R v COOMBER - [2025] SADC 4

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v COOMBER
Criminal Trial by Judge Alone
[2025] SADC 4
Reasons for the Verdict of his Honour Auxiliary Judge Barrett
31 January 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - EVIDENCE
The accused is charged with indecently assaulting the 11 year old niece of his partner. The accused gave evidence denying the charge.
Held: The accused is Guilty of Aggravated Indecent Assault.
Evidence Act 1929 (SA) ss 2(b), 9(2)(a)(i), 9(2)(a)(ii), 9(4)(b), 13BA, 13BA(3), 13BA(5), 13BA(6)(b), 34CB, 34M, 34M(2), 34M(a)(ii), 34M(4)(a)(i), 34M(4)(b), 34M(4)(c), 34R; Summary Offences Regulations (SA) r 23(7); Summary Offences Act 1953 (SA) s 3(b)(i), referred to.
R v Jones [2018] SASCFC 80; Kendall v The King [2024] SASCA 54; R v Calides (1983) 34 SASR 355; R v Lavery (2013) 116 SASR 242; Liberato v The Queen (1985) 159 CLR 507, considered.

R v COOMBER
[2025] SADC 4
Criminal Jurisdiction

The accused is charged with one count of Aggravated Indecent Assault. He elected to be tried by Judge Alone.
It is alleged that he indecently touched the then 11-year-old niece of his partner by touching her on the vagina. The offence is alleged to have been committed on a single occasion while both the complainant and the accused were sitting on a couch in the lounge of the accused’s house. The offence is alleged to have occurred between 31 August and 14October 2019. The accused was aged 24 at the time.
Course of the Trial
The complainant, MR, gave her evidence in the first instance by way of a recorded interview conducted by Senior Constable Julianne Fowler at Port Pirie Police Station on 30May 2022. The complainant was aged 13 years and 11 months at the time. Defence counsel said that she did not challenge the admissibility of the interview pursuant to s 13BA of the Evidence Act 1929.[1] I note that at the outset of the interview, Senior Constable Fowler spoke to the complainant about her ability to give truthful answers. She elicited answers which, in my view, indicated that the complainant understood the difference between the truth and a lie.[2] She told the complainant that it was important for her to tell the truth.[3]
[1]     T 22.
[2]     MFI P1A, pp 2-3 of the interview.
[3]     MFI P1A, p 3 of the interview.
There might be a question about whether Senior Constable Fowler elicited a clear undertaking from the complainant that she would tell the truth. The complainant gave an affirmative answer to the question ‘… are you able to tell the truth today?’[4]
[4] MFI P1A, p 3, lines 99-103 of the interview.
Nevertheless, it was clearly brought to the complainant’s attention that she should tell the truth.
Regulation 23(7) of the Summary Offences Regulations sets out the ‘prescribed requirements’ for the interviewer. It requires the interviewee to appear to understand that he or she must tell the truth. The provision does not require the interviewee to undertake to do so.
Section 13BA(3) of the Evidence Act 1929 sets out the requirements for the admissibility of the record of interview. In addition to the interview meeting the requirements of the Summary Offences Act 1953, the Court must be satisfied as to the complainant’s capacity to give sworn or unsworn evidence at the time the recording was made.[5] I am satisfied that the complainant was so capable. She was clearly able to tell the difference between the truth and a lie. She was clearly told that she should tell the truth. She said she was able to do so. Her answers during the interview were coherent and responsive to questions. She was available for examination and cross-examination. Defence counsel expressly did not challenge her capacity to give unsworn evidence in the interview.
[5] Evidence Act1929 s 13BA(3)(b)(i).
In court I gave leave to examine and cross-examine the complainant on topics each counsel nominated.[6] The complainant gave sworn evidence. There was no suggestion she was not able to do so. By then she was aged 16 years and four months.
[6] Evidence Act 1929 s 13BA(5); T 34-50.
The disc of the interview was admitted as Exhibit P1 and I was given a transcript.[7]
[7] MFI P1A.
Pursuant to s 13BA(6)(b), I do not draw any inference adverse to the accused and I do not allow the admission of the evidence, in the form of the interview, to influence the weight to be given to it. I add that I was not asked, pursuant to s 9(4)(b) of the Evidence Act 1929, to warn myself of the need for caution in deciding whether to accept the evidence of the interview or the weight to be given to it.
The other witnesses called by the prosecution were the complainant’s grandmother, JR, her brother, IR, her sister, KR, and Brevet Sergeant Jake Whenan. There were agreed facts.[8]
[8] Exhibit P10.
The accused gave evidence. I treat his evidence in the same way that I do that of other witnesses, while acknowledging that he need not have given evidence.
Case for the Prosecution
The prosecution’s case is that in around September 2019, the complainant, then 11, travelled from her home in Adelaide to Port Augusta with her sister, KR, aged about 22, who had a young baby and her 13-year-old brother, IR. Her Uncle J drove them.
The group visited, or stayed with the complainant’s aunt, WS and her partner, the accused. They had two young children. During the afternoon of a day there, the complainant was on a couch in the lounge room, playing an electronic game called Minecraft. Her brother was also playing the same game on the same couch. The accused was also on the couch. The complainant’s aunt, sister and Uncle J were outside the house. The accused’s younger children were asleep.
The complainant had some difficulty with the game and asked the accused for help. She went to give the controller to the accused but he came and sat next to her. She had a blanket over her legs. On the prosecution case, the accused got partially under the blanket and rubbed her vagina on the top of her shorts. The complainant told him to stop and pushed his hand away. The accused returned to his place on the couch.
On the prosecution’s case, the complainant complained to her grandmother in May 2022.
The Case for the Accused
The case for the accused is that while there was an occasion when he was playing an electronic game in the lounge with the complainant’s brother, the game was on Xbox but not playing Minecraft. The complainant did come and sit on the couch while he and her brother were playing the game but she did not engage in it. She never asked the accused about it. He never sat next to her. There was no blanket on the couch. His children were not asleep. They were hyperactive. There were adults and children moving around the house.
On the defence case, the complainant is unreliable about a number of matters. Her evidence is inconsistent with aspects of the evidence of her brother and sister. She is unreliable about when the visit occurred and how long they stayed. She might have mistaken the accused for someone else, possibly her Uncle J. Her evidence of his identity is flawed. She did not complain for over 2½ years. The accused is autistic and tends to keep to himself. He himself had been sexually abused as a child and would be less likely, on that account, to offend in the way alleged. There was no allegation of him grooming the complainant. He has children of his own. There was no allegation of him drinking alcohol. The allegations are unlikely to be true and the complainant’s evidence is unreliable.
Evidence of the Complainant, MR
In her interview with Senior Constable Fowler on 30 May 2022, the complainant made the allegation of Aggravated Indecent Assault as set out above. She fixed the time of her visit to Port Augusta by it being in school holidays and her sister having a young baby. It is agreed that there were school holidays between 28September and 13October 2019.[9]
[9] Exhibit P10 at [6].
The complainant’s sister, KR, gave uncontradicted evidence that her baby was born on 14May 2019.[10] The complainant said she was in Year 5 at school. It is agreed that from May 2019 to the end of the year she was in Year 5 at a metropolitan area school.[11] She said it was not long after she turned 11. She turned 11 in June 2019.
[10] T 82.
[11] Exhibit P10 at [5].
The complainant said that the family group stayed with her aunt and the accused for about a week. She said that when she told the accused to stop touching her, her brother said, as if he was the one being spoken to, that he was not doing anything.
When asked to describe the accused she said, ‘It’s just Jamie’. She knew he was her aunt’s partner. She described him as having blondish hair, a bit chubby and a few freckles on his face. He had a tattoo on his arm and was in his twenties. Photographs of the accused are consistent with that description, except that he has tattoos on both arms, not one.[12] He was 24 in September 2019.
[12] Exhibits P6 and P7.
In examination-in-chief, the complainant said that she had seen the accused before on family occasions.[13] She said that the accused had touched her for about 10 seconds.[14] She said that the terms of her complaint to her grandmother were ‘Jamie touched me’.[15]
[13] T 35.
[14] T 38.
[15] T 39.
In cross-examination, the complainant said that apart from the accused, there were three other adults at the house at the time. They were her aunt WS, her Uncle J and her sister. She denied other unnamed people were present. She agreed that at times, the house was a busy one. Other family members might visit.[16]
[16] T 45.
When asked to describe Uncle J, she said that he was tall with black hair and dark skin. He was ‘chubbyish’. He was not the same as the accused. A photo of him, Exhibit P5, suggests that he is quite different in appearance from the accused. The complainant denied being mistaken about it being the accused who offended against her.[17]
[17] T 49-50.
Evidence of MR’s Grandmother, JR
JR said that she has lived in Peterborough since 1999. She is an Aboriginal Community Education Officer. In May 2022, she had the complainant and her brother living with her. She said that on an occasion in May, she found the complainant sobbing. When asked what was wrong, the complainant told her that the accused had touched her on the crotch in the lounge room. She had been playing Xbox with her brother. When she asked her brother to show her something about the game, the accused volunteered to show her. He came and sat next to her and touched her under the blanket that she had over her legs. She said she froze and did not know what to do.[18] The complainant said that she had been visiting her aunt in Port Augusta for a one-day visit.[19] She said the adults were outside smoking.
[18] T 56.
[19] T 57.
JR said that she took the complainant to the Police Station that same day. It is an agreed fact that the complainant made a report to the Peterborough Police Station with her grandmother on 24May 2022. [20]
[20] Exhibit P10 at [11].
JR said that she knew the accused’s mother who lived nearby. She saw her at the school after the complainant had told her what had happened. She approached the accused’s mother and told her about the complaint.
That evidence was led only to explain a reference the accused later made to the police about having heard something of the allegation from his mother. The accused was interviewed and arrested on 19August 2022. The evidence about the grandmother’s conversation with the accused’s mother was led without objection by defence counsel. I make no use of that evidence other than that just described.
In cross-examination, JR reasserted that the complainant told her that the family had made a day long visit to Port Augusta at the time of the offending.[21] She agreed that there had been later discussions between her, the complainant and the complainant’s brother, about the time of the visit.[22]
[21] T 65.
[22] T 66.
Evidence of the Complainant’s Brother, IR
IR was 18 when he gave evidence. He said that he thought he had visited his aunt in Port Augusta and had seen the accused about eight or nine times. They usually stayed overnight. The complainant went each time. He remembered only one occasion when they were driven to Port Augusta by their Uncle J.
IR thought that occasion was in October or November. He remembers Christmas decorations being put up at home. He thought his older sister’s baby was very young.[23] He remembered playing Minecraft and other electronic games at another relative’s house in Port Augusta but he did not remember ever playing the games at the accused’s house. He remembered some activities with the accused himself but not the electronic games.
[23] T 71.
In cross-examination, IR said that when his family visited Port Augusta, they would normally stay overnight. He only remembers one trip to Port Augusta in 2019. That was the last trip they made.
Evidence of the Complainant’s Sister, KR
KR said that she had visited her aunt, WS, about 20 times. She visited her only once with the complainant. That visit occurred when her baby was about four months old. She was fairly sure it was only a day trip.[24] The purpose of her visit was partly to visit her partner, Brenton Gibson, who was living at his mother’s house in Port Augusta under home detention (Brevet Sergeant Jake Whenan gave evidence that Brenton Gibson was on home detention between 27September 2019 and 8January 2020).
[24] T 89.
KR said that when she left WS’s home to visit Brenton Gibson, the complainant and the complainant’s brother, IR, were playing PlayStation or Xbox in the lounge.[25]
[25] T 91.
In cross-examination, KR reasserted that the trip with the complainant to Port Augusta was in September 2019 when her son was four months old.[26]
[26] T 94.
Evidence of Brevet Sergeant Jake Whenan
Brevet Sergeant Whenan said that he had taken a statement from the complainant’s aunt, WS but WS was no longer cooperative with the prosecution.
He produced the photo of Uncle J which he said was taken on 4 November 2019. [27]
[27] Exhibit P5; T 101.
He produced a photo of the accused’s tattooed upper arm taken in November 2015 and a later photo of the accused’s person, which was taken in February 2021.[28]
[28] Exhibits P6 and P7; T 104.
Brevet Sergeant Whenan interviewed the accused on 19 August 2022. He produced the disc of the interview[29] and a transcript.[30]
[29] Exhibit P8.
[30] MFI P8A.
During the interview, the accused denied the complainant’s allegations. When asked what he was doing in September 2019, he said that he thought he would have been in gaol at the time for domestic violence on his partner.
I pause to say that this evidence was led without objection. Detective Brevet Sergeant Whenan said that records showed that the accused was not in custody in September 2019 but went into custody in April 2020. He had not been in custody before that. That evidence was not challenged.
The accused gave no evidence on the topic. His counsel did not suggest any question of an alibi arose. Strictly, the evidence may be regarded as discreditable conduct. If that is so, I must give myself the directions contemplated by s 34R of the Evidence Act 1929.
In his address, counsel for the prosecution submitted that the evidence has no permissible use and I should direct myself to that effect.[31] The accused offered the information in the mistaken belief he was in custody in September 2019. I do not rely on that evidence for any other purpose at all. In particular, I draw no inference adverse to the accused. I warn myself against impermissible reasoning such as ‘bad person’ reasoning. It might have been preferable if the passage in the interview had been excised.
[31] T 138.
I turn to relevant aspects of the interview. I refer to the transcript MFI P8A.
The accused referred to his mother having told him something of the complainant’s allegations.[32]
[32] MFI P8A pp 3, 18–19.
He said he remembered the complainant and her brother visiting his house but he said many other people were about the house at the same time.[33] This included his own children.
[33] MFI P8A pp 7–14.
The accused said that at one stage, the complainant did sit on the couch in the lounge watching him play Xbox. He said that he let the complainant’s brother play on the Xbox. He said nothing about the complainant playing on the console. He said that having sat on the couch watching him play, she was called away by his eldest daughter and she left.[34]
[34] MFI P8A pp 14-15.
The accused denied ever sitting with the complainant. He said there was no blanket on the couch.[35] He was never sitting near her.[36] He said he thought the complainant was aged around 13 at the time.[37]
[35] MFI P8A pp 17–18.
[36] MFI P8A p 22.
[37] MFI P8A pp 19–20.
The accused said he was autistic and did not socialise much.[38] He does not like people sitting next to him.[39]
[38] MFI P8A p 20.
[39] MFI P8A p 22.
The Accused’s Evidence
The accused said that he has been on a disability pension for high functioning autism since he was 17. He feels uncomfortable around people and noise always irritates him.[40] He denied the complainant’s allegations. He did not possess the game Minecraft. There was no blanket.[41]
[40] T 111.
[41] T 112.
There were people in and out of the house. He was mainly playing Xbox with the complainant’s brother. His own children were hyperactive and frequently coming in and out of the lounge room.
In cross-examination, the accused acknowledged that while he generally kept to himself, he went scooter riding with the complainant’s 13-year-old brother on occasion.
The accused gave the birth years of his children as 2016, 2017 and early 2019. He said the children were not asleep during the day the complainant visited and sat on the couch. That is not withstanding their usual bedtimes were around 11:00pm to midnight.[42]
[42] T 125.
He said that there was only one day on which he played on Xbox but not Minecraft, with the complainant’s brother. The complainant did not take part.
The accused denied the offending.
Addresses
Mr McCabe for the Prosecution
Mr McCabe submitted that the complainant was a highly credible and reliable witness. Her complaint to her grandmother demonstrates consistency. Her evidence is supported to a degree by the accused. On his account, there was a (solitary) occasion when he was playing an electronic game with her brother in the lounge room and the complainant came and sat down on the couch. Other evidence fixes the occasion as being in September 2019. The inconsistences between prosecution witnesses are not significant.
The complainant’s account of the circumstances of the offending was credible. In her police interview, she was almost challenged about how the accused could have touched her as she says. She demonstrated that she had her legs pulled up. The accused put his hand under them to reach her vagina. She corrected the interviewer when she said that the accused moved his hand away. The complainant said she pushed his hand away. [43] There is the compelling detail that when the complainant told the accused to stop what he was doing, her brother, apparently thinking he was being spoken to, said he was not doing anything.
[43] MFI P1A p 9, line 916.
Mr McCabe submitted that there was consistency in the complainant making her initial complaint to her grandmother. Her grandmother was the one looking after her in 2022 and a relationship of trust had developed. If there were some slight inconsistencies in the grandmother’s account, that does not detract from the force of the complaint being made.

While the complainant’s brother does not remember the occasion, he does not even remember playing the console game, whereas the accused acknowledges that he did. The complainant’s sister recalls seeing the complainant and her brother playing.
Mr McCabe submitted that the accused had the opportunity to do what is alleged. The floorplan of the house indicates that with the other adults outside the back of the house, there was sufficient seclusion for a brief covert act.
Other reliable evidence places the occasion of the visit in September 2019. The school holidays and the age of the complainant’s sister’s baby are consistent. The accused and his partner were tenants of the relevant house and the accused was not in prison. The complainant’s sister’s partner was on home detention at the time and she said that she went on the visit partly to visit him. The complainant’s brother’s recollection of Christmas decorations is not a secure basis for rejecting September as the correct time.
While the complainant’s sister thinks the visit was a day trip, both the complainant and her brother say it was for several days. In any event, the length of the stay does not affect the plausibility of the offending.
Mr McCabe submitted that despite the defence suggestion of mistaken identity of the perpetrator, this is not a case turning on identity. It is a case of recognition. The complainant knew the accused. The accused himself acknowledges that the complainant sat on the couch while he and her brother were playing an electronic game.
Mr McCabe submitted that if the complainant’s evidence is accepted beyond reasonable doubt, the charge is proved. The touching of the complainant’s vagina, when she was aged 11, amounts to an indecent assault on someone under 14.
Mr McCabe submitted that the accused was an unsatisfactory witness in a couple of ways. In his cross-examination, he first asserted that the complainant had only ever visited his house once, but when reminded that he had told the police that she had visited a few times, he said he was mistaken. Initially he said that she had never stayed overnight[44] but he later acknowledged that she had.[45]
[44] T 122.
[45] T 125.
Mr McCabe submitted that the defence suggestion that the complainant may have mistaken the accused for her Uncle J as the perpetrator, should be dismissed. The photographs of the two men demonstrate they are not at all alike. The accused himself acknowledged that Uncle J did not play video games at his place when the complainant was there.[46]
[46] T 113.
Mr McCabe submitted that the complainant’s evidence was clear, credible and reliable.
Ms Burgess for the Accused
Ms Burgess for the accused submitted that 11 topics should leave me with a reasonable doubt about the accused’s guilt.
The first is that the allegation is inherently unlikely. There is no evidence of grooming. The accused’s house was a busy one. Adults and children were nearby. To behave in the way alleged would jeopardise the accused’s relationship with his own children. There is no evidence of the accused making sexual comments. It is unlikely that there would be a blanket on the couch in September. It would be unlikely that the offending would not be detected if it went on for 10 seconds as the complainant alleged.
The second submission is that this is a case of ‘oath on oath’. The complainant says the offending occurred. The accused says it did not. No one saw it happen.
The third submission is that the accused’s interview with police was ‘nothing short of impressive’. He was frank. He denied the offending. He looked genuinely shocked when the allegation was put to him. He said he was not the kind of person to offend against a child. That assertion was not challenged, at least so far as his past is concerned. The accused could have denied that the complainant ever sat on the couch, but he did not.
The fourth submission related to the accused’s evidence in court. While there was an inconsistency in his evidence about the number of times that he had seen the complainant, that is of small magnitude. That topic was at the very beginning of cross-examination and the accused appeared nervous. Given the delay in the matter coming to the accused’s attention, he is at a forensic disadvantage. I should not draw an inference against the accused because he had difficulty remembering his children’s birth dates.
The fifth submission is that honest children can be inaccurate and mistaken. I should scrutinise the complainant’s evidence carefully. Her complaint was delayed. It was out of the blue. There was no explanation for the delay. There was discussion between the complainant’s grandmother, her brother and her about the likely date of the offending before any statement was given to the police. That may have caused reconstruction on the complainant’s part. There was evidence that there were similar couches to the accused’s in the grandmother’s house. The layout of the accused’s house was similar to that of another relative, sometimes visited by the complainant. There are gaming consoles in other relatives’ houses. The complainant referred to seeing a single tattoo on the accused’s arm, but he has one on each arm. The complainant had difficulty in identifying which trip was the subject of the allegation when she was making her complaint. As far as the complaint evidence is concerned, her grandmother gives a more detailed account of what the complainant told her than the complainant did in her evidence. The grandmother said that the complainant had difficulty identifying which trip was the subject of the offending.
The complainant’s brother said that the visit occurred at a time when Christmas decorations were up.
The sixth topic relates to the accused’s forensic disadvantage. Given the number of visits that the complainant made to Port Augusta, it is difficult for the accused to know which one is the subject of the charge. There are no phone records to help. There is no road camera evidence. There are no receipts. There are inconsistences among the prosecution witnesses about how long they spent on the visit. The alleged driver of the trip, Uncle J, was not called.
The seventh topic relates to the complainant’s evidence of tattoos. The accused has tattoos on both arms, but the complainant only spoke of one. Her Uncle J has a tattoo on only one arm. I should give myself a full identification warning.
The eighth topic relates to the evidence of the blanket. The complainant says there was one while the accused says there was not. No one else was asked about that. That topic should have been explored in detail by the prosecution.
The ninth topic relates to the complaint evidence. The submission focused on s 34M(4)(c) which provides that a direction must be given that ‘there may be varied reasons why the alleged victim of a sexual assault has made a complaint of the offence at a particular time or to a particular person’.
In this case, there is no explanation for the delay in making a complaint. There is no explanation why she did not complain to her sister immediately after the offending. She was not living in Port Augusta and so she had the opportunity to complain to people close to her at her own home. While I may not use delay alone to adversely affect the complainant’s credibility, I may have regard to the explanations or lack of explanations for the delay.
While the alleged complaint might sufficiently identify the charged offending, it lacks specificity. The grandmother’s account of the complaint is more detailed than that given by the complainant herself. The grandmother said the complaint referred to the visit being a day trip. The complainant says she thought she was 11 at the time. There is thus an inconsistency of account rather than consistency. There is the evidence from the grandmother that there was later discussion involving other people about the date of the likely visit. That might have contaminated the complainant’s later account to the police. These later discussions are a fatal problem for the credibility of the complainant. There is a problem of possible reconstruction.
The tenth submission relates to submissions about individual witnesses.
It is not entirely clear what I am being asked to make of the evidence of the complainant’s brother. Ms Burgess submitted that there was no reason to reject his evidence,[47] but where his evidence differs from anyone else’s that raises a difficulty for the prosecution. Ms Burgess drew attention to IR saying that on the trip he made to Port Augusta with the complainant, there were Christmas decorations up at home. I note that he is alone in saying that and there is considerable evidence suggesting that it was in September.
[47] T 178.
Ms Burgess drew attention to IR, saying that the visit was for several days. That is inconsistent with his sister, KR’s evidence. I note that she is the only one to say it was a day trip. The complainant says it was for several days.
Ms Burgess drew attention to IR, saying that he did not remember ever playing console games at the accused’s place. I note that that is inconsistent with the accused himself.
It is true that IR’s lack of memory of playing games at the accused’s place means he has no memory of having made the remark that he was ‘not doing anything’ when the complainant says she told the accused to stop what he was doing. However, that might not be surprising if his attention was not drawn to the occasion for over 2½ years.
I agree with Ms Burgess’ submission that the complainant’s allegation receives no support from her brother, but I do not agree that his evidence damages her credit.
In relation to the complainant’s sister, KR, Ms Burgess drew attention to two aspects of her evidence. She says that the visit was a day trip, whereas both the complainant and her brother say it was for several days. On balance, I think that KR is mistaken about that. I take judicial notice of the fact that Port Augusta is about 300 km from Adelaide. If the party of four was visiting relatives in Port Augusta with a four-month-old baby, I think it likely that they would avoid undertaking a one day return trip.
Ms Burgess submitted that KR was likely to be mistaken when she said that her relationship with Brenton Gibson began in November 2019 and that Gibson was on home detention just after the birth of her son in May 2019. I agree with that submission. That evidence is, as Ms Burgess observed, inconsistent with the police evidence about when Gibson was on home detention.
Insofar as KR says that she remembers seeing both the accused and her brother playing on console games in the lounge, she may be said to support the complainant’s evidence in that particular respect, but it is a relatively peripheral matter. In light of the respects in which I think KR is mistaken, I give her evidence on that topic limited weight. As Ms Burgess observed, KR did not claim to see the accused engaged in the game.
While Ms Burgess did not criticise the police officer’s evidence, she suggested it did not advance the prosecution case much at all. However, that submission overlooks several pieces of circumstantial evidence which were led through the officer. In the accused’s record of interview, he acknowledges that there was an occasion when he was playing a console game with IR and the complainant sat on the couch. The officer was able to correct the accused’s mistaken belief that he was in prison in September 2019. I repeat that I use that evidence only for the limited purpose of denying a possible alibi. I do not find the accused lied on that point. Given the lapse of time, he might well be simply mistaken. In addition, he said that his mother also thought he might have been in prison, so the mistake may have been reinforced in his mind.
The officer produced evidence of the accused being a tenant of the house in September 2019. He also provided the details of Gibson’s home detention which supported KR’s recollection of visiting Gibson in September, albeit that the same evidence cast doubt on other aspects of her evidence.
Ms Burgess’ final topic is really a collection of observations which I should bear in mind. I must not and I do not, prejudge the accused by reason of the charge he faces. I draw no inference against him by reason of his being in prison.
Ms Burgess submitted that the accused is less likely to have offended against the complainant because he himself had been sexually abused. I do not accept that submission. There is no evidence before me that people who have been the victims of sexual abuse are for that reason less likely to offend sexually. I make it clear however that although it is the Court’s experience that sometimes people who have been sexually abused do themselves offend sexually, there is no evidence that they are more likely to do so.
Ms Burgess submitted I should not draw any inference against the accused because of his autism and depression. I do not do so.
Ms Burgess submitted that the allegation is inherently unlikely. Other adults and children were in the house. The accused was not intoxicated. There was no grooming or lead up to the offending. There was no motive for him to offend.
I bear in mind the presumption of the accused’s innocence.
I bear in mind that if, in the face of two competing bodies of evidence, I am unable to determine where the truth lies, the prosecution will not have proved the case beyond reasonable doubt. I bear in mind that that is the burden of proof the prosecution must discharge.
Consideration
I give myself a number of directions.
Forensic Disadvantage – s 34CB of the Evidence Act
I bear in mind that the delay in reporting this matter has caused the accused a forensic disadvantage, although I think in only one respect. The offending was said to have occurred in September 2019. No complaint was made until May 2022, some 2½ years later. The accused’s mother might have told the accused something of the allegations shortly after May 2022 but he was not interviewed by police and given the full details until August 2022.
In the interview, the accused mistakenly said that he thought that he might have been in custody in September 2019. He said his mother thought the same. The accused was not in custody before April 2020.
If a complaint had been made earlier, the accused would not, or depending on when the complaint was made, would be unlikely to have made that error. For that reason, I draw no inference adverse to the accused by reason of his being in prison, or by reason of having made that error.
I do not regard the delay as otherwise making it unduly difficult for the accused to identify the visit that the complainant made to his house. He remembers playing a console game with her brother and he remembers her sitting on the couch. He effectively identifies the occasion and is able to address it.
Complaint – s 34M of the Evidence Act
I find that the complainant reported to her grandmother in May 2022 that the accused indecently assaulted her. Her own account of her complaint relates sufficiently to the charge to identify it. Her grandmother’s account provides more detail.
Pursuant to s 34M(2), I do not reason that the delay in making the complaint of itself adversely affects the complainant’s credit. However, I deliberate on whether the explanation for the delay affects her credit (R v Jones [2018] SASCFC 80).
Ms Burgess submitted that there was no reason why the complainant could not have told other family members about what had happened when they got back to Adelaide but Ms Burgess did not explore with the complainant why she had not done so. In May 2022, the complainant was not living with her family in Adelaide. She was living with her grandmother in Peterborough. She told her grandmother.
The complainant was not asked any questions by anyone about why she did not report the matter earlier or why she chose to tell her grandmother. She was therefore not given an opportunity to explain the delay. For that reason there is, in my view, no adverse comment which can be made about the delay.
The evidence of complaint indicates how the allegation first came to light (s 34M(4)(a)(i)).
In my view, it is evidence of a degree of consistency of conduct on her part (s 34M(a)(ii)). The complainant reported to someone in whom she might be said to have developed trust.
The complaint evidence is not admitted as the truth of what is alleged (s 34M(4)(b)).
While there may be varied reasons why the complainant reported the matter in May 2022 to her grandmother (s 34M(4)(c), Kendall v The King)[48] no reason was elicited in this case. It may be inferred however that she had developed some trust in her grandmother while living with her in Peterborough.
[48] [2024] SASCA 54.
Calides Direction
If, in the face of two opposing bodies of evidence, I am unable to decide where the truth lies, the prosecution will not have discharged its onus of proving the accused’s guilt beyond reasonable doubt.[49]
[49] R v Calides (1983) 34 SASR 355; R v Lavery (2013) 116 SASR 242.
Consideration
I found the complainant a compelling witness. She gave her statement to the police and her evidence in court in a clear, straightforward manner without any suggestion of exaggeration or hesitation. She was in no apparent doubt about who touched her. When asked to describe the perpetrator she replied ‘It’s just Jamie’. She knew him. It was a question of recognition, not identity. I do not think that her not mentioning that the accused had tattoos on both arms materially detracts from her evidence. I do not think her Uncle J having a tattoo on only one arm raises any doubt about her evidence. The photos of the two men show them to be quite unalike. I do not think a full identification warning is called for.
I found compelling the detail about her brother thinking he was being spoken to when the complainant said that she told the accused to stop doing what he was doing.
In my view, there is a consistency of conduct and account in the complainant’s report to her grandmother.
There is independent evidence indicating that the incident occurred in September 2019, at the time when the accused was occupying his house in Port Augusta. He himself acknowledges there was an occasion when some of the surrounding circumstances occurred. There was an occasion he remembers, when as the complainant says, he and her brother were on a couch in the living room playing an electronic game. The complainant sat on that couch at one stage.
While I make some allowance for the accused’s nervousness in the witness box and possibly during the police interview, I found his evidence unsatisfactory. Until he was prompted by the prosecutor to reconsider his answers, the accused attempted to minimise his contact with the complainant. Initially he said she had only come to his house once but he was reminded that he had told the police that she had come to his house a few times. The accused denied that she had stayed overnight at his house,[50] but later admitted that she had.[51] The accused was at pains to exaggerate the pervasive presence of his young children in the lounge. I accept the complainant’s evidence that the children were asleep.
[50] T 123.
[51] T 125.
I reject the accused’s evidence denying his guilt but I return to the prosecution case to see if the prosecution has discharged its onus of proving the accused’s guilt beyond reasonable doubt.[52] I find that the prosecution has proved its case beyond reasonable doubt. I am satisfied that the complainant has given clear and compelling evidence about the accused touching her on the vagina when she was 11.
[52] Liberato v The Queen (1985) 159 CLR 507.
Verdict
Aggravated Indecent Assault – Guilty.