R v CW - [2023] SADC 5

District Court of South Australia
(Criminal)
R v CW
Criminal Trial by Judge Alone
[2023] SADC 5
Reasons for the Verdicts of her Honour Judge Fuller
31 January 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
Accused charged with six counts of unlawful sexual intercourse with a person under the age of 17 - offending alleged to have occurred on three separate occasions in November 2020 - complainant 16 years of age - accused and complainant lived in share house with 3 others including owner of house - accused and complainant observed by housemates to spend a lot of time together, including going out to dinners and the accused driving complainant to and from school - evidence of initial complaint and elaboration of complaint to one house mate - owner of house gave evidence that the accused confessed to having had sexual intercourse with complainant after alleged offending came to light.
Held: Evidence of alleged confession rejected - complainant's credibility seriously undermined by proved prior inconsistent statements on material matters and implausibility of explanations for those inconsistencies - complainant unimpressive witness - complainant's evidence rejected where it conflicted with evidence of other prosecution witnesses - unsatisfactory police investigation - complainant's mobile telephone not examined - locations of alleged sexual activity not forensically examined - no evidence corroborating complainant's account of communications of a sexual nature by accused over social media or sexual acts occurring in the share house - evidence of initial complaint and elaboration demonstrated a degree of consistency of conduct but insufficient to overcome cumulative effect of adverse credibility findings.
Verdicts: not guilty on all charges.
Criminal Law Consolidation Act 1935 (SA) ss 49(3); Disability inclusion Act (SA) ss 18A, 18U; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 34L, 34M, 34P(2)(a), referred to.
R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; R v Markuleski (2001) 52 NSWLR 82; Burns v R (1975) 132 CLR 258, considered.

R v CW
[2023] SADC 5
The charges

The accused has been charged on an Information dated 18 November 2022 with the following offences:
Count 1:
Offence Details:
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars
[The accused] on or about the 17th day of November 2020 at Semaphore, had sexual intercourse with [WMN], a person under the age of 17 years, by performing an act of fellatio upon him.
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a ‘disqualification offence’ within the meaning of sections 18A and 18U of the Disability Inclusion Act 2018.
Count 2:
Offence Details:
Unlawful Sexual Intercourse. (Ibid).
Particulars
[The accused] on or about the 17th day of November 2020 at Semaphore, had sexual intercourse with [WMN], a person under the age of 17 years, by causing [WMN] to insert [WMN]’s penis into his anus.
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a ‘disqualification offence’ within the meaning of sections 18A and 18U of the Disability Inclusion Act2018.
Count 3:
Offence Details:
Unlawful Sexual Intercourse. (Ibid).
Particulars
[The accused] on or about the 17th day of November 2020 at Semaphore, had sexual intercourse with [WMN], a person under the age of 17 years, by performing an act of fellatio upon him.
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a ‘disqualification offence’ within the meaning of sections 18A and 18U of the Disability Inclusion Act 2018.
Count 4:
Offence Details:
Unlawful Sexual Intercourse. (Ibid).
Particulars
[The accused] on or about the 24th day of November 2020 at Rosewater, had sexual intercourse with [WMN], a person under the age of 17 years, by causing [WMN] to insert [WMN]’s penis into his anus.
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a ‘disqualification offence’ within the meaning of sections 18A and 18U of the Disability Inclusion Act 2018.
Count 5:
Offence Details:
Unlawful Sexual Intercourse. (Ibid).
Particulars
[The accused] on or about the 24th day of November 2020 at Rosewater, had sexual intercourse with [WMN], a person under the age of 17 years, by inserting his penis into [WMN]’s anus.
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a ‘disqualification offence’ within the meaning of sections 18A and 18U of the Disability Inclusion Act 2018.
Count 6:
Offence Details:
Unlawful Sexual Intercourse. (Ibid).
Particulars
[The accused] on or about the 24th of November 2020 at Semaphore, had sexual intercourse with [WMN], a person under the age of 17 years, by causing [WMN] to insert [WMN]’s penis into his anus.
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a ‘disqualification offence’ within the meaning of sections 18A and 18U of the Disability Inclusion Act 2018.
The plea
The accused pleaded not guilty and at his election I heard the trial without a jury. I now publish my reasons for the verdicts I am about to deliver.
Elements of the offence of unlawful sexual intercourse
The elements of the offence of unlawful sexual intercourse with a person under the age of 17 years are:
1. That the accused had sexual intercourse with the complainant.
2. At the time the accused had sexual intercourse with the complainant, the complainant was under the age of 17 years.
Sexual intercourse is defined to include fellatio and the penetration of a person's anus by any part of the body of another person or by any object.
Issues in dispute
The only issue in dispute in the trial was whether the sexual intercourse the subject of each charge in fact occurred.
General directions
The accused elected for trial by Judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v G,[1] 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.
[1] R v G [2015] SASC 186.
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 did not give or call evidence. That was his right. I have not drawn any inference adverse to the accused for exercising his right to silence.
The accused is charged with 6 counts of unlawful sexual intercourse. I must consider each count separately on its merits, and only by reference to the evidence relating to that count.
If I am satisfied beyond reasonable doubt that the accused is guilty of one count, I must not reason that he is therefore the sort of person who would have committed or is likely to have committed any or all of the other offences alleged.
Conversely, if I were to find that one or more of the counts were not proved beyond reasonable doubt as a result of adverse credibility findings with respect to the complainant, I can take that into account in my assessment of the complainant’s evidence generally.[2]
[2] R v Markuleski (2001) 52 NSWLR 82.
Overview of the prosecution case
The prosecution case is that between 17 November 2020 and 30 November 2020 the accused engaged in sexual intercourse with the complainant, WMN on three separate occasions during which the six individual charged acts occurred.[3] At the relevant time, WMN was 16 years of age, and the accused was 33 years of age.
[3] T 6.
In late October 2020, WMN moved into a share house in Rosewater, having relocated from the Riverland. When WMN moved in, the other occupants were SC (owner of the house), ZS (also known as QS), JS, AB and the accused. Each of the occupants had their own bedroom and the accused’s bedroom was directly opposite that of WMN.
The accused paid particular attention to WMN from a time shortly after his arrival and the two of them began to spend a lot of time together. As time went on, the accused and WMN would go out for dinners, shopping and attending ‘escape rooms’. The accused generally paid for these activities and also bought WMN clothing and gifts. He also assisted WMN with his learner’s permit by supervising his driving and filling in his logbook and would drive him to and from school. The accused would often try to hold his hand or kiss him in public, which made WMN feel uncomfortable.
During the course of these activities, the accused proposed to WMN that they commence an exclusive romantic relationship. Around 17 November 2020, WMN and the accused went out to dinner and then drove to Semaphore beach. It was around 11.30pm and whilst they were both on the beach, the accused told WMN that he was always flirting with him but never let him do anything. The accused suggested that WMN let him engage in sexual acts with him and WMN agreed. Whilst on the beach, the accused performed fellatio on WMN: Count 1. Shortly afterwards, they returned to the accused’s vehicle at which time WMN said to the accused, ‘just remember I am 16’ and the accused replied, ‘I will worry about that later’. The accused and WMN then performed fellatio on each other: Count 2, after which WMN inserted his penis into the accused’s anus: Count 3.
Late in the evening, about a week later, the accused and WMN were both home in their respective bedrooms when the accused sent WMN a picture via Snapchat of himself lying on his bed naked with his penis exposed. WMN sent the accused a picture of his open door in response. The accused then went into WMN’s bedroom and shut the door. He then suggested to WMN that they do the same thing they did in the car. WMN then inserted his penis into the accused’s anus on a couch: Count 4. The accused ejaculated onto the couch.
A week later, again late in the evening, the accused invited WMN to go into his room to play a video game called Mario Kart. Whilst they were both in the accused’s bedroom playing Mario Kart, the accused told WMN he wanted to have sex with him. WMN told the accused he was not ready but could try and the accused inserted his penis into WMN’s anus. The accused was rough and as a result WMN asked him to stop: Count 5. The accused then said that the bed was making too much noise and suggested that they move to the bedroom floor. There WMN put his penis into the accused’s anus: Count 6. The accused then ejaculated.
Immediately after the sexual acts the subject of counts 5 and 6, WMN told the accused that he did not want to have sex with him anymore; he wanted to have sex with other people. The accused suggested that they have an open relationship and WMN said he did not want to be in any kind of relationship.
After a few days, on or around 6 December 2020, WMN spoke with his house mate, ZS and told him that he and the accused had had sexual intercourse on more than one occasion. ZS encouraged WMN to tell SC and he did so via text message a few days later when he was away from the house. SC asked the accused to leave the share house, which he did around 8 December 2020.

The evidence
The prosecution called the following witnesses:
1.   The complainant, WMN.
2.   ZS.
3.   SC.
4.   Brevet Sergeant Sarah Matheson.
The following exhibits were tendered during the prosecution case:
Exhibit P1: Layout of [the Rosewater premises].
Exhibit P2: Three pages of screenshots of call logs of [WMN’s] phone.
Exhibit D3: Custom Occurrence Report page 1, printed 12 January 2023.
Exhibit P4: Statement of Agreed Facts.
The following facts were agreed in Exhibit P4:
Dates of Birth
1.   The complainant, [WMN], was born on the 5^th of July 2004.
2.   The accused, [CW], was born on the 26^th of April 1987.
Knowledge of Age
3.   It is agreed that the accused, [CW], was aware that the complainant, [WMN], was 16 years old at the time of the alleged offending.
Residence at [redacted], Rosewater.
4.   [WMN] moved into [the Rosewater premises] on about the 25^th of October 2020.
5.   [CW] also resided at [the Rosewater premises], as of the 25^th of October 2020, having moved into the address in early September 2020. He moved out of the address on about the 8^th of December 2020.
Schooling of [WMN]
6.   For the entirety of November 2020, [WMN] attended the [redacted] School, enrolled in year 11.
I turn now to examine the evidence in more detail.
The complainant, WMN
At the time he gave evidence, WMN was 18 years of age. He grew up in the Riverland and moved to Adelaide in late October when he was 16 years of age.[4] He had joined a group on Facebook called Queer Housing Adelaide. This was a group for queer people looking for housing in Adelaide. It was through this group that he met SC, the owner of the house at Rosewater into which he subsequently moved.[5]
[4] T 14.
[5] T 15.
When WMN moved to Adelaide he enrolled in year 11 at [redacted] School. The other people who were living at the Rosewater address were SC, ZS (also known as QS), JS and the accused. Another person stayed there from time to time, but he only knew him as A.[6]
[6] T 16.
A diagram drawn by WMN of the layout of the Rosewater premises was tendered: Exhibit P1. The accused’s bedroom was directly opposite that occupied by WMN.[7] At the back of the house there was a shed area which was used as a lounge room.[8] WMN was asked how he got along with his housemates when he first moved in, and he said:
I got along with everybody quite well. As I was new, I wasn’t super confident with talking to everybody. I was quiet, I was pretty self-reserved. I particularly got along well with [ZS] and I’d already spoken to [SC] through Messenger, so yeah, I spoke to him quite frequently too, when I first moved in.[9]
[7] T 18.
[8] T 19.
[9] T 19, 33-38.
WMN’s first interaction with the accused occurred a few days after he moved in. He said they were all invited to watch a science fiction movie together in the shed lounge room area. He got to know the others a bit better then and introduced himself to them. ZS, SC and the accused were present.[10] Someone asked how old he was, and SC said he was 19. WMN corrected him and said he was 16 years of age and he said he was enrolled in school. WMN said SC was drunk at the time and he had not told him he was 16. WMN said that the accused was ‘sort of focussing his attention’ towards him and giving him ‘flirtatious looks’ and this made him feel a bit uncomfortable and strange. [11]
[10] T 20.
[11] T 21.
WMN said that he became friends with everyone in the house on Facebook and a Messenger group chat was the way that they communicated. The accused invited him to dinner, but he was not sure if that was an invite to him only or to the entire group. The only people who went to dinner were him and the accused. They went to Nordburger in the city.[12]
[12] T 22.
The accused drove the two of them there in his big blue car. Whilst at the restaurant, WMN told the accused he was going to [redacted] School. The accused told him about the places he had worked, putting particular emphasis upon the fact that he had worked on Hamilton Island. He told WMN he wanted to take him there some time and WMN said that sounded ‘cool’. The accused also said that he was working in childcare at four or five different centres around Adelaide.[13]
[13] T 23.
WMN said the accused insisted on paying for his dinner which made him feel that it was more like a date. The accused told him he was beautiful. WMN was then asked what he did after dinner and he replied, ‘Sorry just give me a minute’ before going on to explain that they went back home and WMN locked his door from the inside. The accused then had a conversation with him on Messenger about the potential of being in a relationship with him.[14] WMN explained his response:
… I shut down the idea firstly because I was having sex with people that were my age and I don’t like – I didn’t like the idea of exclusivity. I also was thinking about the social aspects of things. I fear judgment from other people and I was thinking about what other people would think of me and also him obviously seeing me together with him in public and things like that. That was an uncomfortable idea for me.[15]
[14] T 24-25.
[15] T 25, 14-22. The evidence regarding WMN having sex with people his age was given in breach of s 34L of the Evidence Act1929. It was not intended that this evidence be elicited from WMN. Counsel agreed that the evidence was not admissible, and I should disregard it. I have done so. T 25-27.
After the first dinner, WMN and the accused would often go into the city for dinner, every two or three days and sometimes every day. After dinner they would often go to an Escape Room.[16] The accused insisted on paying for these activities.[17] WMN said that he quite often offered to pay but as a student he did not have lots of money. He was receiving income from Centrelink, approximately $500 per fortnight. After paying rent, he had around $100 left for the fortnight.[18]
[16] WMN explained that an Escape Room is a room in which the person is locked and given clues as to how to escape from it before the timer runs out. T 28-29.
[17] T 28-30.
[18] T 30-31.
In addition to dinners, WMN and the accused would ride around on Beam scooters or go for drives to places like St Kilda Playground, Mount Lofty, Semaphore beach and Port Adelaide, quite often late at night. The outings would last until 1.00am and he would often be late to school or miss school altogether. If he was late and missed the bus, the accused would quite often offer to drive him to school. After a while, the accused just started driving him to school most mornings.[19]
[19] T 30-31.

The accused also bought WMN a bottle of cologne and suggested he would buy him a new phone for Christmas. He also offered to take him on lots of holidays. He assisted WMN with his learner’s permit by helping him get his hours up.[20]
[20] T 31.
When WMN and the accused went out to dinner, the accused was always very flirtatious and giggled. He hugged WMN, held his hand, asked to kiss him and would always act like a gentleman.[21] If this occurred in front of other people, WMN would feel quite uncomfortable because he was afraid that people would judge them for the age gap and was worried what they would think of him. Sometimes WMN would pull away or say no if the accused wanted to hold his hand. Sometimes he would say yes. He said that he felt more comfortable in private with this behaviour.[22]
[21] T 31.
[22] T 32.
The accused continued to bring up the idea of a relationship with WMN. This generally occurred over social media. WMN did not feel comfortable with that idea because of the effect on his and the accused’s image. WMN told the accused people would not see him or act towards him in the same way, but the accused said he did not care, he loved him and wanted to be with him.[23]
[23] T 32.
If the conversations about a relationship occurred at dinner, WMN would shut them down because he found it embarrassing. At one point, WMN said he would think about it because he felt pressured. The accused made him feel like he owed it to him, because of all the things he bought him.[24]
[24] T 33.
WMN described spending Halloween with the accused. They spent the entire night together driving around from 10.00pm until 6.00am after which the accused dropped him at his grandmother’s house in Hahndorf at 8.00am. Three days later, the accused was very upset about something to do with ZS’s ex-boyfriend A and stormed out of the house, distraught.[25]
[25] T 34.
WMN messaged the accused on Facebook Messenger, but he did not read it or respond. He then waited for an hour in his room to see if the accused would return. By then it was late at night, and he messaged the accused again to ask him if he was okay. WMN could see that the accused had read his messages but did not respond. He then called him on Facebook Messenger. The accused answered but his speech was slurred and WMN could tell he was under the influence of alcohol. Much of what the accused said did not make sense, but he did tell WMN that he was with the dolphins. WMN looked on Google and located a Dolphin Sanctuary nearby on Garden Island. He then caught an Uber there.[26]
[26] T 35.
WMN found the accused in his car in the carpark with a pipe taped to his exhaust and the driver’s side of the window. WMN ripped off the pipe and the accused got out of the car. He was drunk and unable to stand and WMN saw a half-full bottle of vodka in his hand. WMN then decided to drive the accused home in his car. Before they drove off, the accused said ‘you’re such a hero, thank you. How can I repay you? Can I kiss your hand?’. WMN said yes and the accused kissed his hand. They then drove to McDonalds and then to Semaphore beach to eat the food they had bought. WMN told the accused to get counselling, but they did not really speak about what happened.[27]
[27] T 36-37.
After this incident, WMN was more sympathetic towards the accused and felt as if he was on a bit of a guilt trip. WMN felt bad for the accused and did not want to make things worse. They continued to go out to dinner and engage in other activities.[28]
[28] T 38.
At some point after this the accused proposed the idea of having sex with WMN. He often said that WMN was flirtatious and made him horny, but he would not let the accused have sex with him. WMN was asked whether the accused proposed this in person or over social media, and he responded:
AIt would have been over social media, I believe that yes.[29]
[29] T 39, 34-35.
WMN told the accused he was not really sure. However, WMN felt pressured into it.[30]
[30] T 40.
About two weeks after the incident at the Dolphin Sanctuary, WMN and the accused went to dinner at a Serbian Restaurant in the city. They then rode around on E-scooters, went to a garden at the back of the University of South Australia and then returned to a carpark where the car had been left. They then decided to drive to Semaphore beach. It was about 10.00 or 11.00pm.[31]
[31] T 40.
They went to Semaphore because there was a cool weather system and dry lightning. They parked as far away as possible from the jetty and talked for a while in the car. They then got out and went down to the beach and lay on their backs on the sand looking at the lightning. WMN then gave this evidence:
Anyways, we were, like, talking, and kissing, cuddling. He was, like, rubbing my thighs and, like, my hands, my body, and at some point. He – I said that I was super flirty with him always and he just wanted to do something with me and I agreed at this moment. He then – sorry, give me one second.[32]
[32] T 41. At this point WMN paused and stopped talking until the prosecutor asked him another question.
WMN said the accused was kissing him on his chest, neck and face and he kissed the accused’s lips. This was the first time he had done something like that with the accused.[33]
[33] T 41.
They then cuddled and kissed for about forty-five minutes. The accused then touched his penis over the top of his clothes and grabbed him which made him aroused. He then took off WMN’s pants and sucked his penis for about two minutes.[34] WMN then gave this evidence about what happened next:
He then lay back down and asked me to suck him and he sort of like guided me towards – putting my face towards his penis, and I sucked him for two minutes around as well and then, yeah, he, like, guided my chest (INDICATES) – he put his hand on my chest and guided me back towards the sand after that and then he moved around so that he was, like, in between my legs behind me, and he was wearing grey sweatpants. He, like, pulled them down so they were, like, at his, like, mid-thigh level and then he was on his knees and he tried to fuck me, and, yeah, he wasn’t able to, purely because we had no lube and it was – there was too much friction from obviously the sand and we didn’t have any lube, it wasn’t really working, so he was trying to penetrate me, but it was uncomfortable for me and I told him that it was hurting, and then, yeah, he stopped.[35]
[34] T 42.
[35] T42, 35 – T 43, 14.
WMN said that the accused tried to put his penis in his anus. After WMN told him to stop, he turned around and noticed a man standing about twenty metres away watching them. He felt very uncomfortable and pushed the accused back to where he was sitting next to him. He then told the accused to pull his pants up and then walked over to the man and said, ‘what the fuck are you doing?’. The man told WMN he thought he was a ‘chick’ and WMN said ‘that’s not okay. What the fuck?’ The man walked off and WMN and the accused returned to the car.[36]
[36] T 43-44.
WMN was asked to explain in more detail how he and the accused were positioned when they engaged in oral sex on the beach and the accused tried to penetrate him. They had both been lying on their back and the accused sat up and leant over his right-hand side and pulled WMN’s pants down and performed oral sex on him. He then lay back down and WMN sat up and leant over his left-hand side and performed oral sex on the accused.[37] He then described what the accused did when he tried to have anal sex with him:
… So he’s sort of shuffled around to like be behind me between my legs and he like sort of spread my legs and he like pulled down my pants a little bit further and then, yeah, he was on his knees … I was on my back … I was looking at him.[38]
[37] T 45.
[38] T 45, 36 – T 46, 6.
When they got back to the car, WMN told the accused he was freaked out about what had happened, and he just wanted to go home. The accused then said, ‘why don’t we try doing it in the car. I think it would be easier. There won’t be anybody watching, and it will be a bit more comfortable’. WMN felt guilty and ‘like I had to’ so he agreed.[39] WMN then gave this evidence:
… I was in the driver’s seat and he was in the passenger seat. And he put his head towards my genitalia and sucked me again and then I also sucked him again and then he asked if he could try and fuck me again and I said that I couldn’t. I hadn’t prepared for that. We didn’t have lube and I didn’t feel okay about doing that. So then he proposed the idea of me fucking him which I agreed to and then we moved into the back seat and I fucked him in the back seat for I don’t know maybe four or five minutes and then I said I was tired and we just stopped.[40]
[39] T 46.
[40] T 46, 30 - T47, 2.
WMN explained that he put his penis inside the accused’s anus.[41]
[41] T 47
WMN described how they were both positioned when he penetrated the accused’s anus:
… So basically the doors were shut. He had like a big car. He was on his back with like his legs horizontal and then I was like on top of him I guess like between his legs the same as on the beach, the same sort of layout as on the beach if that makes sense.[42]
[42] T 48, 10-15.
WMN then said that the accused’s legs were bent at ninety degrees, and he was in between his legs. He was asked whether he used a condom when he penetrated the accused’s anus and he gave this answer:
I didn’t even know that that was like – yeah, I missed most of my schooling when I was younger so I didn’t really get any sexual education and that wasn’t something that [CW] ever proposed so I wasn’t really aware that that was a normal thing.[43]
[43] T 48, 29-33.
After WMN stopped having sex with the accused, they drove home. They did not talk much on the way home. They might have said goodnight to each other on social media.[44]
[44] T 49, 51.
WMN said there were two other occasions when he had sexual intercourse with the accused. They were spaced about a week apart from each other. A week after the sexual activity at Semaphore beach, WMN was in his room at home. His door was locked because he always had it locked. WMN received a photo message on Snapchat from the accused. It was a picture of his semi-erect penis and a purple devil emoji. WMN explained that this emoji is commonly used by ‘Gen Z’ in texting to mean that a person is horny. In response, WMN sent a picture of the door to his room. The accused then asked him if they could do what they did in the car again and WMN agreed. The accused said he was scared of coming into his room because he thought their roommate JS might see him and wanted WMN to go to his room. WMN said no.[45] These communications occurred via Messenger.[46]
[45] T 51.
[46] T 53.
Because the photograph of the accused’s penis was sent via Snapchat and WMN did not record a photo of it, the photograph no longer existed. WMN said the photograph of his door may have been of an open door and said he quite often locked his door, but it may have been open at that time. There was no text accompanying that photograph. WMN said that he sent the picture of the door because when he received a message on Snapchat, he sent a photograph back, ‘it’s a reoccurring thing that you do on Snapchat’. The door just happened to be where his camera was facing.[47]
[47] T 52.
WMN heard the accused lock his door from the outside but left his ‘starry night light thing’ on and then walked to the toilet and then back up the hallway and snuck into WMN’s room and locked the door with WMN’s key.[48] The accused told him he was scared of JS seeing him coming into his room because of the mirror that was between WMN’s room and ZS’s room. If ZS and JS had their doors open, JS could see into the accused’s room and vice versa.[49]
[48] T 53.
[49] T 54.
WMN then explained what happened after the accused entered his room:
I sat down on my bed, and he sat down on my couch, and I think we talked for a minute, and then he asked me to come over and sit on the couch with him. I don’t remember what we talked about. And then I sat on the couch with him and, you know, we started kissing, and he was, like, kissing my neck and my body, and he was, like, again grabbing my penis over the top of my clothes. And I don’t remember much else from that bit. And then we both stood up and he undressed both of us. He undressed me, and then himself. And then we both sat back down on the couch, and I don’t remember in which order it happened, but we both sucked each other off. And then again, I told him I couldn’t bottom because I wasn’t comfortable with that. And then he agreed to, or said that he wanted to bottom. And then, yeah, I penetrated him again, and this time again I pretended to – I pretended to ejaculate because again I was tired and it didn’t feel like it was ending. And then after I did that, he then ejaculated on my couch.[50]
[50] T 55, 26 – T 56, 6.
WMN said that he could not remember the order of oral sex and did not have a specific memory of this occurring but said that every time they had those sorts of interactions, that is what they did. WMN told the accused he could not ‘bottom’ after the accused said that he wanted to ‘fuck’ WMN.[51]
[51] T 57.
WMN said that when he ‘fucked’ the accused, he was on his stomach face down on the couch and WMN was on top of him. After WMN pretended to ejaculate, the accused ejaculated onto the couch. As soon as it happened, WMN was not happy and said to him, ‘you’re cleaning that up’. WMN told the accused he was tired and had school in the morning and wanted to go to sleep. The accused said he wanted to sleep with WMN in his bed, but he said no because he did not like people sleeping in his bed. WMN told him to sleep on the couch and the accused was upset. When WMN woke up in the morning he was gone. The next day the accused came in and cleaned up the couch as well as the carpet where WMN had spilt a Monster energy drink.[52]
[52] T 58, 76-77.
About a week later, WMN was in the kitchen with the accused. The accused suggested that they play Mario Kart together in his room and he agreed. After eating in the kitchen, they went back to the accused’s room and he locked the door from the inside. They sat on his bed and played Mario Kart for a while.[53]
[53] T 59.
The accused then told WMN that he was horny and wanted to have sex. He started kissing WMN and telling him he was beautiful. They stood up and got undressed and then both sucked each other on the bed. WMN then explained what happened next:
And then anyways, he said that he was sick of bottoming for me, and he wanted to fuck me, and I said, ‘that’s okay’. So, he had lube in his drawer. I remember him pulling it out of his drawer and like a pink-vibrator-thing fell onto the floor. And then he put lube on my butt, and then he tried to fuck me. And after a while, I told him that it hurt too much, and that I didn’t – I wasn’t, you know, enjoying it. And he said that the bed was being – like, he was being too rough while we were doing it, and he said that the bed was being too loud. It was like a squeaky kind of bed, I don’t know, it squeaked whenever you like moved on it. So, then he suggested that we had sex on the floor, on his carpet, between his wardrobe and his bed. There was really only enough for like – enough room for one person to like be flat on their back. You couldn’t have two people flat on their back in this space. And then, yeah, when we were on the floor, I then fucked him. And that’s all that I can remember.[54]
[54] T 60, 7-26.
WMN said that he was flat on his stomach on the bed and the accused was on top of him when the accused inserted his penis into his anus. The accused was being too hard and fast, and it hurt. When they switched, they moved to the floor. He could not recall if he ejaculated but said the accused ejaculated onto the carpet on his floor.[55] They then sat back upon the bed and WMN told the accused that he was not really interested in having sex with him anymore or doing anything with him anymore he just wanted to be friends. The accused was upset and said he loved him, he had bought him all these things and he wanted to move into a house together and do things for him. WMN said no. The accused then suggested an open relationship, meaning being together but still having sex with other people and WMN said, ‘maybe’ but was not very keen on the idea.[56]
[55] T 61.
[56] T 62.
The accused was sad and upset but WMN did not have the energy to counsel or console him as he was dealing with things himself. He went back to his room shortly afterwards because he was tired.[57]
[57] T 62.
WMN explained that the accused had sent him photographs of houses that they could move into together. Those photographs were sent via Messenger and WMN received them when he was back in his room.[58]
[58] T 63.
WMN said this was the last time he had sexual intercourse with the accused, and he did not believe he was in a relationship with him. They stopped talking but would say hello in the hallway and message each other occasionally. They did not go out for dinner. They had a conversation during which they were both upset with each other about things that had happened and WMN then blocked the accused on most social media. The only platform upon which he did not block the accused was Messenger. He sent the accused a message telling him he was going to talk to ZS in the morning and that he had decided that what was going on was not okay. He then blocked him on Messenger.[59]
[59] T 66.
WMN was asked if he had any of the messages between himself and the accused:
Unfortunately, I was – so with Messenger, as soon as you’ve blocked somebody everything disappears. And then I eventually – after I had reported this to the police, I went and unblocked him on everything in an attempt to re-salvage or salvage those messages, and he had deactivated all of his social media, so I was unable to access the majority of these messages. The only ones that I was able to access were ones that I had found in screenshots that I’d taken accidentally or throughout the time that I was talking to him. I managed to salvage some screenshots from my camera roll.[60]
[60] T 66, 13-24.
The screenshots did not show any of the conversations that occurred.[61] The screenshots showing call logs were tendered: Exhibit P2. WMN could not recall taking the screenshots and said it may have been shortly after he reported the matter to police. The accused’s name appears as ‘[C]’ in the screenshots. WMN said P2 accorded with his memory of how frequently he and the accused would talk to each other on the phone which was most days.[62]
[61] T 66.
[62] T 71-76.
The next morning after blocking the accused, WMN messaged ZS saying he wanted to talk to him. He and ZS then sat down and talked on the deck in the back area of the house[63]:
And yeah, I basically told [ZS] that [CW] and I had been having sex and confirmed to him – them, sorry, that [CW] had been buying things for me and I guess, that sort of stuff.[64]
[63] T 67-68.
[64] T 67, 12-16.
WMN said this conversation occurred about a week or two after the last occasion of sexual intercourse and was in early December. He told ZS that ‘[CW] and I had been fucking’.[65]
[65] T 68, 36.
ZS told WMN he was sorry and that he should go and report it as soon as possible. ZS also said that WMN should talk to SC.[66] WMN then left the house and caught the bus to his grandmother’s house in Hahndorf to clear his head. He sent SC a very long message on Messenger to explain everything. SC responded by telling WMN that he was sorry that had happened in the house, and he was going to remove the accused from the house as soon as he could and would message WMN when he was gone so that he could come back.[67]
[66] T 69.
[67] T 70.
WMN returned to the house once the accused was gone. A few days later he went to the police station and spoke to an officer called Hadley. Before attending the police station, he had other conversations with ZS and SC, but he did not recall what was said.[68]
[68] T 70.

Prior to blocking the accused, WMN communicated with him on Messenger, Snapchat, TikTok, Instagram and via text message. WMN said he blocked the accused’s number on his telephone and when he unblocked it to look for the text messages, the accused had blocked his number and he could not access the messages.[69]
[69] T 71.
Up until the last occasion of sexual intercourse, WMN went out for dinner with the accused and spent time away from the house with him. Most of the time the accused paid for the dinners on his card.[70]
[70] T 77.
WMN was asked to explain what was going through his mind during the first occasion of sexual intercourse with the accused on Semaphore beach. He said:
Well, yeah, as, you know, the first thing that came to mind was the incident at the dolphin sanctuary. I could tell that he was quite unstable after that and that he was struggling. He also quite often talked about his parents. And there was other things that I knew were stressors in his life, and then, you know, so that made me feel guilty. And then paired with, you know, affecting his mental health, and also all of the things he was buying me, I just felt obliged to because yeah, I felt bad.[71]
[71] T 78, 9-8.
WMN said he felt this way throughout his sexual relationship with the accused.[72]
[72] T 78.
WMN did not speak directly with the accused after they blocked each other.[73]
Cross-examination
[73] T 79.
WMN agreed that his first contact with police was when he went to the front office of the Port Adelaide Police Station and spoke to a uniformed female officer behind the desk.[74]WMN agreed that the first affidavit he signed was on 16 December 2020.[75]He then agreed that he first went to the Port Adelaide Police Station on 13 December 2020.[76]
[74] T 80.
[75] T 81.
[76] T 82.
When asked whether in his first statement he gave his version of events to the best of his ability he said:
I believe that it was to the best of my ability at the time. I was obviously in shock, and I guess a bit clouded. I had blocked a few things out of my memory, so it wasn’t clear. I hadn’t received psychiatric treatment at that point in time, so I don’t believe that it was the best or most accurate recollection of events, but at the time that was the best recollection of events I had.[77]
[77] T 82, 6-13.
WMN said that in 2021 he had been diagnosed with bipolar disorder.[78]
[78] T 83.
WMN agreed that he gave a second affidavit on 25 April 2021 and a third on 5 June 2022. He agreed that in third affidavit he gave a bit more information about what happened on the night he said that he and the accused had sex on Semaphore beach.[79]
[79] T 83-84.
WMN confirmed that he gave a fourth affidavit on Friday 13 January 2023, 3 days before the trial commenced. When asked whether that was as a result of a conversation, he had with the prosecutor during which he gave a few more details, he replied:
It wasn’t because I had a conversation with the prosecutor. The reason that I had given more evidence or a new affidavit on that Friday was because I have been living overseas for the last four to five months now. I have had the clarity and time to myself to think. I haven’t been stressed with work and school and family and friends and everything else. I’ve had the time to focus on myself, and I’ve regained a lot more of my memory from the last few years, so that’s why I made a statement then. I was unable to give a statement while I was living in Germany.[80]
[80] T 84, 15-25.
When asked whether his memory was better now than in December 2020, WMN said that some parts he had ‘regained’ better and other parts he had forgotten. There were things that had come to him throughout the years that he had remembered. Nothing had come to him between Friday 13 January 2023 and the time he commenced giving evidence.[81]
[81] T 84.
WMN was taken to P1 and asked about the furniture in the accused’s room. He could not recall if there was a television in the room but said there was a built-in wardrobe and a bedside table. He said that to the best of his memory the room was carpeted and there were no rugs.[82]
[82] T 86-87.
WMN said on the night when SC told everyone he was 19 years of age he thought he was drunk because he had slurred speech and was very talkative, laughing and happy.[83]
[83] T 87-88.
WMN denied that on the night that he had the first dinner with the accused it was him who had offered to take the accused, ZS and his partner A out for dinner and when ZS and A declined he and the accused went out alone. WMN denied that he paid for the dinner.[84]
[84] T 88.
WMN denied that for the next couple of weeks he would often invite other people in the house out to dinner with him and that after a couple of weeks he stopped asking because no one ever came.[85]
[85] T 88-89
WMN agreed he did not have a lot of money at the time but denied having problems getting money from Centrelink because his documents were not in order.[86]
[86] T 89.
WMN insisted that the accused paid for all of the dinners and denied the suggestion that the accused never bought him gifts. He agreed that the accused had bought makeup for him but denied that this was when he was a bit short of money.[87]
[87] T 89.
WMN confirmed that, to the best of his knowledge, before the first sexual encounter the accused had sent a message to him via some sort of social media platform saying he was horny and wanted to do things with him. When it was put to WMN that he had not told police that this was said by the accused over social media he said he could not remember.[88]
[88] T 90.
WMN agreed that the first time he said this in a police statement was on Friday 13 January 2023. The following part of his statement was put to him, and he was asked if he told police this:
QAnd in that statement from last Friday did you say this, ‘[CW] and I sat on the beach talking, kissing and cuddling for about 45 minutes. He was lying to my left touching my thigh and kissing my neck. He said “Please can we do something. You’re so flirty but you never let me do anything with you. You always make me so horny, it’s not fair”. I felt comfortable and agreed.
AThat’s not what I said. [89]
[89] T 91, 7-15.
WMN was then shown his statement dated 13 January 2023 and taken to this passage. He then agreed that this is what was in his statement. When it was suggested that this was the only statement in which he had said that the accused had said those things he said he was not sure, and he had not read over his statements. He agreed that what he was describing in that statement was a conversation in person and not on social media.[90]
[90] T 92.
When asked whether the first thing that he said that happened on Semaphore beach was that the accused sucked his penis, WMN said ‘I would need to read over my statement again, I’m sorry’.[91] When asked to cast his memory back if he could, he said:
AIt’s just that I’m a bit stressed today and my mind’s foggy. So, yeah, I don’t remember particular sequences of events that night, but I did detail it in my statement on Friday because I did have quite a clear mind on Friday, and I feel like if I read over my statement again I’m more than happy to detail to you the sequence of events, but right now I’m not able to.
QWell you were able to detail the sequence of events this morning when you were being asked questions by Ms Anderson weren’t you.
AAnd I had a chance to read over my statement this morning, correct.
QSo were you, when you were giving evidence this morning, were you remembering things that actually happened or were you just trying to repeat what was in your statement.
ANo, I was remembering things and I was also using my statement as a guide because as you can imagine this is a stressful time for me and it is hard to remember these things.[92]
[91] T 93, 9-10.
[92] T 93, 17-36.
When asked whether the man he saw watching on Semaphore beach was masturbating, he said he believed so. He was asked why he did not say that in evidence that morning and he said it was because he missed that part.[93]
[93] T 94.
WMN confirmed that on the beach he and the accused performed oral sex on each other and did the same thing in the car. He said the accused did penetrate him on the beach, but it was uncomfortable, and he penetrated the accused in the car. When asked whether this was the first time that actual oral or anal sex with the accused had happened, he said ‘to the best of my knowledge’. He was then reminded that he had not said anything else had happened before this occasion, he replied:
Well in the future I may remember more things. Yes, it is to the best of my recollection of events that I have now, yes.[94]
[94] T 95, 13-15.
WMN agreed that the painful attempt at anal sex on the beach that was interrupted by a man masturbating was something that stuck pretty clearly in his mind. It was then put to him that in his first statement to police on 16 December 2020 he did not say anything about having oral sex on the beach or an attempt to have anal sex. He said he did not remember.[95]
[95] T 95.
It was put to WMN that he said this about what happened on the beach in his statement dated 16 December 2020:
About two weeks later, approximately 17 November 2020, we went for a drive late at night to Semaphore beach. We were running around just being dickheads and he was being flirty. I got flirty back. I’m not going to say I didn’t. I was laying on the ground and he was laying on top of me feeling my arse and kissing me. Then we went to the car as I had said something like, “I don’t really feel comfortable here” and he said “Okay then, let’s go to the car”.[96]
[96] T 95, 29-38.
WMN then explained:
So, as you can see there I told you previously that I was quite foggy and didn’t have much of my memory at the time that I gave that statement. You can see that I said I was uncomfortable. I never really detailed the reason that I was uncomfortable, but as per the statements that I’ve given later on you can see that the reason that I was uncomfortable was A because we had no lube and B, because there was somebody watching us.[97]
[97] T 96, 1-9.
WMN was then shown the relevant part of his statement of 16 December 2020, and he agreed that he did not say anything about either of them engaging in oral sex with each other on the beach or the accused having anal sex with him on the beach.[98]
[98] T 97.
It was also put to WMN that there was no mention in his statement dated 16 December 2020 that he performed oral sex on the accused. He replied, ‘No but there is in my other statements’.[99] He then said he thought he had said this in his last statement. He was taken to the statement dated 13 January 2023 and agreed that he did not say anything in it about performing oral sex on the accused. WMN then said that he thought he had said this in his 2021 statement.[100]
[99] T 97, 32-35.
[100] T 98-99.
WMN agreed that in his first statement to police he said that in the car, ‘I was doing the penetrating and was on top as I told him I couldn’t be bottom as I hadn’t prepared’. He was asked why he would need to say that if the accused had already had anal sex with him on the beach which ‘wasn’t working’ because they did not have lube. He replied:
ABecause it wasn’t able to have been done on the beach because we did not have lube at the beach.
QDid you have lube in the car.
AI don’t know. I don’t remember.[101]
[101] T 99, 32-35.
It was put to WMN that in his statement of 5 June 2022 he did not say anything about him having performed oral sex on the accused. The relevant part of the statement was:
We lay on the sand at the beach at Semaphore south of the jetty for about 45 minutes talking and cuddling. I cannot recall what we were talking about. [CW] had oral sex with me. I was lying on my back and he was to the left of me on his back then he rolled over up on top of me and pulled my pants down. He moved down my body to be between my legs and put my penis in his mouth to suck me off. He gave me oral sex for about two minutes. I told him to stop because I wasn’t comfortable. I’m almost certain that it was this night that I saw a man on the beach masturbating standing about 20 metres away from us watching us and that’s why I told [CW] to stop.[102]
[102] T 102, 14-27.
WMN responded:
But I said that we had oral sex. So, [CW] had oral sex with me. That could be interpreted as it was giving and receiving, or you could just interpret it the way that you are interpreting it which is giving.[103]
[103] T 102, 31-34.
WMN agreed that he did not put any details in that statement about him sucking the accused’s penis or about any anal sex on the beach that night. He agreed that the first time he mentioned this was in the statement he gave on 13 January 2023.[104]
[104] T 103.
WMN was then cross-examined about his description of the accused being behind him when he tried to penetrate his anus on the beach. WMN explained that what he meant by behind was that the accused was between his legs facing him.[105] WMN said he may have used the wrong word because English had not been his first language for six months.[106]
[105] T 103.
[106] T 104.
WMN was asked if he was able to say whether his evidence was given from his memory or from his memory of reading his statements that morning. He said it was both.[107]
[107] T 106-107.
WMN was taken to his statement of 13 January 2023 in which he said this:
I lay on my right side and gave [CW] oral sex by sucking on his penis with my mouth, whilst I lay on my side, he had his hand on my head guiding me, this went on for about two minutes before [CW] guided me onto my back by gently pushing my chest towards the ground. He moved around to kneel between my legs so that we were facing one another, I was lying on my back with my pants pulled down to my thighs, he did not say anything to me during sex, [CW] then pushed my body towards him and tried to put his penis into my butt, but it wouldn’t work because of the friction, we didn’t have lube.[108]
[108] T 108, 1-12
WMN said that the sentence ‘I was lying on my back with my pants pulled down to my thighs’ referred to when he and the accused were having oral sex and also anal sex.[109]WMN was reminded that in evidence he had said that it was the accused’s pants that were around his thighs. He said that this was also the case. It was put to him that the reason he had given evidence about the position of the accused’s pants was because he was trying to repeat what was in his statement but had made a mistake. WMN denied this.[110] It was put to WMN that there was no oral sex or anal sex on the beach or in the car. He rejected this suggestion.[111]
[109] T 108.
[110] T 110.
[111] T 110-111.
WMN agreed that in his first statement he did not mention that he and the accused moved into the back seat where anal sex then occurred. That was something he had since remembered.[112]
[112] T 112-113.
WMN was reminded of his evidence that morning in which he said ‘and then he took off my pants and he sucked me for about two minutes’. He was then asked whether the accused took off his pants or whether he had them around his thighs. WMN said that he had already explained that his English ‘isn’t that great’ so he may have been using the wrong terminology. What he meant when he said this was that the accused had pulled his pants down to his thighs.[113]
[113] T 114-115.
WMN said he had been back in Australia for two days but was born in Australia. Ninety percent of his schooling occurred in Australia apart from in year 9 and 10 when he was in Germany. His native language was both English and German. He spoke German ninety percent of the time at home. He described himself as bilingual. After finishing year 12 he enrolled to start university. He had been employed in the fast-food industry and had worked for the Attorney General’s Department.[114]
[114] T 116-117.
WMN was asked how he could see the light coming from the accused’s room on the occasion when he said the accused came into his room and sexual intercourse occurred. He said that his built-in wardrobe had mirrors and if his door was open, he could see the accused’s door in those mirrors.[115]He agreed that he could not remember whether he could see the accused’s door on this particular occasion but said his mind had been quite foggy and there were parts that he still did not remember.[116]
[115] T 119-120.
[116] T 121.
WMN confirmed that prior to the second occasion of sexual activity, the accused sent a message to him in which he asked whether they could do what they did in the car. After that, they exchanged further messages in which the accused mentioned he was worried about other people seeing him. WMN agreed that the accused did not say ‘can we do what we did on the beach’ but said this was because the accused was unable to put his penis fully inside him on the beach, but they were able to have sex in the car.[117]
[117] T 122.
WMN was then taken to his statement of 13 January 2023 in which he said this:
[CW] sent me the naked photo of his “semi” (semi-erect penis) and with a purple devil emoji. This emoji is colloquially known amongst gen Z to mean horny. So when [CW] came into my bedroom we were sitting separately. He was on the couch and I was on my bed. He said, can we do what we did in the car.[118]
[118] T 123, 13-20.
WMN agreed that in the statement he was describing something the accused said to him in person. WMN explained:
Yes, but if you look at the fact that you mentioned before that I was going off my memory and not off my statements, again, this is my memory, and it is clouded at times. So, you can imagine that some of the conversation is hard to distinguish whether we had conversation in person or by text because there was that many conversations.[119]
[119] T 123, 29-35.
WMN said he was now not sure if it was said in person or on social media. He was asked why he did not say he was not sure when he was asked questions about that by the prosecutor in evidence and he said he did not know.[120]
[120] T 124.
WMN agreed that his first statement to police was only a few weeks after the sexual activity with the accused. He agreed that he told police, ‘I can’t remember exactly how we ended up having sex, but it was on my couch’ and ‘I know we were naked, but I can’t picture or remember how we got naked’ and ‘I penetrated his arse and he came on my couch, which made me upset but I don’t think I said anything’. WMN said he had a better memory of this incident now.[121]
[121] T 126.
WMN agreed that in his statement dated 16 December 2020 he did not say that the accused told him he wanted to have sex with him. He agreed that the description of the accused wanting to ‘fuck’ him meant putting his penis in WMN’s anus.[122]
[122] T 127, 15.
WMN said that he was not wearing a condom when he had sex with the accused in his bedroom. He said the accused never mentioned wearing a condom and he was not aware that this was something he needed to do.[123] He said he did not really know what a condom was back then, and he did not get sexual education at school because he was bullied quite severely in the years that he would have been taking sexual education classes and was not at school for quite some time. He then said he did not know what a condom was. When asked if he had ever heard about a condom, he said he was sure he had but he thought it was something men used so they did not get women pregnant.[124]
[123] T 127.
[124] T 128.
WMN said that he pretended to ejaculate by moaning and then pushing himself forwards and then he said, ‘oh I came’.[125]
[125] T 128-129.
WMN said that the police did not do forensic testing on the couch because by the time he had reported the matter to police ‘we had gotten rid of the couch’.[126] He said the couch was not his, but it was his idea to get rid of it. He did this because he bought more shelves, and he did not have room for the couch.[127]He thought that SC may have taken the couch to the tip.[128]
[126] T 129, 7.
[127] T 129.
[128] T 130.

WMN said that after the second occasion of sexual activity he did not particularly want to engage in sexual activity with the accused. He said that he went into the accused’s bedroom because he had invited him to play Mario Kart and he thought that was ‘pretty cool’. They played it on the television.[129] It was put to him that there was no sexual activity with the accused on this occasion and he rejected that. [130]
[129] T 137.
[130] T 136-137.
WMN said he could not recall whether the police took his mobile telephone.[131]
[131] T 139.
WMN was invited to read his statements during an adjournment in order to comment on two propositions: that he did not say in any of his police statements that the accused said via social media he was horny and wanted to do stuff with WMN or that he sucked the accused’s penis in the car at Semaphore beach. Following the adjournment, WMN confirmed he had read all of his statements. He then gave this evidence:
QDo you agree that you didn’t say in any of those statements that [CW] said that he was horny and wanted to do things with you on social media.
ADon’t agree.
QYou say you did say that in a statement.
AI’m not saying that either. What I’m saying is that it was implied through his actions. So, it was said in person. According to my statements, it was said in person. I gave evidence that it was said via social media. Again, I’m doing this to the best of my memory.
QRight, but – sorry I don’t want to cut you off.
AAnd you can see as I mentioned in my statement and in my thing – evidence that I gave yesterday, that I said that [CW] sent me a photo of his erect penis with the purple devil emoji. As I said before, that is colloquially known as meaning you’re horny amongst most people who use social media. So, yes, I believe that that shows that he did imply that he was horny via social media.[132]
[132] T 144, 11-29.
WMN agreed that the first time he mentioned the horny devil emoji was in his statement dated 13 January 2023. He said this was because he had been living overseas and had gained some clarity and memory and had been having therapy.[133]
[133] T 145.
WMN did not agree that he had not said anything in his statements about sucking the accused’s penis in the car at Semaphore. He gave this evidence:
AI don’t agree. So if you look in my first statement on p.5, para.14, I said that [CW] sucked me off first. So that implies, again, that he did it first. So no, it’s not directly mentioned that I sucked his penis afterwards but considering the fac that I used the word ‘first’ implies that it did follow. And you can see in my evidence that I gave yesterday, I did say that it did follow.
QI just want to be completely fair about this. Is the full passage in that statement the full paragraph where you’ve said, ‘[CW] sucked me off first’, does it say this: ‘As soon as we got into the car, [CW] sat in the passenger seat and I was in the driver seat. I said to him something like, “Just remember I am 16” and he said something like, “I’ll worry about that later”. We had oral sex and then anal sex in the car. [CW] was stroking my leg and put his head down toward my genitalia like he wanted to suck me. I took my pants off because I knew what he wanted, but I didn’t want to back out because I knew he’d get angry and I felt I was obliged to pay him back for all the gifts and dinners. [CW] sucked me off first, and by that, I mean he sucked my dick. I was doing the penetrating and was on top as I told him I couldn’t be bottom as I hadn’t prepared. That was it for that occasion’. Is that the full paragraph that you’re referring to.
AThat is correct. That is the full paragraph.
QThose last couple of sentences, ‘[CW] sucked me off first, and by that, I mean he sucked my dick. I was doing the penetrating and was on top as I told him I couldn’t be bottom as I hadn’t prepared’, isn’t that what you really meant by the word ‘first’ that he suck you off before penetration.
ANo, because there, I would use a comma if that’s what I meant. As you can see, it’s a full stop so it’s a new idea. And in my opinion, as you can see in one of my later statements that I gave, I gave more detail about the car and what happened in the car. And again, yesterday I gave more detail about what happened in the car. So, in my opinion, I just wasn’t – I didn’t expand on the topic as much in that first statement. However, it is two separate ideas because there is a full stop in between.
QJust to be clear, because her Honour doesn’t necessarily have the statement in front of her, the full stop that you’re referring to, is that after the sentence, ‘[CW] sucked me off first, and by that, I mean, he sucked my dick’.
AYes correct.
QAnd then full stop, and then the next sentence, ‘I was doing the penetrating and was on top as I told him I couldn’t be bottom as I hadn’t prepared’.
ACorrect. So because they’re two different sentences, it’s separated by a full stop, I believe that that’s two separate ideas.
HER HONOUR
Q[WMN] was this a statement that was typed up for you by the police and given to you to sign.
AThat’s correct, yes, in December, so in 2020.
QSo when you signed it, was that full stop already there.
AYes it was.[134]
[134] T 145, 29 – T 147, 14.
WMN said he could not recall whether he changed any full stops to commas or vice versa when he read the statement before signing it.[135]
[135] T 147-148.
WMN agreed that in his statements of 25 April 2021 and 5 June 2022 there was no mention of anything that happened in the car at Semaphore. He also agreed that in his statement of 13 January 2023 he did not make any mention of sucking the accused’s penis in the car at Semaphore.[136]
Re-examination
[136] T 150.
WMN said that he did not speak English when he was in Germany. He said it has been difficult to readjust to English, especially ‘Australian English’. He said he had not had difficulty communicating with people in English, but it was more ‘having trouble understanding what people are saying’.[137]
[137] T 151, 35-36.
I asked WMN whether he had any difficulty understanding anything that had been said to him in court by either counsel or myself. He replied:
That’s why I’ve asked for clarity on what you guys exactly mean. So, no, after I’ve asked for more clarity on what you guys are saying exactly, I think that I’ve understood all of the questions.[138]
[138] T 152, 11-14.
WMN said that when he described being stressed when he gave his statement on 16 December 2020, he said he was dealing with family problems and struggling with friendships and relationships because he had not been in Adelaide for very long. He was studying and trying to find a job and all of those things caused a mountain of stress for him. He felt nauseous, had mind fog and struggled to remember things. When he gave the statement, he did not know what level of detail he was required to provide.[139]
[139] T 153.
WMN said that up until the statement he gave on 5 June 2022 he had been receiving constant psychiatric care and talking through the things that were traumatic for him helped to jog his memory. He had a stable job and a less stressful life. After that when he was overseas, he was away from lots of stressors in Australia and living overseas and receiving treatment helped him to gain more clarity and insight into his mental health.[140]
[140] T 154.
WMN said that he used his statements as a guide, and they assisted to jog his memory.[141]
[141] T 158.
WMN said he had a memory of seeing the starry lights from the accused’s bedroom but could not recall where he was when he saw that.[142]
[142] T 159-160.
Finally, WMN said he had a specific memory of the accused asking him if they could do what they did in the car, he just could not remember in what form he asked him.[143]
[143] T 160.
ZS – Housemate
ZS met SC about six years ago. On 30 August 2020, ZS moved into a house owned by SC at Rosewater. The accused moved into the same address about three weeks later. ZS observed the accused to be a very nervous person, who suffered from a lot of anxiety and would often keep to himself.[144]
[144] T 163.
ZS said that WMN moved into the house on 26 October 2020. He described WMN as ‘very energetic and flamboyant and he likes to make friends, very enthusiastic about his presence on social media’.[145] ZS said that WMN was always making TikToks with his high school friends and posting quite regularly, upwards of over five times a day sometimes. ZS was a friend of WMN on Facebook and followed him on TikTok and Snapchat.[146]
[145] T 164, 5-7.
[146] T 164.
When matters relating to the house were discussed, this occurred on a group chat on Facebook Messenger.[147] ZS said that at some point in November when WMN had obtained a job at McDonalds in Port Adelaide he was very enthusiastic about it and wanted to take his housemates out for dinner. ZS, his partner A and the accused were sitting in the loungeroom in the shed and WMN came out and invited all three of them out to dinner. He and A declined but the accused went to dinner with WMN. [148]
[147] T 165.
[148] T 165.
After this dinner invitation, ZS noticed that the accused and WMN spent more time together. The accused started to give WMN lifts to school in the morning and drove him home in the afternoon. He gave him driving lessons. The two of them would go out to dinner and go to escape rooms.[149]
[149] T 166.
ZS did not see WMN and the accused alone in each other’s rooms. The accused typically had his door ajar so there was a regular airflow through his bedroom as he had two pet budgies. He said it was rarely closed. WMN would typically have his door open. ZS said ‘he was very welcome to interaction with the housemates and would chat to people as they passed his doorway’.[150]
[150] T 167-168, 34-36.
On 4 December 2020, WMN knocked on his bedroom door and asked him if he could come into his bedroom. WMN asked ZS to close the door because he did not want the accused to hear what he was saying. WMN then told him, ‘We’ve had sex. He thinks we’re in a relationship. I don’t know what to do’.[151]
[151] T 169, 23-24.
ZS encouraged him to speak with SC. WMN said he would do that after his trip away for the weekend. On the Monday when WMN returned, he told ZS that there was an occasion when the accused wanted to have sex on the floor so that the bedframe would not creak against the floorboards. This conversation occurred in WMN’s bedroom.[152] After this conversation, WMN and ZS went to see SC together. A decision was then made to go to the police station and ZS gave his first statement to police on 21 December 2020. The accused moved out the week after they spoke with SC.[153]
Cross-examination
[152] T 169-170.
[153] T 170-172.
ZS agreed that for a couple of weeks after the first dinner invitation extended by WMN, the accused and WMN would invite other housemates out for dinner with them. ZS never went along with them. He could not recall anyone else accepting the invitation. After a couple of weeks, they stopped asking the question.[154]
[154] T 173.
The accused had a star-shaped tattoo on his chest and a tattoo of a little animated girl in a paper boat on one of his pecs. He had not seen them for a couple of years, but they stuck in his mind. He saw the tattoos when accused would often walk from the bathroom to his bedroom with a towel around his waist and his chest exposed.[155]
[155] T 173-174.
SC – owner of Rosewater house
SC is the live-in owner of the house at Rosewater and his parents are registered owners. In September 2020, the accused moved into the address. SC had advertised the room on Facebook, through some groups like Queer Housing. In October 2020, WMN moved in. At that time, the accused, ZS, JS and SC’s friend AB were living there. AB would sleep in the garage when he stayed over.[156]
[156] T 176-177.
SC described the accused as a nice guy. WMN was a young active guy. He knew that WMN had problems with his parents and that was why he was moving down from Renmark. SC learnt this from WMN via Facebook Messenger.[157] SC thought this was a good opportunity to move somewhere safe and be in a queer house setting.[158] If matters needed to be communicated amongst the household, this was done on a Facebook page.[159]
[157] T 179.
[158] T 178.
[159] T 179.
SC said that when WMN first moved in they were all hanging out in the lounge area. WMN was asked how old he was, and he said 16. SC said he did not know WMN was 16 until the day he moved in.[160] SC observed the attention that the accused gave WMN, which he described as unsettling. The accused appeared to be very curious to know more about WMN.[161] He said it was unsettling because of the previous conversations SC had with the accused about the work that he did.[162]
[160] T 179-180.
[161] T 179.
[162] T 180.
SC said that the accused and WMN ended up going out to dinner together that day. He said it was WMN’s suggestion for them all to go out as a household to meet everyone. The accused was excited to be going.[163]
[163] T 181.
After the dinner, the accused and WMN became inseparable. The accused picked up WMN from school and brought him home. SC had a doorbell camera and received notifications when people came and went. He said he noticed the fact that the accused and WMN were coming and going at all hours of the day and evening. SC said the tenants were aware of the doorbell camera.[164] The accused worked shift work which involved him being gone at all hours.[165]
[164] T 182.
[165] T 183.
SC did not see them spending time together in the house, just coming and going.[166] SC said he encouraged everyone to keep their doors open, but the majority of the time everyone in the house had their bedroom doors shut.[167]
[166] T 183.
[167] T 184.
SC spoke with the accused about his relationship with WMN on a number of occasions.[168]
[168] T 184-185.
In December 2020, SC received a text message from WMN in which he told him that he and the accused had had sexual intercourse. SC said he was very angry when he found this out because he had told the accused several times not to have sex with WMN. When he found out this had happened, he was very angry and contacted the accused who was on his way to Port Pirie. He messaged the accused ‘to get his arse home immediately’ because they needed to talk.[169] The accused replied saying he would be an hour or two. SC said he would wait.[170]
[169] T 186.
[170] T 187.
SC described what happened when the accused arrived home:
AWell, it involved my friend and I, but we just spoke to him about the fact – well, that it had become apparent that he had slept with [WMN] and that he – well, I just couldn't stop saying it was wrong what he’d done and that he – I guess we probably talked for about four hours just trying to get him to say what he had done was wrong, because he couldn’t quite understand that it was inappropriate what he had done, which I couldn’t wrap my head around, especially after me stating clearly on several occasions to not have sex with him, and he assured me he wouldn’t. So, I – yeah, we just kept on talking about that what he had done was wrong and I just needed to hear him say it because he needed to hear himself say it to understand the severity of it.[171]
…
QHow did this conversation begin.
AIt was just about basically just saying that we know that he has had sex with [WMN], and that what he had done was inappropriate. I was trying to get him to understand that he worked in this field, he’d just finished study in childcare, and that he should know that this is wrong on oh so many levels, and that he need to – I needed to hear him say he that he had done it, and he needed to be able to say it out loud so he could understand, and when he finally did say that he did have sex with [WMN], but he then said ‘But we are in love and I love him’.[172]
[171] T 187, 9-23.
[172] T 187, 30.
When the accused admitted he had sex with WMN he was very nervous and scared and anxious. This happened about halfway through the four-hour conversation. He had been panicky and stressed prior to this.[173] SC said that the accused ‘denied it to begin with’ but SC told him that they knew it to be true and he needed to ‘come clean and be honest with us.’ The accused ‘just kept denying it until after this lengthy conversation, then he was able to admit what he had done’.[174]
[173] T 187, 31 – T 188, 3.
[174] T 189, 17-22.
The accused did not say how many times he had had sex with WMN. The accused said, ‘Yes, we had sex, but I’m in love with him, we love each other’.[175] He said the same thing the next day when SC was leaving.[176] He said this a handful of times.[177] After the accused admitted having sex with WMN he was sad, anxious, crying and emotional. The conversation ended when SC told him to move out immediately. They then came to an agreement that he could stay the night but needed to be out of the house by morning.[178]
Cross-examination
[175] T 189, 190, 17-19.
[176] T 191.
[177] T 193.
[178] T 192.
SC said that the accused had a tattoo of two birds and a star on his chest. He walked around with his top off.[179]
[179] T 193-194.
WMN moved out of the house in early 2021. SC said there was a brown couch in WMN’s room. The couch was already there when WMN moved in; SC bought all the furniture for the house. He no longer had the couch because ‘it didn’t work’.[180] He said it was not suitable for being able to sit down and watch television and have guests over. SC said he thought it was still in the house when WMN moved out. SC sold it on Marketplace.[181]
[180] T 194.
[181] T 194-195.
SC said he never saw the accused and WMN together in either of their bedrooms.[182]
[182] T 195.
SC said that the first contact he had with the accused after the disclosure by WMN was via text message. The accused told him that he had been locked out of his phone and was going to borrow a friend’s phone.[183]
[183] T 196.
SC said he was very proud of his share house but said it is a lot better now. He agreed that he wanted it to be a safe and welcoming environment.[184] He agreed that he took it seriously when a 16-year-old boy came to live with him because he thought it would be the perfect opportunity for him rather than being in a straight house and feeling uncomfortable. It was really important for him that WMN was safe in that house.[185]
[184] T 196.
[185] T 197.
When WMN told him that he had sex with the accused, SC believed him. It made him angry that this had happened under his roof. He was even angrier because he had already told the accused not to sleep with WMN. Despite being angry he said he was able to have a civil conversation with the accused and did not yell at him at any time.[186]
[186] T 197.
SC agreed that it was at least an hour before the accused made an admission. As the conversation had occurred over two years ago, he could not really say if he became frustrated when the accused would not admit what he had done.[187] SC agreed that he said ‘I know it’s true. It was illegal, what you did’ and ‘We need to hear you say it. You need to say it out loud. You need to know what you did was wrong’.[188]It was after this that the accused made the admission.[189]
[187] T 198.
[188] T 199.
[189] T 200.
Throughout the conversation the accused was nervous, uncomfortable and anxious about what was going on. When the accused denied the allegations, SC said to him, ‘Well, we’ve found out otherwise that this isn’t true, that this isn’t so’ and told him he needed to be able to speak to them and tell them.[190] SC said:
We were providing a safe space for him to at least share and open up to us. That was my intention, to be able to exchange honesty.[191]
[190] T 202.
[191] T 202, 9-11.
When the accused denied the allegation, SC did not believe him. He said, ‘I don’t see why anyone would lie about such a thing’.[192]
[192] T 202, 14-15.

I prefer the evidence of SC, corroborated as it was by ZS that it was WMN who suggested that they all go out to dinner together. I accept SC’s evidence that the accused and WMN spent a lot of time together and that the accused was driving him to and from school.
It was clear from SC’s evidence that SC believed WMN when he told him that the accused had had sex with him. SC was the landlord and had permitted a 16-year-old student to live in a share house that was advertised as accommodating what he described as ‘queer’ tenants. I accept his evidence that it was very important to him that WMN felt safe in that house. He had installed CCTV at the front door which notified him every time someone came and went from the house. He said he watched that footage and was able to identify the accused and WMN coming and going together.
I accept his evidence that he was concerned about the prospect of WMN and the accused engaging in sexual activity and that he warned the accused on two occasions not to have sex with WMN. I accept his evidence that the accused told him he would not. In accepting this evidence, I make it clear that simply because I have accepted that SC held those concerns and voiced them to the accused, does not mean that I accept as accurate SC’s opinion that the accused was sexually interested in WMN.
I accept SC’s evidence that WMN told him via text message that he and the accused had had sexual intercourse. I find that SC was very angry when WMN told him that he and the accused had had sexual intercourse. SC said as much. I find that SC contacted the accused and demanded in forceful terms that he return home immediately. I find that the accused acceded to this demand and returned home promptly. I find that SC and AB were present and spoke with the accused. At the time, the accused appeared nervous, scared and anxious.
I find that this conversation occurred on 7 December 2020.
I infer and find that SC’s intention in demanding the accused return home was to secure an admission from the accused that he had had sex with WMN. I infer and find that SC arranged for AB to be present during the conversation to assist in questioning the accused and to secure this admission.
I accept SC’s evidence that the conversation took place over a long period of time. I find that SC told the accused repeatedly that ‘they’ knew that he had had sex with WMN and that the accused had to admit it and had to say it out loud. I find that SC told him that he knew it was true and that what he did was illegal. I find that the accused repeatedly denied having sex with WMN.
I found SC’s evidence that he was having a civil conversation with the accused and did not yell at him unconvincing. I reject as implausible and disingenuous his evidence that he and AB were ‘providing a safe space for him to at least share and open up to us’. I reject SC’s evidence that he ‘wanted to hear both sides’. Before the conversation had even commenced, SC already had no doubt in his mind that the accused had had sex with WMN and that he was a predator and that he needed to resolve the issue.
I find that the conversation with the accused was in the style of an interrogation during which the accused was told repeatedly that he had to admit to having sex with WMN. I find that the accused repeatedly denied the allegation. However, I find that the nature and length of the interrogation was sufficiently oppressive to cause the accused to eventually make an admission to SC regarding his relationship with WMN.
There is no evidence corroborating SC’s account that the accused confessed to having had sex with WMN. There is nothing about the terms of the alleged confession that are esoteric in nature and render it more likely to have been made. It is a confession in the baldest of terms.
Although there is no independent evidence of the accused’s sexual preferences, it is open to infer that the accused did develop a close relationship with WMN over a short period of time. Given the findings I have made about the amount of time that WMN and the accused had been spending together I consider it a reasonable possibility that the accused had developed feelings for WMN. Against the background of the pressure that SC was exerting during his interrogation of the accused, I consider it a reasonable possibility that, as a result, the accused was compelled to admit to having feelings for WMN and said he was in love with him and that the feeling was mutual. It is clear from SC’s evidence that this was something the accused said repeatedly,[217] and which SC construed as the accused trying to justify his sexual relationship with WMN. It is highly likely that such an admission would have been interpreted by SC as an admission of a sexual relationship (given he was already certain that this was the case) and therefore, in SC’s mind, as an admission that sexual intercourse had occurred.
[217] SC gave evidence that the accused continued to say that he and WMN were in love throughout the balance of the conversation after the alleged confession and also repeated this the next day. By contrast, SC’s evidence was that there was a single admission by the accused that ‘yes we had sex’.
SC’s evidence demonstrated a clear bias against the accused. Whilst this is understandable in the context of his unwavering belief that the accused had engaged in sexual intercourse with a minor under his roof, it leaves me with a significant reservation regarding the credibility of his evidence that the accused confessed to having had sex with WMN.
I am unable to exclude the reasonable possibility that SC has deliberately or subconsciously equated the accused’s admission with a confession that he had a sexual relationship with WMN. I am not satisfied beyond reasonable doubt that the accused in fact admitted to having had sex with WMN. An admission by the accused that he was in love with WMN is not a sound basis from which to infer the existence of a sexual relationship.
WMN
Having rejected the evidence of SC that the accused confessed to having had sexual intercourse with WMN, the prosecution case rests upon an acceptance of the credibility and reliability of WMN’s account of each charged act beyond reasonable doubt.
Lack of corroborative evidence
There were aspects of WMN’s evidence for which corroborative evidence was potentially available, had the police investigation been more thorough. I find that the couch was available for forensic examination and testing in 2020 after WMN’s report to police. The carpet in the accused’s bedroom could have been forensically examined and tested. I find that WMN’s mobile telephone was available to be examined and data extracted from it. Call charge records for WMN’s mobile service could also have been obtained. Exhibit P2 is of limited probative value. It is not a complete record of phone calls made and received by WMN. There is no context from which the timing or fact of those calls can be evaluated. There is no evidence of the purpose or content of any relevant phone call.
Whilst I cannot speculate about what further police investigation may have revealed, the net result is that WMN’s allegations are not corroborated by independent or objective evidence.
No esoteric evidence
WMN did not describe anything about the accused’s physical features, including for example whether the accused was or was not circumcised, that could be regarded as esoteric. Indeed, WMN’s account was devoid of any real detail about the accused’s physical appearance despite the nature of the sexual activity alleged.
Assessment of presentation and demeanour
I found WMN to be an intelligent, articulate but unimpressive witness. He was prolix and argumentative at times. His responses in cross-examination were often obfuscatory. On some topics his evidence conflicted with the evidence of other witnesses that I have accepted.[218]
Assessment of explanations for proved prior inconsistent statements
[218] For example, the timing of the disposal of the couch, WMN’s overall behaviour and demeanour whilst living in the share house, the identity of the person who extended the first invitation out to dinner, whether WMN locked his door, whether the statement of 13 January 2023 was the result of a proofing with the prosecutor prior to trial.
A number of prior inconsistent statements were proved during the course of his evidence. I will return to examine them and their significance in more detail shortly, but WMN’s responses when confronted with a prior inconsistent statement (by omission or commission) generally reflected poorly on his credibility. His responses ranged from a denial that he had made the prior inconsistent statement at all,[219] to an assertion that his memory had improved, and he may remember more things in the future, and then to a claim of mind fog or clouded memory, language difficulties, or that the matter omitted was in fact implicitly referred to in the relevant statement.
[219] T 91, 7-15.
I found each of the various explanations offered by WMN for the inconsistencies put to him to be contrived and straining credulity.
At times WMN suggested that his memory had improved over time such that his memory in January 2023 was better than in the weeks after the alleged offending. At one point in evidence WMN claimed that he was stressed, and his mind was foggy but said his mind was clear when he gave his statement 3 days before.
WMN agreed that the painful attempt at anal sex on the beach that was interrupted by a man masturbating was something that stuck pretty clearly in his mind. However, when giving evidence in chief he omitted to mention the man masturbating and said in cross-examination that was because he ‘missed that part’. WMN said the failure to mention at all in his statement of 16 December 2020 the allegation of anal penetration by the accused on Semaphore beach was because he was quite foggy and did not have much memory at the time he gave the statement.
When asked about the order of events on Semaphore beach he said that he would need to read over his statement again. I formed the distinct impression at two points during his evidence that he paused to try and recall what he had said in his statement(s) on the topic about which he was being questioned.[220]
[220] At T 24, line 27 WMN was asked, ‘After you finished dinner what did you do next’. He replied, ‘Sorry, just give me a minute’, after which there was a significant pause before he proceeded to answer the question. At T 41, line 19-23 WMN was describing what the accused was doing with him on Semaphore beach and said, ‘… I guess he said to me that he was horny and that he again said that I was super flirty with him always and he just wanted to do something with me and I agreed at this moment. He then – sorry give me one second’. WMN paused until the prosecutor asked him further questions about the evidence he had just given.
WMN’s evidence regarding the circumstances in which count four occurred was substantially more detailed than the account in his statement dated 16 December 2020. I reject his explanation that his memory was better in January 2023. In evidence WMN said that after he and the accused had ‘sucked each other off’ the accused said he wanted to ‘fuck’ WMN. There is no mention in the statement of 16 December 2020 that the accused said this.
WMN gave evidence that the accused sent him a message via social media asking him if they could do what they did in the car immediately prior to the offending charged in count 4. In his statement of 13 January 2023, he asserted that the accused said this in person whilst sitting on the couch in his bedroom. WMN sought to explain this inconsistency by saying that his memory was clouded at times, and it was hard to distinguish whether he had a conversation in person or text because there were so many conversations.
I treat with considerable circumspection WMN’s assertion of an improvement in his memory, particularly given the proved inconsistencies between his testimony and a statement to police he had given only 3 days prior to giving evidence and his conflicting account of having a clouded or foggy memory at the time of giving evidence.
WMN claimed to have an imperfect command of the English language when confronted with inconsistencies in his sworn evidence,[221] and blamed this on his six-month holiday in Germany or his English being sub-standard. These explanations were not credible. It was my impression that WMN displayed an excellent command of the English language in the witness box and was articulate and well spoken. By way of example, WMN at one point relied upon the placement of a full stop rather than a comma in his statement to explain why it was that there was no inconsistency between it and his sworn evidence.
[221] WMN gave evidence that the accused was behind him when he tried to penetrate his anus on the beach. He explained that ‘behind’ meant between WMN’s legs facing him. WMN said he may have used the wrong word because English had not been his first language for six months. WMN gave evidence that the accused had pulled his own pants down around mid-thigh when he tried to penetrate WMN. In his statement of 13 January 2013 WMN said he was lying on his back with his pants pulled down to his thighs when the accused had anal sex with him. WMN was reminded about his evidence that morning in which he said that the accused took off his pants and sucked him for about two minutes and asked whether his pants were taken off or he had them around his thighs. He said that his English ‘isn’t that great’ and he may have been using the wrong terminology.
It was put to WMN that he had not mentioned in his statement dated 16 December 2020 that he performed oral sex on the accused on the beach. He said he did not remember. He then said it was in his other statements. After being taken to his 13 January 2023 statement he agreed there was no mention of it in there but then said he thought he had mentioned it in his 2021 statement. He was then taken to his 5 June 2022 statement, and it was put to him that he omitted to mention performing oral sex on the accused in that statement. His evidence that the reference in that statement to the accused having ‘oral sex with me’ could be interpreted as mutual oral sex was a further attempt to avoid admitting the inconsistency.
It was put to WMN that he had for the very first time in the witness box said that he had performed oral sex on the accused in the car at Semaphore beach and that the accused had told him via social media that he was horny and wanted to do stuff with WMN. WMN was asked to read all of his statements and after he had done so he was asked if he agreed that he omitted to mention both of these matters in each of those statements. He said that he did not agree.
WMN said that his reference in his statement 13 January 2023 to the accused sending him a horny devil emoji meant that the accused had ‘implied’ via social media that he was horny. Accordingly, WMN was suggesting there was no inconsistency at all between his evidence that the accused had said this via social media and his statements that this was said in person, because the accused had both implied it and said it. WMN then said that the reason he mentioned the horny devil emoji for the first time in his statement of 13 January 2023 was because he had been living overseas, had gained some clarity and memory and was having therapy. I reject his explanation as straining the bounds of credulity.
WMN refused to agree that he had never mentioned in any of his police statements that he had sucked the accused’s penis in the car at Semaphore beach. He suggested that in fact he had referred to this in the statement dated 16 December 2020 because he had said, ‘[CW] sucked me off first, and by that I mean he sucked my dick.’ WMN said that the presence of a full stop rather than a comma between that sentence and the next, in which he described anally penetrating the accused meant that they were ‘two separate ideas.’ In other words, WMN was suggesting that he had impliedly mentioned that he had also sucked the accused’s penis, because of the use of the word ‘first’ in conjunction with a full stop after that sentence. The absurdity of his explanation was highlighted when he said that this full stop was already in the statement when it was typed up for him. Further, no justification was offered with respect to the same omission in the statement of 13 January 2023.
Proved prior inconsistent statements
In his first report to police on 13 December 2020 (Exhibit D3) there was no allegation of any sexual activity occurring on the beach and the narrative in Exhibit D3 suggested that the only sexual activity that did occur, took place in the car. The narrative in Exhibit D3 also contained a positive assertion that there was only one other occasion of sexual intercourse. Taking into account the fact that Exhibit D3 was not provided to WMN for confirmation as to its accuracy and that it was a narrative account of what WMN said, I am nevertheless satisfied that these two prior inconsistent statements have been proved.
I am satisfied that the following proved prior inconsistent statements were on material matters for which there has been no, or no adequate explanation:
1.The omission to mention that there was any sexual activity between WMN and the accused on Semaphore beach in Exhibit D3 or his first statement to police, both made within weeks of the alleged offending.
2.The positive assertion in Exhibit D3 that there were only two occasions of sexual activity with the accused.
3.The omission from the 5 June 2022 statement of any reference to the accused having performed oral sex on the accused following which the accused had anal sex with WMN on Semaphore beach.
4.The omission to mention in any prior statement that WMN had performed oral sex on the accused in the car at Semaphore beach.
5.The omission to mention in any statement that the accused had made a sexual proposition via social media prior to the alleged offending on Semaphore beach.
6.The inconsistency between WMN’s evidence that the accused sent him a message asking if they could do what they did in the car again and his statement dated 13 January 2023 in which he said that the accused had asked him this in person.
7.The omission from his statement of 16 December 2020, WMN that the accused told him he wanted to fuck him after they had given each other oral sex on the couch.
The prior inconsistent statements regarding the allegations comprising the first four counts of unlawful sexual intercourse and the uncharged sexual acts, undermine WMN’s credibility in a material way, as do the implausible explanations given for many of them. I have taken this into account in my evaluation of WMN’s credibility generally.
Other matters affecting WMN’s credibility
It emerged during cross-examination that WMN’s account of what occurred on Semaphore beach has developed since his first report and statement to police, in which no mention of any sexual activity is made, through the various statements to his evidence at trial. I agree with defence counsel that WMN’s version of events has been growing ever since he first attended a police station on 13 December 2020.
WMN appeared to be at pains to paint himself as having been seduced by the accused. He described himself at the time as self-reserved, not super confident and quiet. He painted a picture of the accused grooming him and guilting him into spending time with him.
I reject WMN’s evidence that it was the accused who invited him out to dinner on the first occasion that they dined together. I find that it was WMN who invited the accused, and the others present to dinner, but it was only the accused who accepted the invitation.
The description given by ZS and SC of WMN accords with my impression of him in the witness box as a confident and self-assured young man and I prefer their evidence to that of WMN on this topic. I find that WMN was enthusiastic in his interactions with all members of the household, including the accused and was extroverted, sociable and outgoing.

WMN’s evidence that his door was always locked was contradicted by the evidence of ZS that his door was usually open. WMN’s evidence that he sent a photograph to the accused of an open door because that is where his phone was facing was disingenuous, inconsistent with his assertion that he always locked his door and a further attempt to paint himself as a reluctant participant in sexual activity. I reject his evidence on these topics.
WMN was asked whether he was wearing a condom when he had sex with the accused and he said no, because he was not aware that this was something he needed to do and did not really know what a condom was, other than it was something that men used to stop women getting pregnant. He said this was because he missed sexual education at school due to bullying and in fact was not at school for quite some time. I view with scepticism this explanation, particularly in light of the detailed evidence WMN gave about why the accused would not have realised that he had ejaculated inside him, how he pretended to ejaculate inside the accused and the method by which WMN would physically prepare himself for anal intercourse. From this evidence I infer and find that WMN was sexually experienced at the time of the alleged offending.[222]
[222] In making this finding I have not taken into account the evidence given by WMN in breach of section 34L of the Evidence Act 1929.
Whilst I accept that homosexual sexual activity is not one that requires the use of a condom for contraception purposes, I find it difficult to accept that WMN was, inferentially, totally unaware of the use of condoms to protect against sexually transmitted diseases. I consider it more likely that the question caught him by surprise and having not mentioned the use of condoms at all when describing the anal sexual activity with the accused, he had to formulate a reason for why he did not wear one.
Evaluation and use of complaint evidence
In evaluating WMN’s credibility, I have taken into account my findings regarding the evidence of complaint. I prefer the evidence of ZS regarding the terms of the complaint over that of WMN. I am not satisfied that WMN told ZS that the accused had been buying things for him.
WMN did complain to a person, and at a time, that I would have expected him to complain if the allegations were true. However, the initial complaint was devoid of detail other than an allegation of sexual activity with the accused. The contents of the initial complaint are not capable of demonstrating consistency of account with respect to the allegations made by WMN in evidence other than at the highest level of generality. The elaboration of the complaint does contain an allegation consistent in one aspect with the evidence of WMN regarding the circumstances in which counts five and six are alleged to have occurred.
The complaint evidence does demonstrate a degree of consistency of conduct. There is one aspect of the complaint that is consistent with one detail in WMN’s account of the circumstances of the final occasion of sexual activity, namely the allegation that the accused suggested having sex on the floor. However, this consistency finding does not, in my assessment, diminish, nor can it overcome the cumulative effect of the adverse credibility and reliability findings I have made regarding WMN’s evidence.
Conclusion
The findings that I have made in this matter, and in particular those relating to WMN’s credibility, are such that it is impossible for me to be satisfied beyond a reasonable doubt of the guilt of the accused on any of the six counts charged.
Verdicts
I find the accused not guilty of all charges.