R v C, E - [2025] SADC 13

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v C, E
[2025] SADC 13
Reasons for the Verdict of her Honour Judge Fuller
19 February 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SEXUAL ABUSE OF A CHILD
Accused charged with sexual abuse of a child - offence alleged to have been committed between 1983-1987 when the complainant was between 13 and 17 years old. Accused was complainant’s ballet teacher. Offending alleged to have occurred during a sleepover at the accused’s ballet studio when other students were present, at sleepovers at houses the accused rented, in the complainant’s bedroom in her family home when the accused dropped off the complainant after ballet class, on a trip to New Zealand and a ballet study tour in Europe, at the complainant’s grandparents’ home which the accused was renting for a short period and when the accused visited the complainant whilst she was studying ballet with the New Zealand School of Dance in 1988 for 11 months. Uncharged offending in other jurisdictions admitted pursuant to s 34P (2) (b) Evidence Act 1921. When complainant returned from New Zealand she was an adult and suffering from bulimia– complainant gave evidence that she moved into accused’s house upon her return because her bedroom had been rented out by her parents in her absence – sexual activity resumed - complainant continued to live with the accused until she was accepted into the Queensland Ballet Company in January 1991. Accused took complainant to hospital for her bulimia in March 1989 – hospital notes recording complainant’s observations and feelings towards accused tendered as business record.
Complainant disclosed offending in general terms to fellow ballet dancer whom she dated briefly whilst in Queensland dancing for the Queensland Ballet Company.
Prosecution commissioned expert report pursuant to s 29C Evidence Act 1929 in November 2024 without informing the accused’s legal representatives or the court at a pre-trial hearing in December 2024. Prosecution received expert report on 9 January 2025 and disclosed it to the accused’s legal representatives that afternoon, 1.5 working days before trial. Conduct of prosecution was in breach of s 123 (2) (d) and (e) Criminal Procedure Act 1921. Order made pursuant to s 125 (1) CPA that prosecution not permitted to lead the expert evidence.
Held: Credibility and reliability of complainant’s account undermined by the evidence of the complainant’s mother, and two fellow ballet students and proved prior inconsistent statements on material topics. Complainant’s explanations for sleeping over at the accused’s house and moving in with the accused upon her return from New Zealand implausible and contradicted by evidence of complainant’s mother. Complainant’s evidence of nature of relationship with accused and her conduct as ballet teacher contradicted by evidence of fellow students and hospital notes. Complainant’s evidence of opportunity for accused to abuse her in her own bedroom contradicted by evidence of complainant’s mother. Accused participated in very lengthy record of interview – accused’s denials compelling and could not be rejected beyond reasonable doubt.
Verdict: Not guilty.
Criminal Procedure Act 1921 (SA) ss 123(2)(d)(e), 125(1); Evidence Act 1929 (SA) ss 13(7), 29C, 34CB, 34P; Juries Act 1927 (SA) s 7, referred to.
R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; R v Cassebohm (2011) 109 SASR 465; R v Maiolo (No 2) (2013) 117 SASR 1; R v W, PK [2016] SASCFC 5; R v R, PA [2019] SASCFC 19; Rona v District Court of South Australia (1995) 63 SASR 223; Rona v District Court of South Australia (1995) 63 SASR 223; R v Quist (District Court of South Australia, Allen J, 8 September 2023) 7, quoting DPP v Ozakca (2006) 68 NSWLR 325 [25] (Rothman J), applied.

R v C, E
[2025] SADC 13
Criminal

The accused is charged on Information with the following offence:
Sexual abuse of a Child. (Section 50 (1) of the Criminal Law Consolidation Act, 1935).
Particulars
[The accused] between the 10^th day of April 1983 and the 9^th day of April 1987 at Adelaide, Eden Hills, Marion, Morphett Vale, Old Reynella, Seaview Downs or other places, maintained an unlawful sexual relationship with [SR], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [SR], namely:
(a)    Touching SR’s genital area on more than one occasion;
(b)    Inserting a finger into SR’s vagina on more than one occasion;
(c)    Causing SR to touch her genital area on more than one occasion;
(d)    Causing SR to insert a finger into her vagina on more than one occasion; and
(e)    Causing SR to perform an act of cunnilingus on her on more than one occasion.
The plea
The accused pleaded not guilty and elected for trial by Judge alone. I heard the trial without a jury. I now publish my reasons for the verdict I am about to deliver.
Pre-trial applications
Prior to the trial commencing, the accused made an application pursuant to s.125(1) of the Criminal Procedure Act (CPA) and at common law for an order that the prosecution not be permitted to lead the evidence of Dr Jane Goodman-Delahunty as set out in her report dated 9 January 2025. I granted that application for the reasons that follow.
I was satisfied that the prosecution failed to comply with the disclosure requirements under s.123(2)(d) and (e) CPA by failing to notify the accused in November 2024 that a report was being commissioned from Dr Goodman-Delahunty and failing to notify the accused of the details of the evidence to be addressed and adduced via that report. The chronology of events was set out in an email chain tendered by defence counsel: VD-D1. It is as follows:
1.   On 4 November 2024, the investigating officer emailed psychologist Dr Jane Goodman-Delahunty inquiring as to her availability to provide an expert witness report into the behaviour of a sexual assault complainant.
2.   On 4 November 2024, Dr Goodman Delahunty emailed the investigating officer to advise of her hourly rate and the likely time it would take her to compile the report. She said she could aim to have the report to the investigating officer by 13 December 2024.
3.   On 11 November 2024, the investigating officer emailed Dr Goodman-Delahunty to advise that the request for the report had been approved and asked for advice regarding the material Dr Goodman-Delahunty would need to prepare the report. On the same day, Dr Goodman-Delahunty sent an email outlining the material she required.
4.   On 20 November 2024, the investigating officer emailed Dr Goodman-Delahunty apologising for her late reply and advised her of the material in her possession that she could send. She told Dr Goodman-Delahunty that the trial was listed to commence on 13 January 2025. On the same day, Dr Goodman-Delahunty emailed the investigating officer requesting copies of the statements of the complainant and her husband, and the original report. The requested material was emailed to Dr Goodman-Delahunty the same day.
5.   On 2 December 2024, the investigating officer sent Dr Goodman-Delahunty a series of questions to be addressed in the report, as requested by the DPP.
6.   On 13 December 2024, Dr Goodman-Delahunty emailed the investigating officer to advise her that she had been working on the report and she would provide it within two weeks.
7.   On 6 January 2025, the investigating officer emailed Dr Goodman-Delahunty advising that she had returned from annual leave and said she wanted to make sure the report was ready for the trial commencing at 2.15pm on 13 January 2025.
8.   On Tuesday 7 January 2025, Dr Goodman-Delahunty emailed the investigating officer advising that she was ready to assemble the report and apologising for being behind schedule. She said she would provide it that week.
9.   On 7 January 2025 the investigating officer emailed Dr Goodman-Delahunty with some further information. Dr Goodman-Delahunty responded the same day. Later that afternoon, the investigating officer again emailed Dr Goodman-Delahunty asking if the report could be available by the Wednesday evening (8 January 2025) or the Thursday morning (9 January 2025).
10.   The report was provided to the investigating officer on 9 January 2025. It was disclosed to the accused’s legal representatives that afternoon, 1.5 working days prior to trial.
It is clear from VD-D1 that the request by the investigating officer for a report from Dr Goodman-Delahunty resulted from a directive to do so from the prosecution.
At no time prior to 9 January 2025, did the prosecution advise the accused’s legal representatives that the prosecution had sought an expert report for the purposes of deploying it at the accused’s trial by calling the author of the report to give evidence consistent with its contents.
On 13 December 2024, the court held a second directions hearing call over. The solicitor with the conduct of the file for the DPP attended the hearing but did not advise the court or the accused of the request for a report from Dr Goodman-Delahunty. The prosecutor told the court that the trial was ready to proceed.
I was told by the prosecutor, Ms Dunlop SC, that the solicitor with the conduct of the file did not disclose the fact that the report had been commissioned from Dr Goodman-Delahunty to the defence because the solicitor believed that the report was unlikely to arrive in time. This explanation was unsatisfactory and did not excuse the failure to comply with the statutory obligations of disclosure. I accepted that this was not a deliberate attempt to ambush the accused, and the accused did not suggest otherwise. Nevertheless, the outcome was the same because the report was disclosed 1.5 working days before trial. The accused was placed in this position through no fault of her own.
The failure to disclose the report was in breach of s 123(2)(d) and (e) CPA. Section 123 CPA relevantly provides:
123—Case statements
(1) Subject to section 122, where the Magistrates Court commits a defendant charged with an indictable offence to a superior court for trial, the prosecution—
(a) must present, or cause to be presented, an information against that person; and
(b) must, not less than 6 weeks before the date fixed for the defendant's arraignment in the superior court—
(i)    file in that court; and
(ii)     give to the defendant or a legal practitioner representing the defendant,
a prosecution case statement.
(2) A prosecution case statement must include (in accordance with prosecution duties of disclosure) the following:
(a) a summary of the alleged facts;
(b) a description of evidence that may be led by the prosecution in relation to each element of the offence;
(c) a list of the witnesses the prosecution intends to call at trial;
(d) details of each expert witness the prosecution intends to call at trial;
(e) details of any additional witness statement that the prosecution is aware will be obtained, but which has not yet been obtained;
(f) whether the prosecution intends to lead discreditable conduct evidence (within the meaning of section 34P of the Evidence Act 1929) that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue and, if so, details of that evidence;
(g) whether the prosecution intends to make any pre-trial applications under the Evidence Act 1929 and, if so, a copy of any such application;
(h) whether the trial is one that is to be given priority under section 50B of the District Court Act 1991;
(i) an estimate of the length of the prosecution case;
(j) whether any interpreter will be required for the prosecution case (and if so, the language that the interpreter will be required to interpret).
…
(6)     The obligation to disclose information or material of a kind that is required to be included in a case statement under this section is ongoing until—
(a) the defendant is convicted or acquitted of the offence; or
(b) the prosecution is terminated.
(7)     In accordance with subsection (6), if—
(a) any information or material included in a case statement by a party subsequently changes; or
(b) any information or material is obtained or anything else occurs after a case statement has been filed in a court by a party that would have been required to be included in that party's case statement if it had been obtained or had occurred before the case statement was so filed,
the information, material or occurrence is to be disclosed to the other party to the proceedings as soon as practicable. [Emphasis added]
The 13-page report referenced over 50 papers or studies. Dr Goodman-Delahunty answered the following five questions in her report:
1.   Why a child would not necessarily have made a complaint following an instance of being sexually assaulted or may not make a complaint to her parents.
2.   Why a child would perform a sexual act at the request of a defendant to please the defendant.
3.   Why a complainant would reassure a defendant despite a defendant’s abuse of the complainant.
4.   Why a complainant may continue to have contact with a defendant even after moving away.
5.   Why a complainant may move in with a defendant despite previous offending against the complainant.
Given the timing of the provision of the report, it was impossible for the accused to address the contents of the report, make any relevant inquiries, including the commissioning of an expert to consider the contents of the report, or make any forensic decisions regarding the impact of the report upon the cross-examination of the complainant or the trial generally. If I permitted the evidence to be led, the only mechanism to cure this unfairness was to adjourn the trial. The earliest the trial could be relisted before me was 3 March 2025, but defence counsel's availability was such that the trial would likely not conclude in that time.
The evidence proposed to be adduced was not fundamental or crucial to the prosecution case and there was no basis upon which I could conclude that without it, the prosecution could not prove the charge beyond reasonable doubt. The evidence proposed to be led, as set out in the report, was designed to dispel myths and misconceptions about behaviours of child victims of sexual abuse that may be viewed by the trier of fact as counterintuitive.
The evidence was not intended to support a finding that it was more likely that the complainant was telling the truth about the alleged conduct the subject of the charge. Rather, the evidence would provide an understanding of the behavioural context in which to assess the particular circumstances of the case, as found by the trier of fact. It did not seek to establish, nor could it establish that the complainant's behaviour was positively confirmatory of sexual abuse having occurred as alleged.
Section 29C of the Evidence Act 1929 (EA), the provision pursuant to which the evidence of Dr Jane Goodman-Delahunty was made admissible, has been in operation since 1 June 2022, before the prosecution against this accused was commenced. The Information in this matter was laid in the Magistrates Court on 3 March 2023 and the accused was committed for trial in the District Court in August 2023. The trial date was set when the accused was arraigned in the District Court.
During submissions, the prosecutor explained that s 29C EA had been utilised by the prosecution to adduce evidence of this kind in a trial that proceeded in May 2024. Plainly, the prosecution had been aware of s 29C EA since its commencement and aware well ahead of the date of this trial that there are expert witnesses in Australia who can give evidence of the kind that is admissible under s 29C EA.
The prosecutor explained, and I accepted, that the Director of Public Prosecutions had been considering s 29C EA and its use in the trial in May 2024, and then commenced internal education sessions before determining to deploy it in this trial and other trials. However, those decisions and the timing of the education process were matters entirely within the Director's control against the background of the Director's knowledge of his obligations under the CPA and, specifically, the trial date in this matter.
Against this background, I concluded that it would be unfair to the accused to allow this evidence to be led if the trial commenced on 13 January 2025 and if I permitted it to be led, the inevitable result would be that the trial could not proceed on the date on which it has been listed. Although an available mechanism to remedy the unfairness occasioned by the late provision of the report was the adjournment of the trial, that would result in another delay in a case in which the allegations date back to the period between 1983-1987. Whilst the adjournment of the trial would not deprive the accused of an opportunity adequately to defend herself, that is not the only form of prejudice to be considered on this application. As Allen DCJ observed in his Honour’s ruling in R v Quist[1]:
A person is presumed innocent unless and until a jury returns a verdict finding otherwise. The importance that our system places on that presumption is itself one of the reasons that a defendant is entitled to be tried as expeditiously as possible. Another is the inevitable toll that being the subject of very serious allegations can take on a person presumed to be innocent. Speaking in the context of appellate review of a refusal to grant the prosecution an adjournment, Rothman J made the following observation:
It cannot be stressed enough that the elements associated with the right of an accused to escape the continuing state of anxiety and insecurity that necessarily accompanies a criminal charge must be paramount…[2]
[1] (District Court of South Australia, Allen J, 8 September 2023) 7, quoting DPP v Ozakca (2006) 68 NSWLR 325 [25] (Rothman J).
[2] DPP v Ozakca (2006) 68 NSWLR 325 [25].
The accused’s application for an order refusing to permit this evidence to be led involved an assessment of procedural unfairness of the type discussed in Rona v District Court of SA (1995) 63 SASR 223, the principles governing the exercise of common law remedies to cure procedural unfairness, and the statutory remedy enshrined in s 125 CPA. That section provides:
A superior court determining proceedings for an indictable offence may refuse to admit evidence in the proceedings that is sought to be adduced by a party who has failed to comply with disclosure requirements applying to the evidence.
An order refusing permission to adduce this evidence is not made for the purpose of sanctioning or punishing the prosecution for a failure to comply with s.123 CPA or common law principles of case-flow management; an order of this type is made for the purpose of ensuring that the trial of the accused was fair.
In my view, it was not appropriate to utilise the available remedy of an adjournment of the trial (which was not sought by the accused) when the unfair position in which the accused was placed was the direct result of the prosecution’s failure to comply with common law case-flow management principles and the statutory obligations of disclosure enshrined in s 123 CPA. There was no satisfactory excuse for this egregious (albeit not malicious) failure. The evidence was neither fundamental, nor integral to the prosecution case. In those circumstances, this was one of those exceptional cases where the Court should set its face against an egregious breach of the statutory obligations imposed upon the prosecution under the CPA.

In the exercise of my discretion, I granted the application and, pursuant to s 125 CPA, ordered that the prosecution was not permitted to adduce the evidence contained in the report of Dr Goodman-Delahunty dated 9 January 2025.
The remaining application by the accused was for the exclusion of evidence to be led from the complainant that the accused was violent towards her when the complainant was an adult and nearly two years after the conclusion of the alleged offending. In her first statement to police dated 1 July 2020, the complainant alleged that at a time after she had returned from New Zealand suffering from bulimia, the accused would beat her, including smacking her head against the wall and dragging her up the hall by her hair. She said the accused would give her gold charms after each beating. The accused beat her on areas of her body that would be covered by her dance wear. She would slap her on the face which did not bruise. She would hit her to the back of the head. The complainant also recalled that on the accused’s birthday when the complainant was 20 years old, they were at the Dance Centre at Whitmore Square. The complainant ate something and then went to the toilet to throw up. In the toilet block, the accused grabbed her by the throat and choked her and hit her head against the besser blocks in the toilet whilst telling the complainant that if she did not eat anything she would die, and the accused would rather kill her herself. The accused then kneed her in the pubic bone. The complainant fought back and told the accused never to touch her again.
The prosecution conceded that this was clearly discreditable conduct evidence, but said the probative value of this evidence outweighed its prejudicial effect. The asserted permissible use of this evidence was to demonstrate the exercise of control and dominion over the complainant which, during the period of the alleged offending, had not taken the form of violence but had taken other forms. It was also submitted that this evidence explained why the complainant stayed with the accused and why she failed to complain about the prior sexual abuse. During submissions the prosecution conceded that the complainant did not draw any connection between the violence and her decision to stay with the accused or her failure to complain about the sexual abuse. The prosecutor also contended that the final act of violence in the toilet block explained why the relationship between the accused and the complainant ended. It was shortly after this that the complainant moved to Queensland having successfully auditioned for the Queensland Ballet Company.
Prior to the argument on this application concluding, the prosecution obtained a further statement from the complainant. Although the statement referred (in part) to the violence the complainant had mentioned in her first statement, she did not suggest that there was any connection between the violence and her decision to remain in a relationship with the accused or her failure to complain.
Defence counsel said the evidence was highly prejudicial and of no probative value given it post-dated by a significant margin the alleged offending and the complainant did not suggest (explicitly or implicitly) that the violence had any connection to her decision to stay in a relationship with the accused or her failure to complain. The decision to move to Queensland was because the complainant obtained a position with the Queensland Ballet Company, and this was the bookend to the relationship. It was not necessary to lead the violence alleged to have led up to it in order to explain why the relationship ceased.
In the exercise of my discretion, I refused to admit this evidence pursuant to s 34P (2)(a) EA. The evidence of violent behaviour alleged to have been perpetrated by the accused towards the complainant is discreditable conduct, to which s 34P EA applies. However, the probative value of this evidence which, in my view, was slight if not negligible, did not outweigh its prejudicial effect. The absence of any connection to the complainant’s decision to remain in a relationship with the accused or her failure to complain, together with the fact that the alleged violence post-dated the allegations by almost two years rendered the evidence of minimal probative value to any fact in issue.
Elements of the offence
To prove the charge of Sexual Abuse of a Child the prosecution must prove beyond reasonable doubt that:
·The accused knowingly maintained a relationship with the complainant. This element requires more than proof alone of the commission of two or more unlawful sexual acts.
·Whilst that relationship was in existence, the accused intentionally committed two or more unlawful sexual acts with, or toward, the complainant.
·At the time the accused committed two or more unlawful sexual acts, she was an adult.
·At the time the accused committed two or more unlawful sexual acts, the complainant was a child.
An unlawful sexual act is any act that constitutes or would constitute, (if particulars of the time and place at which the act took place were sufficiently particularised) a sexual offence.
In this case, the unlawful sexual acts alleged are as follows[3]:
Indecent assault
[3] These are the unlawful sexual acts provided for by the legislation in force at the relevant time.
Particulars (a), (b), (c) and (d) allege the offence of indecent assault.[4] An indecent assault is an assault accompanied by, or committed in, circumstances of indecency. The prosecution must prove an assault. An assault is the intentional and unlawful application of force to another. The prosecution must prove the assault was accompanied by, or committed in, circumstances of indecency. There must be a sexual connotation. Whether an assault is indecent is for me to determine by reference to prevailing community standards of what is considered indecent.
Unlawful sexual intercourse
[4] In respect of particulars (c) and (d) if the proved conduct involved the accused taking the complainant’s hand and placing it on and in her vagina, the offence is an indecent assault.
From 1 December 1985, the conduct alleged in particulars (b), (d) and (e) also constituted the offence of unlawful sexual intercourse.[5] To prove the charge of unlawful sexual intercourse with a child above the age of 12 and under the age of 17 the prosecution must prove beyond reasonable doubt:
·The accused had sexual intercourse with the complainant.
·The complainant was of or above twelve years of age and under the age of 17.
[5] In respect of particular (e), where the proved conduct involved the complainant performing oral sex on the accused prior to 1 December 1985 the offence is one of an act of gross indecency.
Sexual intercourse is defined as including the penetration of a person’s vagina, labia majora or anus by any part of the body of another person, fellatio or cunnilingus.
Act of gross indecency
In respect of particulars (c) and (d) if the proved conduct involved the complainant touching the accused without the accused guiding her hand the unlawful sexual act is an act of gross indecency. In respect of particular (e), if the proved conduct occurred prior to 1 December 1985 the unlawful sexual act is an act of gross indecency.
At the relevant time, it was an offence to commit an act of gross indecency towards or in the presence of a person under the age of 16.
If the accused intentionally caused the complainant to perform an act of gross indecency in her presence when the complainant was under 16 this unlawful sexual act will be proved.
Indecency carries with it a sexual connotation. ‘Indecency’ means some form of sexual conduct which, in the opinion of the trier of fact, is indecent having regard to the complainant’s age, the accused’s age, the circumstances of the alleged conduct and the contemporary standards of morality and decency of right-thinking members of the community. The act must be not only indecent but grossly indecent. The word gross means something that is more than minor. It must be grossly indecent by reasonable, contemporary standards.
Issues in dispute
The central issue in dispute was whether the alleged offending as described by the complainant in fact occurred. There was no dispute that the accused knowingly maintained a relationship with the complainant and that, during the charged period, the accused was an adult, and the complainant was a child.
General directions
The accused elected for trial by Judge sitting without a jury pursuant to the provisions of section 7 of the Juries Act 1927 (SA). As Lovell J observed in R v G,[6] whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in a number of authorities: see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; and AK v The State of Western Australia (2008) 232 CLR 438 per Heydon J.[7]
[6] R v G [2015] SASC 186.
[7] [61] – [116].
The general directions were summarised by Lovell J in R v G. They are as follows:
As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.
I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.
The accused elected not to give evidence. She was under no obligation to give evidence. No adverse inference may be drawn from the fact that she has exercised that right. In particular, the silence of the accused does not constitute any form of admission, may not be used to fill gaps (if any) in the prosecution case and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.[8] The accused’s record of interview, and any admissions or denials I find contained therein, is evidence in the case that I can take into account in determining whether the charge has been proved beyond reasonable doubt. There is no onus on the accused to prove anything she said in her record of interview.
[8] Azzopardi v R (2001) 205 CLR 50 at [51] and R v Weetra (2010) 108 SASR 232 at [67].
Overview of prosecution case as opened on
The accused was the complainant’s ballet teacher from the age of 12 until she was around 20. From a young age, the complainant’s life ambition was to become a professional ballerina. The complainant left mainstream school aged 16 to study ballet full time with the accused. She became very close to the accused given the time they spent together.
The accused was 25 years older that the complainant. On the prosecution case, she exploited every aspect of her relationship with the complainant. She gave her gifts and made her feel special and talented. She told the complainant that she would make her a dancer and that she would not make it without her. The accused was grooming the complainant for her own sexual gratification. The abuse commenced when the complainant stayed overnight at the accused’s house, after the accused took her to see a professional ballet concert at the Festival Theatre. When they returned to the accused’s home after the concert, the accused offered to run the complainant a bath using bubble bath. Although she was not there when the complainant got into the bath, the complainant called out for help when the bubbles started overflowing. The accused came into the bathroom and started scooping the bubbles out of the bath and in doing so made contact with the complainant’s legs and groin area by running her hands over her. Following the bath, the accused told the complainant she could sleep with her in her bed. The complainant became anxious and said she wanted to go home. Eventually she went to sleep on the couch in the lounge room.
The accused started a new ballet studio and when it had been fitted out, there was a celebratory sleepover for some of the more senior children attending the ballet school. Everyone attending had sleeping bags on the floor of the studio. When the celebration concluded, the accused told the complainant to sleep next to her on the floor. The complainant did so and left her sleeping bag unzipped in case she needed to go to the toilet during the night. When everyone was in their sleeping bags, the accused put her hand inside the complainant’s sleeping bag and touched her genital area. The complainant pushed away the accused’s hand and went to the toilet, where she stayed for a while. Upon her return, the accused did the same thing. The complainant got out of her sleeping back and went to the toilet. Upon her return, she turned the sleeping bag the other way, so the zip was on the other side of the accused. In the morning, the accused told her that she felt nice. The accused told her not to tell anyone and that she would not be believed because ‘you’re you and I’m me’.
The complainant was sexually naïve and had not discussed sexual matters with her mother or had sexual education at school. She did not understand why the accused had behaved this way, but she did not like it.
The complainant was determined to become a ballet dancer and believed that she needed the accused’s tuition to achieve that goal. As a result, she continued to go to ballet classes with the accused all the way into adulthood. She began to sleep over at the accused’s house on weekends so she would not miss ballet classes. On the first or second of those sleepovers, she slept in the accused’s bed. The accused, who was naked, asked her to give the accused a cuddle. She told the complainant that she could make her a dancer and started to touch her legs, telling her she had strong legs. She continued to say she could make the complainant a dancer. The accused then took the complainant’s hand and moved it to the accused’s genital area causing her to digitally penetrate the accused. The accused then digitally penetrated her. This conduct during sleepovers became a regular feature of the complainant’s life. Over time, the conduct progressed to discussions about oral sex and orgasms. The accused told her how to perform oral sex on her and what she liked. The complainant then performed oral sex on the accused but when the accused offered to do the same for her she declined. Over time, the accused no longer needed to ask the complainant to touch her.
On two occasions, the accused took the complainant overseas for ballet-related trips. The first trip was to New Zealand, the accused’s birthplace, and the second was a trip to Europe with two other students. During the trip to New Zealand there was more sightseeing than ballet-related activities and for part of the holiday, they stayed with the accused’s parents. The offending continued during both trips. On each trip, the accused and the complainant shared a bedroom.
There was a period of time when the complainant’s grandparents went away for a few months and the accused house-sat for them. The complainant was also sexually abused by the accused at that house.
The sexual abuse also occurred in the complainant’s bedroom in her family home. It was not uncommon for the accused to drop students home after evening classes. The complainant was the last student to be returned home and the accused would come in for a coffee with the complainant’s parents. On these occasions, the accused would go into the complainant’s bedroom for an increasingly longer duration as time went on. Whilst in the complainant’s bedroom, the accused would touch the complainant and continue to tell her ‘I can make you a dancer’. The complainant was most concerned that her parents might walk in at any time. She did not feel safe in her own home.
When the complainant was 16 years old, she left mainstream school to study ballet full time with the accused. When the complainant was 17 years old, she was accepted into the New Zealand School of Dance and left Adelaide to live there for a year. Whilst in New Zealand she put on weight. Her parents visited her. When the accused visited her, she told the complainant she needed to lose weight.
The complainant became bulimic and lost weight. After almost a year, she returned to Adelaide. Her parents stopped supporting her financially and she felt that she had no option but to move in with the accused and work at the ballet studio to fund her own lessons with the accused. The sexual relationship resumed. However, the complainant’s bulimia worsened, and her weight dropped to around thirty-five kilograms. The accused was concerned about being blamed for the complainant’s bulimia and told the complainant that she was no longer attractive to the accused. The sexual aspect of their relationship began to wane. The complainant moved into her own bedroom at the accused’s house.
The complainant auditioned for a position with the Queensland Ballet Company and was successful. She moved to Queensland and away from the accused. Whilst in Queensland and when she was around 20-21 years of age, she dated a male dancer and in the early stages of the relationship when they were alone together engaging in consensual sexual behaviour, the complainant told him that she had been abused by her female ballet teacher.
The accused was interviewed by Victoria Police in 2021 for a period of around four hours and denied the allegations. She said she found sexual contact between two women to be disgusting and distasteful. She did however admit to having sexual thoughts about the complainant when the complainant was an adult.
The evidence
I now turn to examine the evidence in detail.
Exhibits
The following exhibits were tendered during the trial:
P1 – Plan of house at Euro Avenue, Eden Hills
P2 – Plan of house at 9 Furner Street, Morphett Vale
P3 – Photographs from the Europe Trip
P4 – Newspaper Article
P5 – Layout of the Ballet Studio
P6 – Layout of Ballet Studio as Drawn by YC
P7 – Newspaper Articles
P8 – USB Containing record of interview of the accused on 12 August 2021
MFI-P8A – Transcript of record of interview (Edited with Redactions)
P9 – Statement of Agreed Facts
D10 – Statement of Agreed Fact and annexed hospital notes
The complainant – SR
SR gave her evidence via AVL, and the court was closed. Her evidence was recorded by audio-visual means. I made orders for these arrangements to be in place pursuant to s 13 EA. Pursuant to s 13 (7) EA, I direct myself that these arrangements do not permit me to draw any inference adverse to the accused and nor do they influence the weight to be given to SR’s evidence.
SR was born on 10 April 1970. She had one brother PK who was three years older, and they lived with her parents EK and PWK. The family lived in Morphett Vale when she was growing up. Her parents still live there. Her father was a diesel mechanic and worked for a company which sold industrial equipment. Her mother did not work.[9] The house was on a corner block and had three bedrooms, a little dining room kitchen and lounge room. She and her brother had their own rooms.[10]
Overview of ballet career
[9] T 119.
[10] T 120-121.

Since the age of five, SR wanted to do ballet. She started lessons aged six. She had lessons at a ballet school in Morphett Vale until she was 12 years of age when she started masterclasses at Norwood Ballet Centre.[11] It was there that she first met the accused. She was twelve years old at the time. She had private lessons with the accused and when SR learnt that the accused was opening her own school with more structure, she decided to move to the accused’s ballet school.[12]
[11] T 121.
[12] T 122.
SR had been studying Cecchitti but preferred the Royal Academy of Dance. She was 13 years old when the accused’s ballet school, the [redacted] School of Ballet and Dance, opened. It was located in Seaview Downs.[13]
[13] T 123-4.
SR said that dancing made her feel fantastic and she was reasonably good at it. She had aspirations for a career in ballet but did not have the perfect physique for it.[14] The accused constantly told her that she would have to work twice as hard as anyone else. SR was asked if the accused was a good teacher from a technical point of view. She said:
[14] T 125.
AI’d have to say no.
QWere there things that she was able to do for you to improve your dancing.
AYeah, but the way she did it wasn’t necessary.
QTaking out the way she did it, was she able to improve you as a dancer.
AYeah.
QOkay
…
AI’m pretty sure I did the work.
HER HONOUR
Q[SR] why were you of the view that she’s not a good teacher.
AWell I think being berated all the time, having somebody put their fingernail under your leg and say ‘I should sharpen this nail to get your leg higher’, whilst being in your face with a fag out of her moth, so every one she smoked, I smoked half, the way that nothing was ever good enough. There was no positive reinforcement, there was no ‘I’m sure we can get this’, it was just like ‘that’s not good enough, do it again. Do it again, do it again’. It’s demoralising and I don’t think you need to break a student to make them dance better. You want to encourage them so that they want to get better.[15]
[15] T 126, 26-38; T 127, 1-13.
SR studied at the accused’s ballet school until 1988 when she was 17 and went to New Zealand. She went to school but after finishing year 10 she left school to study ballet full time in 1986. She was in New Zealand with the National Ballet School for 11 months before returning to Adelaide. Whilst in New Zealand her parents rented her bedroom out to her brother’s friend without informing her and upon her return she had nowhere to live. Her parents decided they did not want to pay for her ballet any longer. The accused told SR she could live with the accused and teach classes.[16] SR was asked whether she accepted the accused’s offer and she said:
[16] T 130-131.
AI really didn’t want to but I don’t know, I was homeless so yeah.[17]
HER HONOUR
QYou said that you didn’t really want to move in with [the accused] but it was either that or be homeless.
AWell that’s how I thought.
QI see. Did you have any discussions with your parents about being able to move back home.
ANot really. Mum and I didn’t really get on, so yeah, I think they saw this and in fact my dad told me that they had really enjoyed not having to run me anywhere so had decided – you know to and from classes – so had decided they weren’t going to do that anymore. So even if I had been able to move in there as I didn’t drive at that stage there is no way I could have gone and got to dancing.[18]
[17] T 131, 36-37.
[18] T 132, 18-31.
SR moved in with the accused and taught classes at the accused’s ballet school on Whitmore Square five days a week.[19] The accused assisted SR to obtain Centrelink but the small amount she received was taken by the accused for room and board. SR obtained her driver’s licence when she was 19 and still living with the accused.[20]
[19] T 132.
[20] T 133.
In January 1991, when SR was 20 years old, she moved to Queensland. She had auditioned successfully for a position in the Queensland Ballet Company.[21] She danced with the Queensland Ballet Company for just over four years until she injured her ankle, and it became too painful for her to continue.[22] Her parents told her that she could live with them, and they drove up in their caravan and she followed them back to Adelaide in her car.[23] She lived with her parents for three months but said that did not end well. She trained as a florist and then started teaching ballet at the age of 27.[24]
[21] T 133.
[22] T 134.
[23] T 134.
[24] T 134-135.
The only contact SR then had with the accused was when she went to her house with her father to pick up some videos of her when she was young. After this her contact with the accused was accidental. She saw her again in 2019.[25]
[25] T 136.
SR said she was aware that money was tight in her family in her early teenage years. Her parents told her that dancing was so expensive. The accused told her that she discounted SR’s fees.[26] SR understood that her parents paid for her trip to New Zealand with the accused and for the accommodation and spending money on the trip to Europe. SR said she washed and vacuumed their cars to pay for the airfares. Her mother got a job picking mushrooms to help pay for the trip to New Zealand.[27]
[26] T 136-137.
[27] T 139.
SR described herself as ‘so naïve’ when aged 12 or 13. She was not fashion conscious and wore clothes her mother made. She was an anxious child and had been bullied in school, especially primary school. She asked to move schools, but her mother told her to ‘toughen up’. She had one friend in primary school and did not have a friendship group at high school.[28] SR had good friends in ballet, but they were at the old school. By the time she went to the accused’s ballet school, she was not really friendly with fellow students YC or AE as they were two years younger than her, and they were rivals for the accused’s attention or in exams.[29]
[28] T 140.
[29] T 141.
SR said she was never particularly close to her mother and her father was away a lot. She got along with her father but when she hit puberty his relationship with her changed.[30] SR said that she did not talk with her parents about sexual education and she never had sex education in primary school and in year 9 in high school ‘there might have been something, but Mum never discussed it with me.[31] And as I didn’t start menstruating until I was 14, that was a big shock because I still didn’t know anything’. She said she was scared of her mother and could not have talked to her ‘about anything’.[32]
[30] T 142 -143.
[31] T 143.
[32] T 143, 13-16, 24-25.
When SR started at the accused’s ballet school, she was doing ten, possibly more, lessons a week. There were classes on Saturdays and private lessons were always on Sundays.[33] She was at ballet school three or four times a week plus both days on the weekend. Her mother usually took her to ballet and picked her up. Her parents told her they hated taking her to ballet. On some occasions, the accused dropped her home after dropping off other students first.[34]
[33] T 144.
[34] T 144.
During her period of tuition with the accused, SR was given gifts. She said it started off with motivational books, cards, stuffed toys but then progressed to a nine-carat gold necklace for her thirteenth birthday. She was also bought streetwear and tracksuits. The reasons offered for the gifts initially were a reward for doing well or occasion gifts (birthdays, Christmas) but in her later teenage years she said, ‘it ended up being something more sinister’. SR said the gifts made her feel special and she thought the accused was a kind person. [35] SR said her parents were present when the gifts were given to her.[36]
First occasion of sexual touching
[35] T 145-146,
[36] T 147.
When SR was around 12 ½ years old the accused took her to the Festival Theatre to see the Australian Ballet perform. The accused told SR’s mother that the performance would finish too late to drop her home and said SR could stay the night with her. Her mother told the accused that SR would not do that. SR explained that she had a lot of anxiety as a child and had been bullied and this led to her not being able to sleep over at her friends’ houses.[37] The accused told SR that if she did not sleep over, she would probably not take her to the ballet.[38]
[37] T 147-148.
[38] T 150.
SR went to the ballet at the Festival Theatre with the accused and then went back to her house on Hutt Street.[39] SR became anxious and told the accused she wanted to go home. The accused told her to have a spa bath and it might make her feel better.[40] The accused ran the bath and then told SR to go in and have a bath. After she got in the bath the bubbles started to grow and she was worried that she would flood the bathroom. The bath was at least half a metre deep but was not full of water. She called out to the accused who then came in. The accused then scooped the bubbles out and put them in the sink. In the process of doing so multiple times, the accused brushed her five or six times from the top of her hip bone, alongside where her vagina was and down to her thigh. The accused then told her to relax, and it would be fine. SR got straight out.[41]
[39] T 149.
[40] T 150.
[41] T 151-153.
SR put on her pyjamas and told the accused she wanted to go home. The accused said that if she went home, she would prove her mother right. This made SR indignant, and she thought to herself ‘Bugger, all right, I’ll stay’. She went upstairs and asked the accused where she was sleeping and where the spare room was. The accused said she could sleep with her. SR told her she could not do that, and she wanted to go home. The accused then told her not to worry about it and that she could sleep on the lounge. SR again told the accused she wanted to go home, and the accused said if she stayed she could have her quilt. SR only had blankets at home. SR thought to herself, “Wow. Okay, all right’ and then slept on the couch with the quilt on. Upon waking in the morning, she peered into the accused’s bedroom and saw she had jumpers on and a dressing gown with no blankets. When SR asked her where her blankets were, the accused told her she did not have any and SR had her quilt. It then dawned on SR that there was never going to be a spare bed.[42]
[42] T 153-154.
SR was asked to describe the accused’s relationship with her mother at the time she went to see the ballet at the Festival Theatre. She said:
She was like my mum’s best friend. Because, like, Mum didn’t have a lot of best friends. She had some good friends who were pretty much the wives of Dad’s friends or cousins or something like that. She wasn’t a big friendship group person. But [the accused] had ended up being really good friends, so when she would drop me home from ballet or if we were having a barbeque, Mum would invite her. So when I was a little bit more into the studio, she started, my mum, started inviting [the accused] over for dinner, and they would watch movies together. I’d go to bed, and she’d be watching – I remember one of them was an Officer and a Gentleman, that sort of thing, together. And Mum found that great because Mum suddenly had a new best friend.[43]
[43] T 155, 5-18.
When SR was 13 ½ years old these interactions abruptly stopped. The accused continued to come into the house after dropping her off and have a coffee, but the accused declined invitations when her mother extended them to her, saying she was too busy.[44]
[44] T 155-156.
SR said the accused did not live on Hutt Street for very long; she rented a place at Eden Hills. Later she lived in Clarence Park and that was the address in which SR lived upon her return from New Zealand.[45]
Sleepover at the ballet studio
[45] T 156-157.
In the first year that the accused’s ballet school opened, there was a celebratory sleepover in the studio. AE, YC, MBB and LB went as did lots of children. SR said there would have been well in excess of 25 students of all ages. They had dinner and a disco at the studio, and everyone brought sleeping bags to sleep in. The accused was drinking scotch out of a coffee cup. She was ‘a bit slurry, a bit jolly’. When it was time to go to sleep the accused told SR to sleep next to her, on her left. The zip to SR’s sleeping bag was on the side facing the accused and she left it open in anticipation of needing to go to the toilet during the night.[46]
[46] T 159-162.
The toilet light was left on but in the area where SR was sleeping it was dark. Once she was in her sleeping bag, she heard a little bit of giggling and chatting and then it went quiet. SR started to drop off to sleep when she noticed that the accused had put her hands in through the zip and travelled down and then up her nightie and into her pants. SR froze and then pushed the accused’s hand away and moved over. The accused’s hand ‘went again’. SR then got up and went to the toilet and sat on it thinking[47]:
‘Oh my god what have I done wrong. She’s drunk. This has to be because she’s drunk. Nobody does this’ and I reckon I was in that toilet for – there wasn’t a clock – but it could have easily been 45 minutes and I thought ‘Okay, I’m calm enough now. I’ll go back to bed’.[48]
[47] T 162.
[48] T 162, 37-38; T 163, 1-4.
SR returned to her sleeping bag and the accused’s hand went up under her nightie and into her pants. SR got straight up and went back to the toilet and sat there again. She again thought to herself, ‘what have I done wrong’. When she finally returned, she swapped over her sleeping bag, so the zip was facing the other side and she faced that way. There was no further touching by the accused. SR said that when the accused’s hand went into her pants ‘she put it down into my vagina and was rubbing around the clitoris area…she was absolutely touching my vagina skin to skin down in my undies’.[49] SR explained that on each occasion the accused was touching the outside of her vagina in between the labia and was rubbing her clitoris with two fingers in a circular motion.[50]
[49] T 163,
[50] T 164.
SR said that her reaction was to freeze, and she felt as if she could not move:
…I mean, I’d had no sex education till then and I couldn’t believe this was happening from somebody I looked up to, and I thought – honestly, I thought I’d done something wrong that she was drunk and doing that. I immediately blamed myself, gosh, I’ve done something wrong, I’ve acted the wrong way or maybe I was too nice or – I didn’t know.[51]
[51] T 164, 24-30.
SR eventually went to sleep. The next day she was in the kitchen area to make a cup of coffee, and the accused came in and leaned over and said, ‘You felt nice’. SR pulled back and said, ‘I thought you were drunk?’ The accused said, ‘nope’ and SR responded ‘oh my god. I can’t believe that’. The accused then told her, ‘You can’t tell anyone, because after all, you’re you and I’m me. No-one’s going to believe you’.[52] SR was asked what she thought when the accused said this:
[52] T 164-165.
AI thought why would I tell anyone anyway? If I told mum, who I couldn’t talk to anyway, she’d stop me dancing, and how embarrassing. Mum probably wouldn’t believe me anyway.
QWhat do you mean, ‘how embarrassing’.
AWell, how I didn’t have words for my own body parts at that stage, how would I then say to my mum, ‘oh by the way, [the accused] just put her hands down my pants and molested my vagina’. I mean, these weren’t words I used or even perhaps knew how to say. I didn’t have a conversation for that.
HER HONOUR
Q[SR] at that age did you have any words that you or members of your family used for private body parts.
ANo. It literally was never mentioned. We never talked about anything. It wasn’t even the pet names like a willy or a – you know anything. There was no conversations about sexuality at all.
QAnd amongst friends that you had at the time.
ABy that stage I didn’t have any friends. I was pretty well isolated.[53]
Sleepovers at the accused’s house.
[53] T 165, 18-28, 30-38, T 166, 1.
SR explained how she came to sleep over at the accused’s house after this incident. Her brother was involved in motorcross at Kadina. Her father would also ride. She said:
…and when I was really young, I used to have the great pleasure of having to go and watch them go round this great big track. It took all day, plus the travel. You would sit in the car in the freezing cold and watch bikes go around, bored out of your brain, and it would take pretty much the whole weekend. So as it was coming up to that sort of season where the motorbike racing would start again, I must’ve been complaining about having to go – I know I used to complain about that a lot – and [the accused] said to my mum that she can stay at my place if you want, that way she doesn’t miss out on her dancing, which seemed like a great thing for mum and dad, and for me on one side of it I was really pleased because I still got to go to dancing on Saturdays and have my private lessons, but then the other side was a worry.[54]
[54] T 166, 16-31.
SR said her mother was quite happy with this arrangement because she did not have SR sitting behind her in the car the whole time whinging about how bored she was. After this, she slept over at the accused’s home every second weekend. She slept over on Friday and Saturday night and would go home on Sunday. She was 13 ½ years old when the sleepovers started.[55]
[55] T 167.
When motorcross season, (which lasted for two to three months over winter) ended, SR continued to sleep over at the accused’s house. SR said this was because her mother and father hated having to drop her off and pick her up and so they were quite happy to opt out of that. Her parents told her they were glad they did not have to do any more running around.[56]
[56] T 167-8.
SR’s parents once went to the accused’s home in Eden Hills. SR was there at the time because she had slept over. The accused gave her parents a galah named Charlie.[57] A plan of the house at Eden Hills was tendered: Exhibit P1. The first time SR went to the accused’s home in Eden Hills it was for a sleep over. There had not been any prior discussion about where she would sleep. There was a second bedroom in the house, but it was set up as a dining room. SR slept in the accused’s bedroom when she stayed the night.[58]
[57] T 168.
[58] T 169-171.
On the first occasion that SR went to the accused’s house for a sleepover, she asked the accused if she was going to be sleeping on the lounge and the accused said, ‘no you’ll have to sleep with me, or we can’t do sleepovers’. SR did not respond because ‘that would have meant that I couldn’t have danced’. The first sleepover was about six months after the sleepover at Hutt Street. It was in May or June when motorcross started.[59]
[59] T 172-173.
SR had her nightie on and got into bed but was on the edge. The accused asked her to come over and give her a cuddle, so she did. The accused was naked. The lights were off. SR did not think there was anything wrong with a hug and the accused pulled her around to face her and they cuddled. The accused then rolled onto her back and told SR that SR could make her happy and she would show her how. The accused grabbed her right hand and placed it on the accused’s vagina. The accused told her how much she loved watching SR dance and that she thought she could have a career, but she needed really strong legs. The accused brushed her hand down her thighs. The accused then guided her hand around and told SR she could put a finger inside. SR did this.[60]
[60] T 174-175.
The accused guided SR’s hand to her clitoris and told her, ‘if you circle around, you can have what is called an orgasm’.[61] SR did not know what an orgasm was. SR was asked what she was thinking at this time:
Oh my god, I hated myself. I was like ‘What is going on, this is so wrong’. I knew what she was doing was wrong, I felt kind of trapped by it. I didn’t want her to get angry because she’s not nice when she’s angry. And honestly, I think my brain was just going 100 miles an hour and I was thinking, ‘It will be over soon’.[62]
[61] T 176, 5-7.
[62] T 176, 15-20.

The accused told SR she could do the same to her, but SR said no. The accused told her to keep going on her clitoris and her breath changed and she shuddered, and SR presumed this was an orgasm. SR got up and went to the toilet and ‘felt like the dirtiest most disgusting person alive’[63] and then went back to bed and slept.[64] Later in evidence, SR said that the first time she ever had to massage the accused, she told her that when her breathing changed as she shuddered, this was an orgasm. At a later stage, the accused offered to give SR an orgasm, but she said no.[65]
[63] T 181, 28-34.
[64] T 181.
[65] T 191.
SR said that what happened was ‘not normal’ and that:
…normal is male and female when I grew up…that’s the way I’d been brought up, that a relationship was between a man and a woman, obviously I was way too young for that, so that was another complication about what I thought, was, ‘Why am I having to do this at this age?’ I didn’t understand what was going on and what I was doing wrong to have this happen.[66]
[66] T 181, 38; T 182, 8-14.
Every time SR slept over at the accused’s house the same sexual contact would occur. The sleepovers continued until she went to New Zealand to go to ballet school for 11 months.[67] The sexual contact would start with the accused touching her, but SR used to clench her backside and squeeze her legs together. This was preceded by the accused saying, ‘do you know I love you’ and ‘I can make you feel good’.[68] The accused would rub SR’s clitoris and try to get into her vagina but was not able to.[69] There were occasions when the accused touched her inside her vagina but because she was clenching it could not go in very far.[70] The accused would then say ‘well, let’s do me’.[71] Things changed when oral sex was introduced and ‘she just liked to cut to the chase with her receiving that’.[72] The accused would not touch SR but just wanted oral sex.[73]
[67] T 187.
[68] T 192.
[69] T 192.
[70] T 192.
[71] T 188, 15.
[72] T 188, 28-29.
[73] T 188.
The second time she slept over, the accused said, ‘there is such a thing as oral sex’ and asked SR if she had heard of it. [74] SR said she had not heard of sex, let alone oral sex so she said ‘no’.[75] The accused gave a brief summary of what that would entail and SR said no. The accused ‘dropped it then and just the manual touching her happened’. The accused brought it up repeatedly and SR would have the same reaction. Later in the year, on a day when there was a thunderstorm and lightning, and the accused was in a ‘feral mood’ the accused told her the only way she would make her really happy was if she gave her oral sex.[76] SR explained:
So I laid down and she told me to put my head between her legs whilst telling me how much she loved me, like that would somehow make it better. And then she instructed me on how to lick her clitoris. It was probably the single most degrading thing I’ve ever had to do. The taste and smell I don’t think I’ll ever forget. After she have an orgasm she grabbed my face and there’s still muck – muck all over my face and she grabs my head and she says, ‘One of these days you’re gonna hate me’, and I’m shaking, I’m ‘No, no’. I got up and I went to the bathroom and couldn’t scrub my face enough. If I had bleach, there I probably would have swallowed bleach. That was the first time.[77]
[74] T 188, 38; T 189, 1.
[75] T 189, 2-11.
[76] T 189-190.
[77] T 190, 13-25.
There were other occasions of oral sex because ‘once she found that out she was hooked’. During oral sex the accused would give SR one of her pep talks and tell her what she could work on when she was dancing and how much she loved her.[78] Oral sex occurred almost every time she slept over at the accused’s house.[79]
[78] T 190.
[79] T 191.
SR described the accused as one of the nastiest people she had come across. The accused ‘degraded’ SR and reduced her to nothing. She had no self-esteem left. She told SR that unless SR did it the way she wanted there was no way SR would be a dancer. Being a dancer was all SR ever wanted. SR thought the accused was telling her that unless she gave her oral sex, she would never be a dancer.[80]
[80] T 191.
SR was asked why the sexual contact continued:
Because it was always held against me that if I didn’t do what she said I wouldn’t be able to learn ballet from her and she made it very clear that nobody else would want to teach me because my body wasn’t right for dancing…
…
All I ever wanted to do was dance. I probably would have walked over hot coals if it meant that. There was a part of me that thought that I could shut off all of that horrible, if it meant that the goal at the end of it was dance, that I could put up with that if it meant I could get to the end of dance.[81]
[81] T 194, 28-32; T 6-11.
There were occasions when SR could not allow herself to like what the accused was doing but she felt as if some part of her body did like it.[82] She could not handle this and to avoid it, would give the accused oral sex.[83] SR never talked to the accused about the sexual contact.[84] SR would not allow the accused to perform oral sex on her. She would say, ‘No I’ll do it on you’.[85]
[82] T 193, 7-9.
[83] T 193.
[84] T 194.
[85] T 195, 18.
The sexual contact always occurred in the bedroom but there was one occasion when SR was having a shower and the accused touched her sexually:
…I just had a head full of shampoo and the water was all over my hair and the next thing I knew there was a finger up inside of me and I turned around it was her, she’s naked, she jumped in behind me, well I quickly rinsed off my hair and got out…[86]
[86] T 196, 2-7.
SR started menstruating when she was 14. She did not know what was happening because her mother had not told her about periods. She initially thought she was dying but her mother said, ‘no it’s all right you’re a woman now’. Her mother gave her a tampon and told her it went up inside. SR said that she could not do that because the accused had ‘been poking’ her fingers around in there before. She told her mother ‘I can’t do this’ and was then given a pad. The accused told her she should be using a tampon because pads were visible in ballet class. The accused told her she could help her.[87] One weekend, the accused told her she would show her how to use a tampon. SR explained what happened next:
…she said, ‘Come in the bedroom’ so I go in there and there’s a soft toy rabbit on the bed…and there’s a towel laying down on the bed, and I’m like ‘What are we doing’. She’s like ‘I’ll help you use one’ and I said ‘Have you got an applicator’ and she goes, ‘No, no ,no I’ll just use my finger’. I was like, what, and she goes ‘just lay down’ so I had to take my pants off, I had to lay down with my legs out like a frog, like you do when you have a pap smear, for all the ladies in the audience, and then she took, it was a mini tampon because I think it was kind of small, and she spent an incredibly long amount of time with her head down the business end inching this painfully tight area of me with this tampon up inside.[88]
[87] T 196.
[88] T 197, 4-20.
The accused told her that she would not feel the tampon when it was up there, but SR told her. Eventually the accused pulled out the tampon and it was bent. She got another tampon and despite SR telling her not to, the accused inserted it and told her she would be right from then on. SR then went to the toilet and pulled it out and it was bent.[89]
Sexual contact in SR’s home
[89] T 197-198.
When the accused dropped her home, she always came in for a coffee. It was SR’s bedtime, and her father would come into her bedroom and wind up her clock and say goodnight. Her mother would yell ‘goodnight’ from the lounge room.[90] Her parents were always home. The accused would always come in and tuck her in. Initially, the accused would come in for about fifteen minutes and sit on her bed and give her a pep talk:
They were always about the same, about what you can do to be a dancer and it was always around my ballet – except her hands used to go under the bed covers and into my knickers. My body was frozen. Again, I was squeezing my backside until it just about burst and my eyes would be glued on my open bedroom door. So, in the beginning, every time she would come up, it would be maybe 15 minutes. But then it started getting longer. So, the touching of me went on longer. I was so shit – excuse me, very scared that my parents would come up. You know, they never came up. By the – later on, she would’ve been in my room 45 minutes to an hour. What did they think was happening?[91]
[90] T 199.
[91] T 200, 18-30.
SR said the accused would tell her how much she loved her and how talented she was while she was rubbing her clitoris. SR said her clitoris would get aroused, much to her shame. She was terrified she would get caught, because she would get the blame. If she did get caught, that would end the cycle she was in but would also mean the end of dancing.[92]
[92] T 201.
A plan of SR’s family home in Morphett Vale was tendered: Exhibit P2. SR’s room was immediately adjacent to her brother’s room.[93]
The New Zealand holiday
[93] T 204.
At the end of 1984 or early 1985, when SR was 15 years old, the accused told SR she wanted her to audition for the Royal New Zealand Ballet Company. At the time SR did not know that ‘no 14-year-olds would ever do that’ and neither did her parents. SR’s mother told her that she paid for SR’s airfare and had loaned money to the accused for her airfare.[94]
[94] T 205.
For the first week of the trip to New Zealand, they stayed with the accused’s parents. They slept in the spare room that had two single beds. One night the accused told SR to get into bed with her and SR touched her vagina until she had an orgasm. Whilst staying with the accused’s parents in Napier, they went sightseeing. In the second week they stayed at different Holiday Inn Motels in Rotorua, Taupo and Palmerston. Sexual contact of the same type occurred at almost all of these locations. It was not until the last day that she went to a ballet class. As they arrived late, she had not warmed up and she started crying and said she would not do the class and the accused got angry. The accused pushed her through the door in front of all of ‘these professionals’ and SR did the rest of the class, but she spent most of it snivelling. She felt embarrassed and mortified.[95]
Full-time ballet school
[95] T 207-208.
SR left school to commence ballet full time after completing year 10 and when she was 15 turning 16. This was at the accused’s suggestion or instigation. Her mother was very negative about the idea.[96] Up until that time she had been enjoying going to school but did not have a great friendship group. Her grades were B+ and A-. SR loved the idea of studying ballet full time because ‘the more ballet I could do the better’. SR said when she went full time, she would catch the bus down and the accused would pick her up on the way through and they would go to the studio and start an exam class around 9am and continue through for 12 hours. However, in the morning after a class, the accused would take her shopping at the Marion Shopping Centre.[97]
The trip to Europe
[96] T 208-209.
[97] T 210-211.
The accused had planned classes for SR at the Royal Danish Ballet School, the Royal Swedish Ballet School and the Royal Norwegian Ballet School. Two other girls went on this trip, YC and AP (nee AE). They were 14 years old, and SR was 16. The trip was over Christmas and lasted 6 weeks. They travelled to London first for a week of sightseeing and then spent a week in each of the three countries.[98]
[98] T 212-213.
AP and YC shared a hotel room. SR and the accused shared a hotel room. SR asked if she could share with the other girls and the accused said no. There was sexual contact during the trip, but not every time, and it was mainly SR touching the accused. There were occasions of oral sex. YC asked if she wanted to swap rooms, but SR did not think she could do that to her.[99] Photographs from this trip showing SR, AP, YC and the accused were tendered: Exhibit P3.
Grandparent’s house
[99] T 214.
SR’s grandparents would travel each year in a caravan to Hervey Bay, Queensland and stay for 3 or 4 months from May to September. When the accused’s lease at Eden Hills expired, she offered to look after their house while they were away, and they agreed. SR stayed at her grandparents’ house with the accused every second weekend. Each occasion she stayed over, she performed oral sex on the accused in her grandparents’ bed. SR could not recall any specific occasion when the accused touched her sexually, but SR touched the accused with her hand more than once. All she could recall about those occasions was that it seemed to take so long. Each sexual act occurred at nighttime. After her grandparents returned, the accused moved into another house two months before SR moved to New Zealand for 11 months. SR did not go to that house during those two months.[100]
Other ballet schools
[100] T 218-221.
SR took exams whilst she studied ballet with the accused. The last exam she did was an advanced one called the Solo Seal. It took her two years of preparation to be ready to take the exam. The accused decided when she would take it.[101] SR knew of other girls at other ballet schools who had taken this exam. SR was asked how many other ballet schools there were in Adelaide when she was being taught by the accused and she said:
There’s a lot. Predominantly, the best ones were Sheila Lang, Terry Simpson and Susan Taylor. Now, they all three of those had full-time programs at their school, but they were all centrally located right in the city, and my parents just said, ‘Nah’. That and they were obviously a lot more expensive – got probably a better outcome, but yeah, that much of a distance wasn’t something my parents were going to do.[102]
[101] T 221-222.
[102] T 223, 30-37.
SR was asked if she ever thought about going to another ballet school in the lead-up to going to New Zealand:
Absolutely, like, a lot. And there were times that I mentioned it to [the accused] and said that maybe I should go and I could do some classes somewhere else as well. And that was categorically closed down. I was then guilt-tripped, you know, ‘Nobody’s going to look at you. You go there, you’re going to be a no-one’. It just wasn’t worth bringing it up after a while because there was a lot of verbal abuse involved. And you really can only keep bashing your head against a brick wall for so long before you realise your head is hurting.[103]
Physical contact during ballet lessons and comments on appearance
[103] T 224, 22-32.
SR said physical contact in a dance class was not uncommon and touching a student to physically correct a stance would occur. However, the accused would come in ‘and just grab you and be right in your face and sort of grab your body, and it’s not necessary to teach because in dance you’ve got to feel your body in those positions’.[104] The accused did not physically correct other students.[105]
[104] T 226.
[105] T 227.
At the end of the last class on a Monday night, the accused would weigh each student. The accused had cards with the name and weight of each student and if a student weighed more the following week, they would be berated. SR recalled being told she was fat because she had put on four pounds. SR understood that in the 1980’s the ideal ballerina shape was a shorter body, longer legs, nice square shoulders, a long neck and thin. SR then gave this evidence:
HER HONOUR
Q[SR], was the topic of weight and being thin something confined to your teaching by [the accused] or did you encounter that in other ballet schools in which you were involved.
ANowhere else.[106]
HER HONOUR
Q…Is it your evidence that in no other ballet school in which you had participated or any other lessons you had with any other ballet teachers, there was never any weighing of you or other students.
ANo. No other place that I had been to full-time or anything, because the amount of exercise you do, dancers need to be strong. You are what you eat, for strength.[107]
[106] T 228, 9-13.
[107] T 234, 2-9.
SR said being weighed was demoralising and embarrassing.[108]
[108] T 229.
SR said the accused went through a stage of thinking that SR would look more striking on stage with black hair. One weekend the accused appeared with a hair dye box and said she was going to do her hair. SR hated it.[109] The accused also shaved SR’s legs, something she was not allowed to do at home. SR was happy to have shaved legs.[110]
[109] T 230.
[110] T 231-232.
The accused bought SR different tracksuits which were better quality than the clothes she used to wear. Often the clothes the accused selected for SR were similar to the accused’s clothes and SR found this embarrassing. She did not tell the accused this because the accused scared her. The accused was very strong and would tell stories which always had an element of menace or violence to them, and SR came to believe that there was a possibility of violence.[111]
[111] T 233.
SR said the accused liked to be the ‘person sitting on the throne’ at ballet school:
We had to idolise her. When we left the studio at night – so if I was being – was being picked up by my dad or – which wasn’t very often, but if I did, we all had to go and give her a kiss on the cheek before we left. Now I observed at least two other girls having to do the same thing. When I would perform on stage, you, at the end of a performance you normally do a curtsy to your audience and you leave the stage. She would stand in the wings…and I was required to then turn to her in the wings and do a thank you rolling curtsy to her…[112]
[112] T 237, 16-27.
SR said she did not want to kiss the accused on the cheek, but she did it because she did everything she was told. The curtsy was embarrassing because nobody else did it. SR was too scared to tell the accused she did not want to do these things. She saw the accused thump furniture and that sort of thing. Her face would change, and she did not like that change. [113]
Injuries
[113] T 238.
At one point, SR fell during ballet and injured her spine. She was in a lot of pain and could barely move. The accused took her to see a chiropractor a couple of times a week for a few weeks. The treatment was excruciatingly painful. Her parents knew she was seeing a chiropractor and gave her their health insurance card and cash.[114]
Accused’s treatment of other students
[114] T 234-237.
SR said the accused was less interested and invested in some of the other students. The accused went through the motions with the other students. SR said she was definitely up the top of the hierarchy; she was the oldest and the most proficient. SR saw the accused relentlessly picking on other children until they cried. This would happen again and again until the children left the school. Even though she felt guilty, SR did not intervene because she was glad it was not her.[115] Whenever SR became defiant in class because she thought the accused was being nasty the accused would say, ‘No one’s going to make you into anyone; you have to do what I say; this is what we do; and no one’s going to believe you’. This was pretty regular.[116] No one else was present when this was said.[117]
[115] T 240.
[116] T 241.
[117] T 243.
The accused would ‘get a bit brazen in front of people’. She had nicknames for body parts; a vagina was a ‘hoo’ and breasts were ‘zoomies’. She first used these nicknames and explained their meaning at her house in Eden Hills. She would then use these nicknames in class as a taunt to SR.[118]
[118] T 242-243.
A newspaper article featuring YC and SR when she was 14 years old was tendered: Exhibit P 4. The article was arranged by the accused.[119] A plan of the layout of the accused’s ballet studio was tendered: Exhibit P5.
SR’s time at the New Zealand ballet school
[119] T 245.
The accused completed the paperwork which qualified SR for a part-scholarship to attend the New Zealand Ballet School.[120] SR then went to New Zealand in 1988 when she was 17 years of age and turned 18 whilst there. She had never lived away from her family. She lived in hostel accommodation with a communal kitchen. She was responsible for her own meals. SR had been very conscious of what she ate when she was at the accused’s ballet school because she was told not to put on weight. When she was in New Zealand it was a ‘free-for-all’ and she rapidly put on weight.[121]
[120] T 224, 293.
[121] T 248-250.

SR suggested that ‘nowhere else’ in ballet schools had she encountered the topic of weight, being thin or the weighing of students and that the accused’s practice of doing this was demoralising and embarrassing. AP said she was weighed at the accused’s studio and also at her next full-time studio which was one of the top ballet studios in Adelaide. She said at that time dancers were skinnier than ever, and it was ingrained that to be a dancer you had to be thin. YC said that there was a specific body shape for a ballerina – very long, lean and very skinny. I accept the evidence of YC and AP on this topic and I infer and find that the desirable weight and body shape of a ballerina in the 1980s was not a matter unique to the accused’s method of teaching ballet. It is noteworthy that when SR successfully auditioned for the Queensland Ballet Company, she said she weighed around 6 stone (or approximately 38 kilograms). When the accused took her to the Flinders Medical Centre on 29 March 1989 following her return from 11 months with the New Zealand School of Dance, SR said she weighed 5.5 stone. Her extreme thinness was clearly not something that saw her precluded from dancing with either of those ballet schools. At one point in her evidence, SR said she fit the body type for Queensland Ballet Company.
SR said that the accused would relentlessly pick on other students until they cried and eventually left the school. YC, however, described the accused’s manner and tone when dealing with other students as at times really supportive and at other times, she would say tell the students to do it properly and that she had told them one hundred times. AP said the accused was very particular and would make the students repeat exercises until they were perfect. Some students were in tears because they could not handle that sort of scrutiny, and it was intense at a young age.
SR said that the students had to idolise the accused and when they left the studio at night, they all had to give her a kiss on the cheek before they left. YC said there was no ritual at the end of a lesson or when the students left the studio beyond doing a curtsy and saying goodbye. YC did not recall giving the accused a kiss on the cheek as she left. AP did not recall any students kissing the accused as they left the studio. They would curtsy to her which was a custom in ballet. If kissing the accused had been a ritual as SR described, I would have expected YC and AP to recall it.
I prefer the evidence of YC and AP on the topic of the accused’s behaviour towards students, her qualities as a teacher and that being weighed, being thin and of a particular body shape were not unique to the accused’s style of teaching. I formed the distinct impression that SR was trying to paint a picture of the accused as a person who was controlling, manipulative and used methods of teaching and instruction that were aberrant and unnecessary.
I find that the accused did everything she could to advance SR’s career including arranging for her to have a scholarship to attend the New Zealand School of Dance in 1988 and taking her, with YC and AP, on a ballet study tour to Europe in 1986. The accused promoted SR and other students in the media. It was because of the accused that SR was on a television show that led to the donation which funded her trip to Melbourne to audition for the Queensland Ballet Company.
It was plainly in the accused’s interests as a ballet teacher to promote and encourage talented students and provide them with opportunities to learn and excel. The evidence of AP establishes that the accused treated SR’s talented contemporaries in similar manner. At one point in cross-examination SR said that the accused was happy she won a place in the Queensland Ballet Company because it made her look good. When it was then put to SR that the accused was pleased that SR was going to Queensland to dance with the Queensland Ballet Company, SR then said as the time got closer the accused kept telling her it would be good if she stayed, and she would give her half her studio. I agree with defence counsel’s submission that the cross-examination on this topic revealed SR’s propensity to qualify her evidence when she thought she had given an answer that undermined her account. I reject SR’s evidence that the accused tried to sabotage her attempts to audition for the Queensland Ballet Company by suggesting she wait until the auditions came to Adelaide and then once successful in the audition begged her to stay and offered her half of her studio. Such behaviour was inconsistent with the accused’s promotion of SR and other talented students as described by AP and YC and established by the articles about them in the media.
Finally, having received D10 as a business record and having found that the notes accurately record what SR told hospital staff on 29 March 1989, I infer and find that those statements were an honest account of SR’s feelings towards the accused at that time. Whilst expressions of love and affection for a person do not, of themselves, mean that person cannot be a perpetrator of sexual abuse - a victim of sexual abuse might nevertheless love and care for his or her abuser – that is not the issue here. Those statements are inconsistent with the evidence of SR regarding her feelings towards the accused at all material times. In evidence, SR refused to accept that she would have described the accused in the terms recorded in D10.
I am left with considerable disquiet regarding the credibility and reliability of SR’s evidence regarding the accused’s methods of teaching and behaviour towards students and her own relationship with the accused.
Implausibility of account – reasons for remaining in accused’s ballet school and moving in with accused upon her return from New Zealand
There was a clear conflict between the evidence of SR and her mother EK on two material topics; (a) why SR remained in the accused’s ballet school (b) why SR moved in with the accused upon SR’s return from New Zealand. The conflict is not explicable by reason of faulty or imperfect recollection.
In evaluating the competing evidence, I have made findings regarding EK’s credibility and reliability. I formed a favourable impression of the evidence of EK. She did not appear to hold any bias towards her daughter or against the accused. She gave her evidence in an unvarnished and straightforward manner and seemed to be doing her best to recall the events she was asked to describe. Her memory was understandably imperfect, for example, she could not recall SR travelling to New Zealand for a holiday with the accused, but her memory of other relevant events and circumstances was good.
I accept EK’s evidence that she supported her daughter in her passion to study ballet despite misgivings about SR leaving school at the end of year 10. There was no suggestion in her testimony that doing so caused her any difficulty or inconvenience. That she took up a job picking mushrooms to fund her daughter’s stay in New Zealand demonstrates her willingness to support her daughter’s passion. I accept EK’s evidence that she and her husband paid for most of SR’s trip to Europe and that she and her husband continued to pay for some, but possibly not all of SR’s lessons until she went to Queensland.
When asked whether driving SR to ballet took up much of her time she answered, simply, ‘No, not really’. I find that EK was being truthful when she said this. I reject SR’s evidence that she was told by her mother that she hated picking her up from ballet. I accept EK’s evidence that she took SR to the ballet studio most of the time and that the accused started dropping SR home not long after she started at the accused’s ballet studio.
I also accept EK’s evidence that the accused would come in three times a week, have a coffee and stay for half an hour. I prefer EK’s evidence regarding the relationship she had with the accused over the evidence of SR on this topic. SR suggested that for a period of time the accused was her best friend and would be invited to barbeques, they would watch movies together and have dinner.
I accept EK’s evidence regarding her concern about the influence the accused was having on her daughter. However, I do not draw any sinister inference from EK’s stated concern about the influence the accused was having on SR and the amount of time they were spending together. I am satisfied on the totality of the evidence before me that SR spent most of her free time studying ballet with the accused and had no other interests or hobbies and would not play sport. She stopped attending school at the end of year 10 to study ballet full time. This would naturally be a concern to a caring mother. EK’s impression of the influence the accused was exerting over SR is consistent with the evidence of AP, YC and the statements made by the accused to Janet Kerr that some parents have no idea and only she could train the children into becoming prima dancers, and only if she could take complete charge of them. In these circumstances, I find it implausible that EK would have told SR that she hated having to drop her off and pick her up from ballet and was happy to be relieved of that obligation by SR sleeping at the accused’s house on weekends after motorcross season.
It was this concern that led EK to suggesting to SR that she attend a different ballet school. She said that SR did not like that suggestion. This evidence stands in stark contrast to SR’s evidence on this topic. SR gave evidence that she had a conversation with her parents about going to a different ballet school, but they were not prepared to travel that distance and said no. She did not recall any occasion when her parents gave her the opportunity to have a different ballet teacher. I reject SR’s evidence on this topic. I consider it likely that SR gave this evidence because if she acknowledged the reality of the situation, namely that she enjoyed being taught by the accused and rejected her mother’s suggestion to move schools, this would, in her mind, undermine her account of the accused’s sexual abuse of her. I am satisfied that SR was untruthful on this topic.
I find that the family trips to Kadina for motorcross on weekends during motorcross season were the genesis for the weekend sleepovers at the accused’s home. I accept SR’s evidence that she disliked intensely travelling to Kadina to watch her brother in motorcross and did not want to miss ballet lessons. I am not able to make a firm finding as to the inception of the arrangement or at whose behest it was, but I consider it likely that the topic was raised with the accused, and she offered the solution of SR sleeping over at her house.
I reject SR’s evidence that when motorcross season was over her parents told her they did not want to take her to ballet lessons and that is why she continued to stay over at the accused’s. I formed the distinct impression that SR was at pains to suggest that there were no alternative means to get to ballet other than to stay with the accused overnight. I find that SR stayed at the accused’s house because she enjoyed staying there and not because she had no other means of getting to ballet classes. I consider it likely that SR gave this evidence because if she acknowledged the reality of the situation, namely that she willingly stayed over at the accused’s house, this would, in her mind, undermine her account of the accused’s sexual abuse of her. I am satisfied that SR has not been truthful on this topic.
On SR’s account, by the time she went to New Zealand for 11 months she had been the victim of sustained sexual abuse at the hands of the accused which repulsed her. She feared the accused and felt powerless. When she returned from New Zealand, she was an adult and had lived away from the accused for a relatively lengthy period. SR said that she could not move back into her parents’ home upon her return from New Zealand because her parents had rented out her room to one of her brother’s friends. In cross-examination she refused to accept that it would have been preferable to be living with her parents rather than the accused, who had been sexually abusing her. SR sought to justify this by asserting that if she lived with her parents, she had no way of getting to ballet because her parents would not take her, she could not drive a car and she was too nervous to catch buses. I found that evidence implausible.
EK’s evidence on this topic was in direct conflict with that of SR. EK said that SR’s room was occupied by her son’s friend for a couple of months when SR was in New Zealand, but he had left, at EK’s request, before SR returned from New Zealand. EK was unequivocal in her evidence that SR’s room was unoccupied by the time SR returned. She said ‘definitely’. I am satisfied that EK’s memory on this issue was accurate and reliable and accords with commonsense. I also accept EK’s evidence that SR would come home on some weekends and stay overnight, sleeping in her bedroom. I accept EK’s evidence that on some occasions she and/or her husband picked up SR and brought her home. I reject SR’s evidence that she could not move home because her room was occupied. I find that SR was untruthful on that topic because she did not wish to acknowledge the reality of the situation, namely, that she wanted to live with the accused.
I find that SR was at pains to again paint a picture of there being no option other than to live with the accused because to acknowledge the reality of the situation – that it was her choice – in her mind undermined her account of the sexual abuse. I find that SR has been untruthful on that topic.
Difficulties attending SR’s account of offending
There were aspects of SR’s account of specific occasions of sexual abuse that were undermined by prior inconsistent statements or contradicted by the evidence other witnesses whose evidence I have accepted as truthful and reliable, or otherwise implausible.
SR’s account of the number of students at the studio sleepover was at odds with YC’s evidence. I prefer the evidence of YC on this topic. She was able to nominate the four students who slept over and that they were the oldest students at the school. She had a good recollection of the sleeping arrangements, in particular where SR and the accused slept. Importantly, YC said there were only about 20 students when the studio opened and the youngest were 3 or 4 years old. She said the sleepover took place not long after the studio opened. It is unlikely that the sleepover would have involved students as young as 3 or 4.
An important aspect of SR’s account of the offending on this occasion was the number of children at the sleepover which she said was about 25. It was the number of children sleeping there which made going to the toilet difficult and was the reason SR proffered for leaving her sleeping bag unzipped, enabling the accused to touch her on the vagina.
I am satisfied that there were several proved prior inconsistent statements made by SR regarding what occurred on the first sleepover at the accused’s house in Eden Hills. They related to whether penetration occurred, the length of time over which the contact occurred and whether the accused had an orgasm:
1. In evidence SR said that the accused put SR’s hand on the accused’s vagina and made her touch it outside and inside it and there was penetration, not all the way in, but enough in. She agreed it was a bit more than skin on skin. The accused had an orgasm; the accused told her immediately afterwards that she had had an orgasm. SR was touching the accused for a little while, possibly 10-15 minutes and not as short as 5 or 10 seconds. Approximately at least half of her finger went inside the accused’s vagina. In her 2020 statement SR omitted to mention that she had touched the accused inside her vagina. In her August 2022 statement, she said, ‘When I said she grabbed my hand and put it on her, I mean she made me touch her vagina skin on skin but without penetration at first’. SR did not refer to any occasion of penetration in that statement. There was no mention of penetration in her 2025 statements.
2. There was no allegation in any of the four statements that the accused had an orgasm on this occasion. In SR’s 2020 statement to police, she said ‘she grabbed my hand and put it on her. She made me touch her vagina on the outside. She said that there was such a thing as an orgasm and told me what to do to give her one. She was telling me to rub her clitoris. She had my hand and was rubbing my finger on her hand, showing me what she wanted me to do. I then touched her the way she asked me to for a very short time and then I said that I needed the bathroom. I got up, went to the bathroom, I came back to bed, and she didn’t do anything further that night. We both went to sleep. The next morning, she never said anything about it’.
When confronted with these inconsistencies, SR said she could not bring herself to say everything at a time when she was falling apart having to ‘verbalise something’. In evaluating this explanation, I have had regard to the fact that SR was given the opportunity to check her statements and correct any errors. SR corrected an error in one of her statements relating to the existence of stairs in her family home. I regard these inconsistencies as material because they relate to an occasion SR said had stuck in her mind and was the first occasion of prolonged sexual abuse in the accused’s home.
SR gave evidence that the accused had an episiotomy scar. No other evidence was led to confirm or refute this assertion. This evidence is of no probative value.
The evidence of SR regarding the opportunities the accused had to sexually abuse her in her own bedroom was contradicted by the evidence of EK. SR gave evidence that the accused always came in for a coffee when she dropped her home. It was SR’s bedtime, and her father would come into her bedroom and wind up her clock and say goodnight. Her mother would yell goodnight from the loungeroom. SR said the accused would always come in and tuck her in. Initially she would stay for about 15 minutes and sit on her bed and give her a pep talk. After a few weeks, the accused put her hands under the bed cover and into her knickers and rubbed her clitoris. Thereafter, time the accused spent in her bedroom touching her increased to the point that the accused was spending 45 minutes to an hour in there.
A prior inconsistent statement regarding the timing of the commencement of this abuse was proved. SR told police in 2020 that the abuse started after the best part of a year. She said that maybe it felt like a few weeks later.
EK said the accused came over three times a week for a coffee after dropping off SR. EK did not think that the accused ever went to say goodnight to SR, and she could not recall a time when the accused went to SR’s bedroom. EK said it would have been unusual for the accused to have gone into SR’s bedroom and said goodnight. When asked if the accused went into SR’s bedroom to say goodnight and stayed there for 45 minutes to an hour she said, ‘no that didn’t happen’. She said she would have noticed that. EK said PWK did not go into SR’s bedroom to say goodnight, SR would say goodnight to him in the lounge room.
I accept EK’s evidence on this topic. Despite the effluxion of time, I am satisfied that EK would have recalled the accused’s repeated absences for a period of 45 minutes in the family home after SR had gone to bed on the occasions the accused had dropped SR home and come into the house for a coffee. Her evidence on this topic was not undermined by her appropriate concession in re-examination that she did not know for sure if the accused ever went into SR’s bedroom. Acknowledging the possibility of the accused going into SR’s bedroom does not admit of, and is not equivalent to, an acknowledgment that this could have involved an absence of 45 minutes on a regular basis. EK’s evidence on the possibility of the latter was clear and unshaken – she said quite simply that that did not happen.

I am unable to accept or act upon SR’s account of the offending that she said took place in her bedroom. It cannot be reconciled with EK’s evidence, which I accept as truthful and reliable.
I accept EK’s evidence that SR told her she had sex education at school. However, it is not clear when this discussion took place, and it is possible that SR did not have any sexual education at the time she said the sexual activity with the accused commenced. I also accept EK’s evidence that she had discussed menstruation with SR before she started to menstruate. I found SR’s account on these two matters unconvincing.
Accused’s record of interview
I formed the impression that the accused was doing her best to assist police by providing truthful answers to their questions. She responded to questions in a straightforward manner and was not evasive. She was plainly paying attention to what she was being asked because on the occasions that the interviewing officer recited her earlier answers incorrectly, conflated them or suggested she had previously said something that she had not, she was able to identify this and correct it.
When there was a misunderstanding between her and the police about what she meant, she explained it. For example, it is clear to me that the accused’s use of the word ‘sexual orientation’ in her record of interview was intended to mean her lack of enjoyment of sex. She subsequently realised that this was understood by police as meaning her gender preference and that is why she said, ‘I might have slipped up and said the wrong thing there’.
In her interview, the accused did not attempt to downplay the opportunities for her to offend in the manner alleged.
I found the accused’s reaction to the allegations put to her and many of her responses compelling. Her visceral reaction (which included anger, disgust, bemusement and disbelief) to the sexual acts alleged against her struck me as genuine, as did her denial of the allegations. Whilst I accept that an emotional reaction to an allegation of a crime is not necessarily a reliable indicator that a person has been wrongly accused, in this case, I formed the view that the accused was genuinely horrified by the allegations because they were not true, and it was unfathomable to her that she could be accused of such conduct. She gave a believable explanation for why she would not commit the sexual acts alleged. Not all allegations the subject of evidence were put to her, but the bulk of the offending was put to her for her comment.
The accused volunteered information or made concessions that, on one view, were against her interest. At an early stage in the interview, she identified SR as the person she expected to be behind the complaint. She volunteered that there had been a romantic encounter with SR when she was an adult. Without hesitation, she admitted that she slept in the same bed as SR when she was a child. She said she went into SR’s bedroom to say goodnight to her and give her a peck on the cheek.
Although the accused was aware that SR had made ‘obscene’ allegations against her in the past, and that she was ‘supposed to have abused her somehow’ she clearly did not know the nature of the allegations the police were going to put to her. At one point she said, ‘just wondering what all this is about’ and wrongly speculated that the allegations related to her physical touching of SR during ballet class.
I have disregarded the answers of the accused in which she suggested reasons for SR to have made a false complaint. She had been told (wrongly and unfairly) by police that it was her ‘job to put an explanation to it other than the version of events’ the police had. Later she was asked (wrongly and unfairly) ‘Why do you think she’s saying these things?’ I infer and find that the unfair questioning led the accused to consider it was her ‘job’ to offer a reason why SR would lie. I am satisfied that she did not proffer the potential motives or reasons for a false account for any other reason. I note that no motive to lie was put to SR in cross-examination.
The accused’s interview is not evidence on oath and has not been subjected to cross-examination. By the time of the interview, she had an understanding that SR had made obscene allegations of abuse against her in the past, which she had ignored. Nothing more is known about those allegations, but I infer from the accused’s responses when speculating about the reason for the police interview, that they did not bear any resemblance to the specific allegations put to her.
Notwithstanding these matters, based on the interview alone, there was nothing about the interview that caused me to doubt the accused’s denials of having engaged in the conduct then alleged against her, let alone reject those denials beyond a reasonable doubt.
Conclusion
It is my task to determine whether the prosecution has proven the accused’s guilt beyond a reasonable doubt based on the whole of the evidence. The whole of the evidence includes the accused’s record of interview.
The findings I have made regarding the evidence of SR and my acceptance of other evidence where it conflicts with her evidence, has left me in a position where I have a reasonable doubt regarding the credibility and/or reliability of material aspects of her evidence. The compelling nature of the accused’s denials have fortified that reasonable doubt.
It follows that I cannot be satisfied beyond a reasonable doubt that the accused committed the offence with which she has been charged.
Verdict
I find the accused not guilty.