be satisfied that those uncharged acts did in fact occur.
The evidence establishes that there were times when the complainant and the accused slept overnight at NC’s house commencing from when the complainant was five or six years old and the accused was a youth. The evidence of NC was that there were only a few occasions when the complainant and the accused were the only two children who slept over. There was no evidence from NC or the complainant’s mother about the frequency of sleepovers involving the complainant and the accused in combination with other children.
The complainant’s mother did not give any evidence about where the children slept on those sleepovers because she was not there. NC’s evidence on that topic contradicts the evidence of the complainant. On NC’s evidence, there was no opportunity for the accused to have committed any of the uncharged acts because the accused and the complainant never slept in the same room.
Mr Cunningham submitted that NC’s memory may be unreliable because she had no reason to remember until she was asked about it many years later. He submitted that even if her memory is accurate, it does not follow that the uncharged acts did not occur. The two of them did stay the night in the same house. It may be that the complainant, given his young age at the time, had an impression that the acts occurred more frequently than perhaps they did.
Ms Davey submitted that NC’s evidence on this topic was in stark contrast to that of the complainant. She submitted that NC’s evidence was not that she did not remember. Her evidence was that she did remember. She remembered that the accused and complainant never shared a room or a bed.
I agree with Ms Davey’s submission that NC’s evidence was that she could remember. She was not vague about the sleeping arrangements. She did not suggest it was difficult to remember because of the passage of time. She was certain that the accused and the complainant never shared a bed or a bedroom at her house.
I did not find NC to be a credible witness because of that certainty, her general demeanour and the reason she proffered for her certainty. She presented as a witness who was quite determined to have her say. She came across as wanting to help the accused, who is her half‑brother. Her evidence that she never put them in the same room at that house because they are not related in any way did not ring true. It was also in conflict with her evidence that the children all slept in the lounge room when they stayed with her at the next house.[34]
[34]T54.
I accept the complainant’s evidence about the uncharged acts. I reject NC’s evidence in so far as she claimed to remember the accused and the complainant never shared a bed or slept in the same room. I found the complainant to be a credible and generally reliable witness on this aspect of his evidence. I am satisfied that the uncharged acts alleged by the complainant did in fact occur.
I have not used the discreditable conduct evidence to reason that the accused is more likely to have committed one or more of the offences because he engaged in that uncharged conduct. Nor have I used it to reason that he is a bad person and therefore the type of person who would commit one or more of these offences. I have only used the evidence for the limited purposes described above.
In relation to the charged acts, Ms Davey submitted there were several reasons why the complainant should not be believed to the required criminal standard.
In relation to count 4, she submitted he made no disclosure about attempted anal intercourse until late in the first interview. Prior to that disclosure he had spoken about some sexual contact with the accused and had three times denied any other sexual contact. Once he disclosed attempted anal intercourse, she submitted he seemed confused about how many times that type of sexual contact occurred. He initially stated it happened once,[35] then stated it happened twice,[36] then stated more than one time,[37] then could not remember one time,[38] and then it may have happened once or twice.[39] In the second interview he said it happened twice, once in his bedroom, but he could not remember where it happened the other time.[40]
[35]Interview, page 24, line 394.
[36]Interview, page 24, line 396.
[37]Interview, page 24, line 398.
[38]Interview, page 27, line 446.
[39]Interview, page 27, line 448.
[40]MFI P2A, page 11, lines 20 – 27.
I agree with Ms Davey that when the complainant first recounted the charged occasion, he did not refer to count 4. At the end of his first narrative about the contact in his bedroom, he was asked whether anything else happened the last time in his bedroom and he said ‘nup’.[41]
[41]MFI P1A, lines 345 – 346.
I do not agree that the next two references relied upon by the defence should be construed as a failure by the complainant to mention the act of attempted anal intercourse. During the interview, the questioning was generally back and forth between the uncharged acts and the charged occasion.

Regarding the second time the defence say the complainant did not refer to count 4, Detective Sweetman asked the complainant whether he remembered the first time any sort of sexual abuse happened, and he said he did not. He was then asked whether he remembered another time that ‘any sexual stuff’ has happened with the accused and he said ‘no’.[42] The immediate prior question was about the uncharged acts. The complainant made it clear during the interview that he did not have a specific memory of an occasion involving the uncharged acts. His answer ‘no’ should be construed in that context.
[42]MFI P1A lines 437 – 350.
The same may be said about the third time the defence say the complainant failed to mention count 4. The question ‘does anything else happen?’[43] was in the context of the complainant’s answers about the uncharged conduct.
[43]MFI P1A lines 389 – 390.
The complainant first gave evidence about attempted anal intercourse during the first interview when he was asked a more focused, but not leading, question from Detective Sweetman. He was asked, ‘I heard that something happened where [the accused] was doing something with his penis. Did something else, was [the accused], had [the accused] done something else with his penis?’. The complainant responded ‘Mm, he tried putting it in my butt once’.[44] In the second interview, the complainant gave evidence which put the attempted anal intercourse in the context of the occasion the subject of the other charges.[45]
[44]MFI P1A lines 393 – 394.
[45]MFI P2A pages 9 to 11.
The complainant’s non-disclosure of the attempted anal intercourse when he was first describing the occasion in the bedroom does not cause me to doubt his credibility or reliability. On one reading of the question (did anything else happen this time, the last time in your bedroom[46]), the answer (‘Nup’) could be construed as a literally correct response. Anal intercourse did not happen. My impression of the complainant was of someone with concrete thinking.
[46]MFI P1A, page 21.
That impression is relevant when considering Ms Davey’s submission about the inconsistency between the complainant’s evidence and what the complainant said to his mother. The complainant told his mother that he put his penis up the accused’s bottom. He also told his mother that he performed fellatio on the accused. In cross‑examination, he agreed he said those things to his mother.[47] He did not tell the police or give any evidence in court that those acts did or did not occur. Ms Davey submitted that the police gave him a number of opportunities to tell them about what had happened.
[47]T21.
I think this highlights the skill required when questioning this particular complainant. He responded to his mother’s leading questions, but I do not place any weight on the answers because of the leading nature of the questions. In the first interview, the complainant did not disclose that the accused attempted anal intercourse until Detective Sweetman asked a directed question. He did not make that disclosure when asked an open-ended question such as ‘did anything else happen’.
The complainant was not asked by Detective Sweetman or the prosecutor if he did anything else with his penis and the accused. Nor was he asked whether he did anything else with the accused’s penis. He was not asked those more directed questions which may have elicited a response that he fellated the accused and anally penetrated the accused. I cannot and do not speculate about what may have been his answers. The point is that the absence of any evidence from the complainant on that topic (when compared to his disclosure to his mother) is not something I find to be adverse to him in my assessment of his overall credibility and reliability because he was not asked a properly directed question.
I agree with Ms Davey’s submission that the complainant was unsure whether attempted anal intercourse happened once or twice. I think he is mistaken about the possibility that it happened twice. When he described the period during which the uncharged acts occurred, he made no suggestion that attempted anal intercourse was one of the types of sexual acts that occurred. There were only two occasions when the accused visited his home in 2019. He gave evidence that nothing happened on one of those occasions.
Second, it was submitted by Ms Davey that the concept of the charged acts happening without any conversation was remarkably strange, particularly given the complainant got up to lock the door. Ms Davey submitted it is not believable for this to simply come out of the blue. She submitted it would be very unusual for them to simply engage in acts different from the uncharged acts with nothing said. It was not normalised behaviour because the uncharged acts had allegedly occurred some four years prior and were different.
I agree that there was a gap of four years between the alleged uncharged acts and the charged occasion. By the time of the charged occasion, it was not normalised in the sense that it had not been behaviour that was ongoing up until that time. However, it had been a normal part of their prior relationship, which commenced when the complainant was very young and impressionable. I find it significant that the complainant told Detective Sweetman ‘…it’s been four years he’s been doing it. And, after that I started doing it to other people and watching stuff’.[48] In 2019, there was a degree of risk for the accused in that he did not know the extent to which the complainant would be amenable to sexualised behaviour some four years on. However, that degree of risk was not at the level of risk had they never had a sexual relationship.
[48]MFI P1A lines 268 – 276.
Ms Davey submitted that the charged occasion is not believable because it was a large escalation without a single word uttered. However, the type of offending the subject of counts 1, 2 and 3 was sexual behaviour that had occurred years before at NC’s house. The allegation the subject of count 4 was not. The accused’s preparedness to engage in that further behaviour and the complainant’s lack of surprise does not cause me to doubt the complainant’s account. The complainant’s compliance with the acts the subject of counts 1, 2 and 3 may well have emboldened the accused to attempt anal intercourse.
Ms Davey also submitted that the complainant’s evidence is at odds with the evidence of his mother. If his mother’s evidence is to be accepted, there was a significant time delay in the complainant opening the locked door to his mother. She submitted that you would expect the complainant to have remembered something like that. She also submitted that the mother’s evidence did lack some credibility because it was not until her third statement that she made that disclosure.
During cross‑examination, the complainant’s mother explained that when she was speaking to the police, the fact of the locked door did not cross her mind but at some stage there were other questions that she was asked that prompted her answer about that. In my view, the failure of the complainant’s mother to tell the police about the locked door during her first few statements reinforces my assessment that she was not a witness who was trying to barrack for her son or direct malice to the accused. If that had been her mission, then it would be more consistent for her to have spoken about the locked door from the outset. Again, it cannot go without notice that she was the one who reported her son to the police.
The complainant gave evidence that he locked the door, but he was not asked about his mother knocking at the door and then a delayed response before he opened the door. His failure to mention it is not a matter which I find to be adverse to his credibility or reliability. He was a witness who needed to be directed to a topic. If he is, then he will answer it and will do so in a direct manner.
Motive to lie
Ms Davey submitted that the defence has raised a specific motive to lie. The complainant had been caught indecently assaulting two other boys, one being a family friend and the other his own brother. This complaint came about during interrogation by his mother. The complainant himself said he was worried he would get into trouble. The defence submitted that the complainant was able to deflect the spotlight away from himself and onto the accused.
Ms Davey submitted there should be some concern that the very acts he complained of were the acts that he saw in the pornography on his iPad. It is open to conclude that he learnt those acts from watching pornography. Further, it should be kept in mind that the mother asked the questions in a leading fashion. He may have been embarrassed to admit that he had been watching pornography and knew his mother would not approve.
I have considered the possible motive to lie as raised by the defence. A motive to lie is relevant to the credibility of a complainant. The accused has no onus of suggesting or proving such a motive. It is for the prosecution to prove beyond reasonable doubt that the complainant is telling the truth.
I do not consider the complainant made up these allegations to deflect attention from the accusations that he offended against the other boy and his own brother. When cross‑examined, the complainant denied the suggestion that he had made up these allegations against the accused to avoid getting into trouble. He admitted that he was scared when his mother was asking all those questions. He was scared he might be punished. He agreed that he did not know what to do or say.
During the first interview, the complainant did not try and deflect attention away from what he had done to the other children. On the contrary, he made two offers to talk about his own offending behaviour. He was open about his own alleged offending as well as these allegations against the accused. When Detective Sweetman asked him what he had come to talk about, he said ‘talk about sexual abuse and about someone sexually abusing me and…I sexual abuse someone.’[49] He was then asked to talk about what happened to him. After they had discussed that, the complainant asked Detective Sweetman whether he wanted him to now tell him about what he had been doing to other people.[50] I agree with the prosecution submission that the complainant’s approach was consistent with someone who bore no malice to the accused.
[49]MFI P1A, page 16.
[50]MFI P1A, page 28.
During cross‑examination, the complainant readily admitted that he knew what pornography was and that in 2019, he used his iPad to search pornography involving acts between boys or men. Those acts included fellatio, anal sex and the touching of penises. His mother did not know about it and he knew she would not approve. He hid under the bedcovers to watch the pornography. His candid evidence on this topic was not consistent with the suggestion that he was lying about the accused’s action in order to avoid getting into trouble himself.
I reject the proffered motive to lie. It does not follow from that rejection that the complainant was therefore being truthful. The absence of evidence of a motive to lie does not strengthen the prosecution case. It is neutral. I bear in mind that lies can be told for no apparent reason.
Verdicts
Ms Davey submitted that the accused did not have to participate in the police interview. He admitted he was over at the complainant’s house. He did not try to downplay or pretend that he was not. He denied committing any of the acts.
By agreeing to participate in an interview with the police, the accused takes on no onus of proof. I have assessed the interview with the police bearing in mind that the answers were not given under oath nor have they been the subject of cross‑examination. His answers were in response to formal police questioning.
I have carefully considered and scrutinised the complainant’s evidence with all of the other evidence in the case, including the accused’s interview with the police.
I find the complainant was a credible and reliable witness and I am satisfied that he was telling the truth.
I have considered each count separately. I am satisfied beyond reasonable doubt that the acts the subject of each count did in fact occur as described by the complainant.
I find the accused guilty of counts 1, 2, 3 and 4.