R v DA - [2023] SADC 119

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DA
Criminal Trial by Judge Alone
[2023] SADC 119
Reasons for the Verdict of his Honour Judge Handshin
1 September 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused was charged with one count of maintaining an unlawful sexual relationship with a child, contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA). The complainant was aged between 11 and 12 years at the time of the alleged offending and was the accused’s step-son. The prosecution case was that the accused sexually abused the complainant on eight to 10 occasions between mid 2018 and early 2020. The complainant gave evidence of five particular episodes during which a number of sexual acts were said to have been committed by the accused.
The complainant made a complaint of sexual abuse to his friend in early 2021 and in April 2022 made a further report of abuse to his mother. As a result of the disclosure to his mother, the complainant participated in a prescribed interview shortly thereafter. It was the prosecution case that the complainant’s disclosure to his mother was an elaboration of the initial complaint made in early 2021 and admissible pursuant to s 34M of the Evidence Act 1929 (SA).
The complainant’s evidence of the alleged offending was uncorroborated and was materially inconsistent in multiple respects. The evidence suggested further that the accused may have had limited opportunities to commit at least some of the unlawful sexual acts alleged.
Verdict: Not Guilty.
Criminal Law Consolidation Act 1935 (SA) ss 48, 50, 56, 58, 270A, ; Evidence Act 1929 (SA) ss 12A, 13BA(3), 13BA(5), 13BA(6), 34CB, 34M, 34P; Summary Offences Act 1953 (SA) Division 17; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 23(3), referred to.
R v JJP [2021] SASCA 53; R v Dookheea (2017) 262 CLR 402; Kirkland v The Queen [2021] SASCA 14; R v Haak (2012) 112 SASR 315; R v Murray (1987) 11 NSWLR 12; JGS v The Queen [2020] SASCFC 48; R v T, WA (2014) 118 SASR 382; R v R, PA [2019] SASCFC 19; Davis and Hyland v The Queen (Unreported, Supreme Court of South Australia, 8 September 1995, Judgment No 5250); De Sa v The Queen [2012] SASCFC 22; R v Jones [2018] SASCFC 80; R v P, S [2016] SASCFC 97; R v Maiolo (No 3) [2014] SASCFC 89; R v Landmeter [2015] SASCFC 3; Boyle (a pseudonym) v The Queen [2022] SASCA 50; R v J, JA (2009) 105 SASR 563, considered.

R v DA
[2023] SADC 119
Criminal Jurisdiction

The accused, DA, is charged on Information dated 29 November 2022 with one count of maintaining an unlawful sexual relationship with a child, contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The alleged victim of the offence, SA, was, at all relevant times, the accused’s step-son.
The particulars of the charge are as follows:
Statement of Charges
Offence Details:
Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars
Between the 31^st day of December 2017 and the 1^st day of October 2020 at Elizabeth Vale and Redwood Park in the said State, maintained an unlawful sexual relationship with [SA], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [SA], namely:
(a)Rubbing [SA’s] thighs and buttocks on more than one occasion;
(b)Touching [SA’s] abdomen on more than one occasion;
(c)Asking [SA] to kiss his penis;
(d)Kissing [SA] on more than (sic) occasion;
(e)Touching [SA’s] penis on more than one occasion;
(f)Rubbing his penis against [SA’s] body on more than one occasion;
(g)Attempting to insert his penis into [SA’s] anus;
(h)Causing [SA] to touch [DA’s] genitals; and
(i)Causing [SA] to sit on top of [DA’s] penis.
The accused pleaded not guilty to the charge and elected for trial before a judge sitting without a jury. I now publish my reasons for the verdict that I deliver.
Summary of the prosecution case
Despite the date range pleaded in the Information, it was the prosecution case at trial that the accused committed the particularised unlawful sexual acts between mid 2018 and early 2020, at the family residences at Elizabeth Vale and Redwood Park, where SA then lived with his mother, RA, and the accused.
The first two incidents of alleged abuse were said to have occurred in or around July to September 2018 at Elizabeth Vale. These episodes were described at trial as the ‘first’ and ‘second time’ that the accused allegedly abused the complainant.
In early 2019, the family moved to Redwood Park. It was alleged that between November 2019 and January 2020, SA was abused on three distinct occasions, referred to at trial as ‘the first touch on the penis incident’; ‘the ejaculation incident’ and ‘the kitchen / cereal incident’.
These five discrete episodes which SA gave evidence about occurred, on the prosecution case, in the context of a total of eight to 10 occasions on which SA was sexually abused throughout the particularised period.
SA first complained about the alleged sexual abuse to his friend, AM, in early 2021. Subsequently, on 10 April 2022, SA told his mother of the alleged abuse. The disclosure by SA to RA occurred both in person and by way of a text message exchange (P5 and P6). The prosecution contended that the disclosure to AM was the initial complaint within the meaning of s 34M of the Evidence Act 1929 (SA) (Evidence Act) and the disclosure to RA an elaboration of the initial complaint and admissible as such. It will be necessary for me to address the admissibility of the disclosure to RA as an elaboration, however the text messages were also said to be relevant and admissible on the defence case for the purpose of establishing that SA had told his mother a number of things which were inconsistent with his evidence.
On 15 April 2022 SA participated in a ‘prescribed interview’ with a police officer, in accordance with Division 17 of the Summary Offences Act 1953 (SA) (the interview). The interview was played at trial, without objection, as the evidence in chief of SA pursuant to s 13BA(3) of the Evidence Act.
Additionally, and on the application of the parties, SA gave supplementary evidence in chief and was cross examined in accordance with s 13BA(5) of the Evidence Act.
The accused neither gave nor called evidence.
The primary forensic contest between the parties at trial was whether the complainant was a credible and reliable witness and, whether I could be satisfied beyond reasonable doubt of the accused’s guilt on the basis of his uncorroborated evidence.
General directions
Before turning to the evidence, I remind myself of some fundamental matters.
The offence of maintaining an unlawful sexual relationship with a child consists of the following elements, each of which must be proved by the prosecution beyond reasonable doubt:
1. The accused knowingly maintained a relationship with SA during the period in which the particularised unlawful sexual acts occurred. A ‘relationship’ for the purpose of s 50 must be comprised of more than isolated acts to which the accused and complainant are parties or otherwise involved. There must be some continuity in the relative positions of the accused and complainant such as, for example, being members of a family unit over a period of time. The characteristics of the association between the accused and the complainant must be considered. The accused must knowingly maintain the relationship with the complainant throughout the charged period.
2. The accused was an adult during the period in which the particularised unlawful sexual acts occurred.
3. The complainant, SA, was a child under the age of 17 during the period in which the particularised unlawful sexual acts occurred.
4. The accused engaged in an unlawful sexual relationship with the complainant by committing two or more unlawful sexual acts with or towards the complainant in the course of the relationship. ‘Unlawful sexual act’ is defined by s 50(12) of the CLCA as any act that constitutes or would constitute a sexual offence if the time and place at which the act took place were sufficiently particularised. ‘Sexual offence’ is in turn defined to mean, relevantly, an offence against Division 11 of the CLCA.
Elements and Particulars
There was no dispute at trial as to the first three elements of the offence. It was common to both the prosecution and the defence case that the accused was SA’s stepfather throughout the particularised period and that he knowingly maintained this relationship with SA. Similarly, it was uncontentious that the accused, who was born on 1 June 1984, was an adult at all material times and the complainant was under the age of 17 years throughout the charged period.
I am satisfied beyond reasonable doubt of the first, second and third elements of the offence.
The fourth element of the charge was the focus of the dispute at trial.
In R v JJP [2021] SASCA 53 at [157], Doyle JA, with whom Kelly P agreed, said that the elements of a s 50 charge include the elements of the sexual offences comprised by the ‘unlawful sexual acts’.
With one exception, the prosecutor did not expressly identify the sexual offences that rendered the alleged acts ‘unlawful sexual acts’ within the meaning of s 50(12).
I proceed on the basis that:
·particulars (a), (b), (d), (e) and (f) concern acts said to constitute the sexual offence of indecent assault, contrary to s 56 of the CLCA. Accordingly, before I could rely on any of the particularised acts as constituting an ‘unlawful sexual act’, I would need to be satisfied that the act had the character of an indecent assault within the meaning of s 56.
·particulars (c), (h) and (i) relate to acts said to constitute the sexual offence of an act of gross indecency, contrary to s 58 of the CLCA. Similarly, before I could rely on any of the particularised acts as constituting an ‘unlawful sexual act’, I would need to be satisfied that the act was an act of gross indecency within the meaning of s 58.
The exception to which I have referred concerned particular (g), which is linked to the episode referred to above as ‘the first touch on the penis’. As will be seen, SA alleged in his prescribed interview that in the course of that episode the accused attempted to penetrate his anus. The prosecutor contended that the act of attempted anal penetration constituted the sexual offence of ‘attempted rape’,[1] contrary to ss 48 and 270A of the CLCA. Accordingly, before I could rely on the attempted anal penetration as an ‘unlawful sexual act’, I would need to be satisfied beyond reasonable doubt that the accused, without consent and knowing or being recklessly indifferent to the absence of consent, took steps that were more than merely preparatory to inserting his penis into SA’s anus.
[1] T174-175.
Burden and standard of proof
It is of course the prosecution that bears the onus of proving the guilt of the accused and nothing short of proof beyond reasonable doubt will suffice. The accused is not required to prove anything. He is presumed innocent of the charged offence unless and until the prosecution proves each element of the offence beyond reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt or to establish that the accused is probably guilty of the offence charged. I bear in mind the remarks of the High Court in R v Dookheea (2017) 262 CLR 402 at [41] that:
being satisfied of guilt beyond reasonable doubt does not simply mean concluding that the accused may have committed the offence charged or even that it is more likely than not that the accused committed the offence charged. What is required is a much higher standard of satisfaction, the highest known to the law: proof beyond reasonable doubt.
The accused exercised his right not to give evidence and I do not draw any inference adverse to him, or the case he puts forward, from his exercise of that right. His silence is not a make weight and cannot fill any gaps or shortcomings in the prosecution case.
In considering the evidence and whether I am satisfied to the criminal standard of the elements of the offence, I have brought an open and unprejudiced mind to bear. I remind myself of the importance of making a decision without sympathy, prejudice or fear.
Special arrangements and SA’s interview with police
SA and RA gave evidence with various special arrangements in place. I have not allowed the fact of these special arrangements to influence the weight that I give to their evidence nor have I drawn any inference adverse to the accused from the fact that these arrangements were in place.
As I have noted, the prosecution played the audio-visual record of SA’s interview with police as his evidence in chief. Although a judge sitting without a jury is not required to direct him or herself in accordance with s 13BA(6) of the Evidence Act when evidence is admitted in this form,[2] I have reminded myself that s 13BA(3) of the Evidence Act allows for evidence in this form to be admitted. I have not drawn any inference adverse to the accused from the admission of evidence in this form, nor have I allowed the form of the evidence to influence the weight I give to it.
[2] Kirkland v The Queen [2021] SASCA 14, [55]-[63].
Scrutinising the complainant’s evidence
In his final address, counsel for the accused submitted that I should give myself a direction in the terms of s 12A of the Evidence Act, namely, that it would be unsafe to convict on the uncorroborated evidence of SA. Mr Morrison argued that there were cogent reasons in this case to doubt the reliability of SA’s evidence and that, accordingly, such a direction was warranted. Whilst s 12A does not apply in trials before a judge sitting alone,[3] I consider it is appropriate in the circumstances of this case to scrutinise SA’s evidence with great care[4] in light of the number and nature of inconsistencies established on the evidence and to which I will refer in due course.
[3] R v Haak (2012) 112 SASR 315, [38].
[4] R v Murray (1987) 11 NSWLR 12, 19.
Forensic disadvantage
Mr Morrison also urged me to approach my assessment of the prosecution case on the basis that the accused has suffered a significant forensic disadvantage on account of the passage of time between the alleged abuse and the trial. Mr Morrison submitted that the accused had been prejudiced in respect of ‘memory [and the] inability to marshal clear evidence of the movements of his life’. As I understand it, the point being made by Mr Morrison was that the effluxion of time between the alleged commission of the unlawful sexual acts between 2018 and early 2020 and the trial of the charge in 2023, had put the accused at a disadvantage in testing and gathering evidence capable of meeting various aspects of the complainant’s account concerning when certain events were alleged to have occurred.
Whilst s 34CB of the Evidence Act has no application to trials before a judge sitting without a jury,[5] the principles enshrined in s 34CB emanate from the common law’s recognition of the impact of delay on an accused’s ability to test and challenge a prosecution case and to marshal evidence relevant to his or her defence of a criminal charge. It will be appropriate for a judge sitting without a jury to bring to bear these principles in evaluating whether the prosecution has met its burden of proof whenever it is necessary to avoid a perceptible risk of a miscarriage of justice.
[5] JGS v The Queen [2020] SASCFC 48, [146]; R v T, WA (2014) 118 SASR 382, [21]-[22]; R v R, PA [2019] SASCFC 19, [85].
In the circumstances of this case, the delay between the allegations and the trial was not particularly lengthy and the accused was in fact able to put on evidence of his movements and employment commitments between 2018 and early 2020, by way of cross examination of SA, RA and the tender of employment records. This evidence was said to demonstrate that the accused’s opportunity to commit the unlawful sexual acts described by SA was more limited than the prosecution case suggested.
Nonetheless, I have carefully considered the impact of the delay between the alleged commission of the unlawful sexual acts and the trial of the charge, and the attendant disadvantage it has occasioned the accused in deciding whether I am satisfied beyond reasonable doubt of the accused’s guilt.
Permissible use of the text messages and inconsistencies more generally
I have earlier mentioned that screen shots of a text message exchange between SA and RA on 10 April 2022 were admitted. The text messages, which are out of court statements of SA and RA, are not admissible as evidence of the truth of the matters discussed and cannot be used for the purpose of supporting or buttressing the evidence of SA or RA.
For the reasons I will develop below, I am not satisfied that the disclosure made to RA before and in the text message exchange is admissible as an elaboration of the initial complaint to AM. Accordingly, I have not used the text messages as evidence of consistency of SA’s conduct or as evidence of how the allegations came to light.
The only forensic use to which the text messages can therefore be put is to establish inconsistencies between the complainant’s evidence and previous out of court statements. In this respect, the text messages do not stand alone. Later in these reasons I will address the asserted inconsistencies between the complainant’s oral evidence and other statements he made to the police, both as part of his interview and otherwise, and to the prosecutor.
In assessing the significance of these inconsistencies, I bear in mind the following observations made in Davis and Hyland v The Queen (Unreported, Supreme Court of South Australia, Doyle CJ, Prior and Debelle JJ, 8 September 1995, Judgment No 5250) and endorsed more recently in De Sa v The Queen [2021] SASCFC 22 at [62]:
In a case where credibility was crucial, the jury had to consider whether they were convinced about the truth of what the woman was then telling them against any inconsistencies apparent to them in what they were satisfied she had said on other occasions. It was not necessary to direct the jury to treat the woman's evidence as unreliable in light of any established inconsistencies. It was necessary to have the jury consider what reliance they were prepared to place upon her evidence given in the witness box against such inconsistencies as they found made out against previous statements.
The significance of an inconsistency or inconsistencies is / are to be considered individually and cumulatively, having regard to the nature of the inconsistency / inconsistencies, their materiality and any explanation for the inconsistency / inconsistencies.
Background
SA was born on 11 May 2007. He was 11 and 12 years old at the time of the alleged offending. Throughout the relevant period, SA lived with his mother and the accused – his stepfather.
SA’s mother, RA, and his biological father, separated a short time after SA’s birth.
RA met the accused in person during a trip to Turkey in 2014. Before then, she had been speaking with the accused via Skype.
RA and the accused married in April 2016 and thereafter the accused moved in with RA and SA, who were then living at Glen Osmond, in the eastern suburbs of Adelaide. I will refer to the accused, RA and SA collectively as ‘the family’.
The relationship between SA and the accused developed slowly after the accused moved into the Glen Osmond property. It appears as though the relationship was, at first, reasonably harmonious. SA and the accused bonded over their shared interest in video games. Over time, SA said that he began to trust the accused and enjoyed spending time with him.
Move to Elizabeth Vale

In late 2017, RA purchased a property at Elizabeth Vale and shortly thereafter, the family left the Glen Osmond property and moved to Elizabeth Vale.
By the time of, or within a short time after moving to Elizabeth Vale, the relationship between SA and the accused deteriorated. There was no overt hostility between them but their relationship became distant. SA was resistant to the accused’s involvement in any aspect of his life and spent much of his time in his bedroom playing video games by himself. The change in the relationship appears to have preceded the alleged offending by the accused.
When the family moved to Elizabeth Vale, the household dynamic changed at another level. SA described stress within the household about finances and said he interacted with the accused less than at Glen Osmond.
SA said his relationship with the accused changed further in that the accused ‘started being more handsy with me’. He would sometimes grab SA by the shoulders or caress his thighs. The accused would tell SA to be quiet and not to tell anyone when he was doing these things. SA felt intimidated and unsafe. SA said this change occurred within a few months of moving to Elizabeth Vale.
In cross examination, SA agreed that from the time they moved to Elizabeth Vale, he did not have much to do with the accused.
RA said that within a few months of the family moving to Elizabeth Vale, the relationship between SA and the accused had observably changed and become ‘distant’. She agreed in cross examination that she had told the police shortly before trial that she made this observation when they first started living at Elizabeth Vale but maintained in her evidence that it may have taken her ‘two or three months to realise that’.
RA gave evidence about her work commitments when living at Elizabeth Vale. She said that she worked five days a week (four weekdays and one day of the weekend) from around 4am until 4pm. Sometimes she would finish later. Due to her early work starts, RA was unable to take SA to and collect him from school. She relied on the accused in this respect.
In her evidence in chief, RA said the accused did not work during their time at Elizabeth Vale. However, in cross examination, RA agreed that the accused worked at a lettuce farm and a fish farm throughout this period. RA said further that she would drive the accused to and from work as he did not drive at that time. RA agreed that on the days the accused worked at the lettuce farm, they would leave early in the morning and sometimes not get home until close to ‘dinner time’. The accused worked similar hours and days when employed at the fish farm. Again, RA was responsible for getting the accused to and from work.
RA said that the accused did not hold down a job for longer than six months, but when he was working RA did not work and when RA was working the accused did not work. Accordingly, there was a period of time at Elizabeth Vale when the accused was working from early morning until late afternoon / early evening and was dependent on RA for transport to and from work. Throughout this period, RA was not working. It is not possible on the evidence to ascertain the periods in 2018 when the accused was working.
The allegations of sexual abuse at Elizabeth Vale
I turn now to the chronology and detail of the unlawful sexual acts said to have taken place whilst the family lived at Elizabeth Vale.
First time – July / September 2018 / 2019 (Particulars (a) and (b))
In his interview, SA said that the first time the accused engaged in sexually inappropriate conduct with him was at the Elizabeth Vale premises in or around July / September in 2018 / 2019 and after a period of school holidays.
The accused asked SA into his room to assist him with a video game. SA obliged. Once in the bedroom, the accused told SA to lay down next to him on the bed, watch was happening on the game and to try and help the accused. He put his hands on SA’s thighs and was occasionally squeezing them. SA described this as the accused ‘caressing’ his thighs. He also put his hands on SA’s stomach, arms, shoulders and back.
Throughout this incident, SA said things from time to time like ‘I don’t feel comfy’ or ‘please stop’, to which the accused would respond with ‘be quiet’, ‘don’t tell your mother’. In his interview, SA said the accused threatened to hurt his mother or his pets.
According to SA, this episode went on for around an hour. RA was at work at the time.
In his supplementary evidence in chief, SA said that he was in Year 6 when this incident occurred. It was an agreed fact that SA was in Year 6 in 2018.
In the text messages that passed between SA and RA on 10 April 2022, the following exchange took place about the ‘first time’ that SA alleged the accused sexually abused him:[6]
[6] Messages from RA appearing aligned to the right and responses from SA aligned to the left
Sun, 10 Apr, 6:50 pm
When is the first time?
2019 maybe
Month
i think july
Where was I?
at work
factory work
What were you doing?
playing games or eating food
Be specific
In your room
In the kitchen
in my room playing games
He came to your room
he called me to his room
And
Then he started touching me, and kissing me telling me to do stuff
Kissing you where?
on my face
he asked me to kiss his you know
but I didn’t
And
Is this the first time
that was the first time yes
No force
a little
What do you mean?
Collaborate
he grabbed me and moved me to the bed but gently
Did you say No at any stage
i tried to
he didnt listen
So he put his penis from your back
he tried
i ran away from him
And?
he left it for a couple of weeks
and tried to rape me again[7].
[7] Exhibit P5, pp 1-3.
The prosecutor argued that despite the rather intractable language used this conversation did not in fact concern ‘the first time’ that anything happened between the accused and SA but, rather, what was described at trial as the first touch on the penis incident. The prosecutor supported that argument by reference to the disclosure to RA occurring at the Redwood Park address and the subject matter of the texts being, at least in part, consistent with the three discrete episodes alleged to have occurred at Redwood Park.
I do not accept this submission. Viewed in the context of SA’s interview, in which he described the ‘first time’ as occurring around July / September 2018 / 2019 and the ‘second time’ as taking place a couple of weeks after the first, the messages must be read as purporting to disclose what happened on the first time anything happened between the accused and SA. That is the question that was asked of him and that is what he purported to address in his response.
At no stage – either in his interview or in his evidence – has it been suggested by SA that the first touch on the penis incident occurred in July 2019. SA has consistently described that episode as taking place either in November 2019 or the 2019/2020 summer holidays.
As will be seen, it follows, in my view, that when SA went on in the text message exchange to refer to the ‘second’ and ‘third times’ that something happened, he was purporting to summarise events that he then remembered as occurring on the second and third occasions of alleged abuse.
I pause here to note that if, as the prosecutor submitted, this exchange was indeed referable to ‘the first touch on the penis’, it is significant that no such allegation was advanced by SA in the messages. Equally, if the exchange concerned the first touch on the penis incident, it is curious that when asked to detail the first time, SA in fact detailed what, on his evidence, was the third discrete incident he could recall. Moreover, and as I have adverted to above, if SA was purporting to describe the first time the accused touched him on the penis, it is curious that the message refers to July 2019 when that time frame has not otherwise been linked with the alleged commission of the first touch on the penis incident.
On the premise that these messages related to the ‘first time’, a number of aspects of the exchange should be highlighted:
·Contrary to his evidence in chief, SA told RA that the ‘first time’ something happened was in July 2019. This was consistent in part with what SA said in the interview but inconsistent with SA’s supplementary evidence that the first incident occurred when he was in Year 6 at school, which was 2018.
·SA told his mother that the accused was ‘kissing’ him and ‘telling me to do stuff’ and told SA to ‘kiss his you know’, in the first incident which would seem to reference a request that SA kiss the accused’s penis. SA did not suggest in his interview or his evidence in chief that the accused had kissed him, told SA to ‘do stuff’ to the accused or to kiss the accused on the ‘you know’ during the ‘first time’.
·In answer to an inquiry from RA ‘so he put his penis from your back’, SA wrote ‘he tried’ and ‘I ran away from him’ and ‘he left it for a couple of weeks…and tried to rape me again’. SA agreed in cross examination that his mother may have been asking him whether the accused had put his penis in SA’s backside. SA’s response - that the accused had ‘tried’ - suggests SA was endeavouring to convey that the accused tried to have anal sex with him on this first occasion but was unsuccessful. No such allegation was advanced in SA’s interview or his evidence in chief in relation to the ‘first time’.
Second time – July / September 2018 / 2019 (Particulars (a), (d) and (h))
Returning to the chronology of events, SA said in his interview that a week or two later, the second incident took place after he returned home from school one afternoon. RA was not at home. Whilst SA was attending to his homework and playing games in his bedroom, the accused summoned SA to the master bedroom.
Again, SA obliged. On this occasion, SA described the accused as engaging with him more intimately. SA said the accused put his arms around him and kissed his neck and cheek. The accused told SA to ‘relax’ and ‘stop moving so much’.
The accused told SA to put his hands on and caress him and the accused did the same to SA. The accused grabbed SA’s thighs or back and rubbed them. He also put his hands on SA’s bottom and squeezed or rubbed the cheeks of his bottom.
In his interview, SA said that the accused ‘moved my hand for [sic] kind of forcibly and into like his genital area…and I kind of moved my arm back coz I didn’t really want to do that’. The accused moved SA’s hand again and kept it where he wanted it, on the outside of his clothing. If SA moved too much or attempted to get up, the accused would pull him back and not allow him to leave.
SA said that throughout this episode he told the accused ‘please stop’ and ‘I don’t feel safe doing this’. In his interview, SA said the accused responded ‘keep your mouth shut’; ‘don’t try to move so much’; ‘just relax’. In his evidence in chief, SA added that the accused said ‘don’t tell your mum. Don’t say anything to anyone about this’.
The incident appears to have concluded when RA returned home from work and the accused told SA to go back to his bedroom.
SA said he did not tell RA what happened because, at the time, his relationship with his mother was not the best and he was concerned that she would be judgmental.
The text message exchange between SA and RA touched on this ‘second’ incident. The messages indicate a transition from discussion about the ‘first time’ to the next alleged occurrence, which is subsequently referred to by SA as the ‘second time’:
he left it for a couple of weeks
and tried to rape me again
When I get back from work…why did not tell me
If you told me then things will be different
Why? Will always going to ask you why you did not tell me
i thought u would judge me and not love me
What? This is not your fault [SA] ? You are a miner and he is adult
When is the second time and where..
are u gonna ask me about everytime
because i don’t remember all of them
How many [SA] ?
[SA]
i’d say around 8-9 from 2019 till about a month before you kicked him out
9 times [SA]
Tell me about the second time..
i’ve told u abt one
i can’t keep talking abt each other
The police will ask about all the small details
So talk
When is the second time and where and how far
it was in his bedroom again, maybe a week or two after
So he called you
Or he grab you to his room
Talk to me..
he called me
And
i think you know
i don’t wanna explain
No
You need to explain
No judgement OK
no
it’s embarrassing and I’d rather not talk abt it
I know it’s extremely not comfortable to talk about it but in some stage you will have to
So start talk cause p need to record this please.
So the second time
no
not now
i’m not ready
Now [SA] now..
Don’t let me come to the house… we have an agreement, so honer it.
he tried to touch me and rub my penis, then he tried kissing me and i stopped it
Why did you go to his room when he call d you
because he asked for help with facebook
I see
And how far he went with you this time
what i wrote
How far he went with you
You slept in the bed
i told u
what i wrote
The above is the first time
What about the second time?
So this start in July 2019 till September 2019
Because I got him the job in September that year
he tried to touch me and rub my penis, then he tried kissing me and i stopped it
this was the second time
So you stopped him for the second time
yes i did
Ok
When is the third time[8]
[8] Exhibit P5, pp 4-9.
The text messages concerning the ‘second time’ give rise to a number of issues:
·The messages suggest that the accused tried to rub SA’s penis on this occasion. SA did not suggest in his interview or evidence that the second incident involved an attempt by the accused to rub his penis.
·The messages made no reference to the accused forcibly placing SA’s hand on his genitals.
It was established in cross examination that during a proofing session on Thursday, 15 June 2023, SA had told the prosecutor that he thought this incident had occurred at Redwood Park.
SA also agreed in cross examination that during the time the family lived at Elizabeth Vale the accused worked at a lettuce farm at Virginia. SA agreed that the accused sometimes worked six days a week, starting early in the morning and finishing after SA returned home from school.
The bed
Common to SA’s account of the two incidents described above was that they occurred on the bed in the master bedroom, which SA had said in his prescribed interview was a queen sized bed.
In cross examination, it was put to SA that when the family moved to Elizabeth Vale, the bed from the master bedroom at Glen Osmond could not be accommodated in the master bedroom at Elizabeth Vale and was not set up. SA rejected this suggestion and maintained that a queen sized bed was in the master bedroom at Elizabeth Vale.
RA gave evidence that the bed used in the master bedroom at Glen Osmond was too big for the Elizabeth Vale property and was not relocated. However, RA said that she purchased another queen sized bed which was used at Elizabeth Vale. In this respect, RA’s evidence supported the evidence of SA that there was a queen sized bed in the master bedroom at Elizabeth Vale.
Move to Redwood Park
On 19 February 2019, RA and the accused signed a 12 month lease for a property at Redwood Park (P8).
SA said in his evidence in chief that by the time of the move to Redwood Park, he felt much less comfortable with the accused and did not want to be around him as much as previously. SA said that the relationship between the accused and RA had further deteriorated.
SA agreed in cross examination that the accused continued to work after the move to Redwood Park, sometimes up to six days a week, from early morning through to early evening.
After the move to Redwood Park, SA considered his relationship with his mother had improved but not to the point that he trusted her enough to disclose what had happened to him. Contrastingly, RA considered she had a close relationship with SA throughout this time and that he would share things with her.
SA continued to visit his grandparents every second weekend during the time the family lived at Redwood Park.
RA continued working whilst living at Redwood Park. Although working a different job, her hours were similar to those she kept whilst living at Elizabeth Vale. RA said that from time to time she would finish work at 2 or 3pm, which gave her an opportunity to collect SA from school.
In her evidence in chief, RA said she tried to find the accused work when they were living at Redwood Park and that the accused in fact obtained work at a herb farm. RA would take the accused to and from work. His hours of work varied. Sometimes he would commence work at 6 or 7am; sometimes he would start work at 3am.
In cross examination, RA agreed that the accused also worked at the fish farm to which I have earlier referred after the move to Redwood Park. When working at the herb farm, the accused would generally finish work around 2-3pm.
RA said that whilst the accused would have been alone with SA at times in 2019, RA was not working in 2020 and was ‘…24 hours in there, you know, around [SA]’.
The first touch on the penis incident – November 2019 – January 2020 (Particulars (c), (e), (f), (g) and (i))
SA gave evidence of the first occasion on which he alleged the accused touched his penis which he said occurred in the context of the accused ‘trying to be more intimate’ with him.
In his interview with police, SA initially said that this incident occurred at around 10am on a day in November 2019. Later in his interview, he said he thought the incident occurred around the school summer holidays which ran from 10 December 2019 to 28 January 2020. He identified the timing of the incident on account of he and the accused being ‘sweaty’.
SA said the incident occurred in the accused’s bedroom. He said the accused was ‘having me sit on top of him and like kiss him and stuff. And at one point he tried to make out with me but I didn’t like do anything with it cos I just didn’t want to’.
SA described the accused pushing him back towards his penis and rocking him back and forth. The accused then removed his pants but kept his underwear on. However he removed SA’s pants and underwear completely. SA said ‘I was naked 100%’.
The accused began to rub his penis against SA’s thighs and bottom. He then put his hand on SA’s penis and began touching it.
The accused subsequently removed his own underwear and asked SA to rub his penis.
Although the chronology is not entirely clear, at one point the accused put SA onto his side and positioned himself behind SA. The accused ‘tried to put his penis inside’ SA but SA did not allow him to do so. At the time, SA was facing the door to the bedroom. He said that the accused ‘spread my arse…then he started to try to put it there…And then I kind of just tensed up my butt. And then he kind of said “‘relax a little’ and stuff or ‘I’ll tell your mum’”.
SA said he could feel at this time that the accused did not have underwear on and he felt the tip of the accused’s penis touching his ‘butt cheek and then it kind of like swerved towards the middle’ and made contact with the entrance of his anus but did not penetrate.
SA stood up and said ‘I don’t want to do this anymore’, to which the accused replied ‘You should just do this, just don’t tell your mum and stuff or I’ll like kill her or something and stuff. Like he just kept doing empty threats.’
SA then sat down and the accused asked him to kiss his penis. SA refused and left the bedroom.
Thereafter, SA left the house and caught up with a friend. He returned home later that afternoon.
This incident was revisited in further examination in chief and SA was asked to identify when certain acts occurred. The following exchange took place:
QWhen did he take his underwear off during that incident.
ADuring the first time he touched my penis incident?
QYes.
AIt was a little bit after he touched it, he told me to take my underwear off and I didn't and he took his off and he told me to rub his penis.
QAnd was that before or after you were laying on your side.
AThat was after.[9]
[9] T 31.

The oral evidence of SA suggests that:
·the accused told SA to remove SA’s underwear but SA did not comply; and
·the accused removed his (that is, the accused’s) underwear after he had positioned SA on his side; and
·the accused told SA to rub his penis after SA had been positioned on his side.
These features of SA’s evidence were different to the account he provided in his prescribed interview.
In cross examination, SA agreed that:
·during a proofing session with the prosecution on Thursday, 15 June 2023, he said that the accused did not try to penetrate his anus on this occasion.
·during a proofing session with the prosecution on Thursday, 15 June 2023, he said that this incident occurred in 2018 when he was in Year 6. I pause here to note that this would have meant that the incident occurred at Elizabeth Vale and not at Redwood Park.
SA was not re-examined on what he meant when he told the prosecutor, before trial, that the accused did not try to penetrate his anus on this occasion, nor was he asked whether he adhered to the allegation of attempted penetration which he made in his prescribed interview. SA did say that he was ‘exhausted’ during the proofing from having to talk about his allegations.
Incident involving ejaculation (Particular (e))
Towards the end of his prescribed interview, SA was asked if he could recall any other incidents. He described an occasion when the accused was ‘rubbing our penises together…and at that point he made me ejaculate with him’. SA added that the accused ‘put them [penises] both together and then started putting his hands on both of them and rubbing’. This went on for 4-5 minutes.
SA said he did not think the accused ejaculated.
When asked to explain how this incident came about, SA said he and the accused were sitting ‘in the bed’ when the accused, without warning, removed SA’s pants and ‘started rubbing me’. SA was naked and the accused was wearing just a singlet and underwear which he eventually removed.
In his evidence in chief, SA said that both he and the accused had been laying on the bed when the accused told him to ‘lean more towards him and then he put both of our penises together and rubbed them together’.
SA said this incident took place around a month and a half after the accused first touched his penis and that it occurred close to the middle of the day on a weekend. SA said he was in Year 7 at the time (2019), although he was unable to supply much additional detail. On the timeline provided by SA, this incident is alleged to have occurred after the episode described as the first time that the accused touched SA on the penis and before the kitchen / cereal episode which is addressed below and which was identified by SA as the last time that anything inappropriate occurred.
Under cross examination, SA agreed that in his interview he said the incident took place whilst they were sitting in the bed.
Kitchen / Cereal incident – January 2020 (Particulars (a), (e) and (f))
SA described an incident taking place in the kitchen on one of the accused’s ‘last days’ at Redwood Park. In his interview SA subsequently referenced this incident when asked when the last time was that something happened with the accused.
SA was making a bowl of cereal when the accused approached him from behind and began ‘rubbing my butt and stuff’. SA said the accused tried to put his penis in between his thighs and was trying to rub SA’s penis as well. Both had clothes on at this time. SA was wearing pyjama shorts and a top and the accused was wearing a short sleeve top and pants.
SA said the accused ‘started putting his hands down here – and like kind of moving his way down there – and then he pressed up like pretty hard against me and then pushing me into the counter…And then he tried to put his penis between my thighs and I just kind of left the bowl of cereal and walked back to my room’.
SA said that he still had his clothes on at this point.
When asked by the interviewer why he thought the accused was trying to put his penis between SA’s thighs, SA said:
I think he was trying to like anally rape me but he didn’t really cos we have a bit [sic] block, like a big window facing the street and that was wide open so I don’t think he wanted to take his clothes off too much because he thought it’d look weird and stuff’.
SA said he could feel that the accused had an erection when he was behind him as he ‘felt like the bulge against my arse and stuff’.
The accused put his hand over SA’s mouth and told him ‘shh’ and to ‘shut the fuck up’.
SA said further that the accused ‘tried to get into my pants and stuff, like he did I think at one point he did do it. But at that point I kind of snapped away from him…like that was the point I snapped away from him and I left my bowl of cereal.’
SA clarified that the accused touched his penis after manipulating his hand inside SA’s pants. SA said this went on for around 30 seconds before he ‘snapped off’ and retreated to his bedroom, closing the door.
The accused followed, knocking on the bedroom door and imploring SA not to tell his mother and to ‘shut up and play your games’.
According to SA, this incident occurred at around 1pm when RA was out of the house shopping.
In his evidence in chief, SA was asked to explain why he thought the accused was trying to put his penis in between his thighs. He said that ‘I could feel his tip on my thigh…I could feel it skin on skin.’
SA said there had been one or two earlier occasions on which the accused had touched his penis.
SA said that this incident occurred ‘a couple of months’ after the occasion on which the accused first touched his penis.
In cross examination, SA said that there was only ever one incident that took place in the kitchen.
He confirmed that during that incident he felt ‘skin on skin’ contact because the accused had pulled SA’s pants down and SA detected contact between the accused’s genitals and his backside.
SA agreed that:
·the first time that he mentioned that his pants had been removed during this incident was when he provided a post proofing statement to the investigator on Friday, 16 June 2023.
·the first time he mentioned feeling skin on skin contact with the tip of the accused’s penis touching his bottom was on Friday, 16 June 2023.
·he said, in the prescribed interview, that he ‘snapped away’ when the accused put his hand down his pants but he told police on Friday, 16 June 2023 that it was when he felt the accused’s genitals against his bottom that he ‘snapped away’.
·he told the prosecutor during a proofing session on Thursday, 15 June 2023 that the accused actually tried to insert his penis into SA’s anus during this incident.
Before moving on, I again return to the text messages, P5. I have earlier referred to what was said in those messages about the ‘first’ and ‘second’ incidents. After that discussion, RA asked SA about the ‘third time’ and where it occurred. SA responded ‘probably the kitchen’. SA added that he was making food and the accused came up behind him and tried to touch him. SA said he left the food until the accused left the kitchen.
As the cross examination to which I have referred to made clear, SA only alleged one incident occurring in the kitchen. It may be that this was the incident SA was describing in the text messages. However, in his interview and evidence in chief, SA did not describe the kitchen / cereal incident as the third incident. Rather, it was described as the last occasion on which anything occurred. The ‘third’ incident which SA gave evidence about was the incident I have referred to as ‘the first touch on the penis’. Counsel for the prosecution said that this cross over supported the hypothesis that the ‘three’ incidents referred to in the text messages were the three incidents that took place at Redwood Park. As will be seen, in his address, counsel for the accused said that what was described as the ‘third incident’ in the text messages must have been another, otherwise unidentified episode.
I have already said that I reject the prosecutor’s contention that the text messages can be read as if reference to the ‘first time’ something happened was in fact a reference to the first touch on the penis incident.
Other incidents (Particulars (d) and (e))
In addition to the particularised incidents, SA said that inappropriate touching or kissing occurred on another eight to 10 occasions over a two year period.
In his interview, SA said that on five such occasions, the accused ‘was just trying to get closer with me – kissing and touching me’ and on the other three to five occasions, the accused was ‘touching more intimately and trying to get me to ejaculate and stuff’. It would seem to follow from SA’s description of these latter incidents that they occurred sometime after the first touch on the penis incident but before the kitchen / cereal incident which, as I have said, was described as the last occasion on which anything sexual occurred. When in that period they are said to have occurred was not the subject of any evidence.
In supplementary evidence in chief, SA said that the ‘kissing’ and ‘touching’ to which he referred in his interview involved the accused kissing his neck, cheek, grabbing his shoulders, being ‘very touchy’ and ‘playful’ and treating SA differently than he did when RA was around. SA added that ‘maybe he would touch me sensually on my legs’ and ‘sometimes he would try to put his hands on my penis, but I wouldn’t let him’.
With reference to the occasions on which the touching was more intimate, SA said the accused would ‘put his hands under my clothes and would ask me to do the same’ and ‘would rub my penis and he would rub himself at the same time’.
Language issues
Throughout the interview, and in the course of his oral evidence, SA said that during the episodes to which I have referred the accused made various comments to him. These comments included directions about what SA was to do, or not do; threats to hurt RA or pets; and on some occasions, included essentially a request that SA submit to the conduct the accused was perpetrating.
However, in his interview and again in his oral evidence, SA said that the accused did not speak English much or ‘very well’. When asked in cross examination if he (SA) spoke Arabic, SA said ‘I can speak Arabic, and I could back then as well’. This was a curious answer given that, in his interview, SA had told the police that ‘I didn’t really talk to him [the accused] cos I don’t really know too much Arabic’.
RA said that she was intent on finding the accused employment so that he could work on his English skills. No further detail on this topic was elicited from RA.
It is difficult to determine what to make of the apparent language barriers between SA and the accused and the limitations of the accused’s English language skills. The issue was not explored in the evidence. Nonetheless, there are some comments that SA claims to have been made by the accused that might be thought less likely to have been made by a person who did not speak English very well at the relevant time.
It may be accepted that the comments attributed to the accused would not necessarily require a detailed command of the English language, however the state of the evidence does not allow me to say with any confidence whether the accused’s grasp of English was such as to reflect favourably or unfavourably on the plausibility of this aspect of SA’s account.
Ultimately, given the evidence tends to suggest that the accused was not a fluent English speaker, I have some misgivings about whether the accused could have made the comments attributed to him, but I do not consider that the evidence permits me to make a finding one way or the other.
The accused’s absence from the Redwood Park home
It appears from the above summary that the three particularised incidents alleged to have occurred at the Redwood Park home, took place in December and January 2020.
SA said in his interview that in around February 2020, the accused moved out of the house. Reviewed in its totality, SA’s interview and evidence in chief conveyed that the accused remained living at the Redwood Park premises for the duration of the unlawful sexual acts that allegedly took place there.
In cross examination, it was put to SA that the accused did not live at the Redwood Park premises from 9 June 2019 to 23 August 2019 and then again from 25 September 2019 until at least June 2020. SA agreed that the accused did not live at Redwood Park from 25 September 2019 until at least June 2020. SA said that the accused was living in Bordertown throughout this period and he was unsure whether the accused attended upon the Redwood Park house, referring only to a possible attendance by the accused when SA and his mother thought there was someone on their roof.
I pause here to note that, on the face of it, SA’s acquiescence to this proposition in cross examination is problematic. SA did not suggest, either in his prescribed interview or in his evidence in chief, that any incident taking place at the Redwood Park premises occurred at a time when the accused was living elsewhere. Indeed it is a fair summary of SA’s interview and evidence in chief that it was not suggested by him, and did not form part of the prosecution case, that the incidents to which I have referred took place at a time when the accused was not living at the property.
In re-examination however SA said that at the time of both the first touch on the penis incident and the kitchen / cereal incident at Redwood Park, he believed the accused was living at Bordertown.
SA initially said he was unsure whether the accused ‘came down to our house to see us at any point’ during this period but shortly thereafter suggested that the accused did visit when he was living in Bordertown and that ‘there was times where it would be every fortnight and then there would be times where he would not make any contact for weeks and weeks at a time’. When the accused visited, he would sometimes stay for extended periods.
As I have mentioned, to this point in the evidence it had not been suggested by SA either in his interview, his evidence in chief or indeed on the prosecution case more generally that the accused was living anywhere but the Redwood Park home when the acts of abuse in 2019 and 2020 were allegedly committed.
In her evidence in chief, RA said the accused did not move out of the Redwood Park home at any point.
In cross examination however, RA accepted that between 13 June 2019 and 23 July 2019, the accused was not living at Redwood Park. Indeed, he was prohibited from doing so by an interim intervention order issued under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) for which RA was the protected person (D9). RA said that during this period, she organised accommodation for the accused at Tea Tree Plaza because she understood it was illegal for the accused to remain at Redwood Park whilst the intervention order was on foot. Notwithstanding the interim intervention order, RA maintained that the accused continued to visit the Redwood Park premises.
It was further put to RA that from 25 September 2019 until July 2020, the accused was working in Bordertown and was not allowed to attend at Redwood Park. Moreover, it was suggested to RA that the accused did not have a key to the Redwood Park house in this period. Exhibit D10 demonstrates that between 21 October 2019 and 10 August 2020, a final intervention order was in place in respect of which RA was again the protected person. In accordance with that order, the accused was prohibited, as a matter of law, from attending upon the Redwood Park residence.
Nonetheless, RA rejected the suggestion that the accused did not attend at Redwood Park throughout this period. She said that although the accused was living in Bordertown, and notwithstanding the intervention order, the accused still attended at the residence from time to time and would sometimes stay for a day or two. However, RA was not working and said she was present when the accused would return to Redwood Park. She said he did not stay for extended periods because of his work commitments.
RA maintained that the accused had a key to the premises until 2021 when she swapped out his house key for a ‘fake’ key that would not operate the front door. It was suggested to RA that on 26 September 2019, she told the police that the accused did not have a key and on 27 September 2019, she told the police that she had the spare key to the house and the accused was unable to enter. RA said she could not remember making these statements.
RA agreed that on 28 September 2019, she told the police that the accused had taken his documents, his passport, all of his identification, his bank cards and his phone from the Redwood Park residence.
It was subsequently agreed (P8) that:
·On 26 September 2019, police spoke with RA. The Detailed Occurrence Report records that RA stated that she wanted to go back home and that the accused does not have access to the house, i.e., no key.
·On 27 September 2019, police spoke with RA. The Detailed Occurrence Report records that RA mentioned that she has the spare key, leaving the accused unable to enter the house.
I turn then to the permissible use of this evidence. Whilst I do not know of the circumstances in which the orders came to be in place and noting that s 23(3) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) provides for the making of a final order essentially on a ‘no admission’ basis, I will nonetheless assume that the evidence that there were intervention orders in place, which were on RA’s evidence breached by the accused, engages 34P of the Evidence Act and I direct myself accordingly.
The only permissible use of that evidence is to identify the time periods during which the accused was, as a matter of law, prohibited from residing at the Redwood Park address which, on the defence case, tends to narrow the opportunity for the unlawful sexual acts to have taken place. I have not drawn any inference adverse to the accused from the fact that there was both an interim intervention order and a final intervention order on foot at various times or the suggestion by RA that, during those periods and contrary to the terms of the orders, the accused continued to attend at Redwood Park from time to time or otherwise engaged in discreditable conduct.
Nor have I reasoned that the fact of the intervention orders; the accused’s suggested non-compliance with the orders; or any oblique suggestion by RA that the accused committed acts of domestic violence or otherwise engaged in conduct that might be thought discreditable, demonstrate that the accused is a bad person or someone who is more likely to have committed the charged act because of such matters. That evidence is simply irrelevant, other than to explain why on the defence case, there were periods of time in 2019 and 2020 when the accused was not living at Redwood Park and hence could not have, or was much less likely to have had, the opportunity to commit any unlawful sexual acts.
In addition to the above matters bearing on the question of opportunity to offend, the accused tendered by consent a bundle of pay slips said to show his work commitments between November 2019 and, relevantly, February 2020 (D11). The pay slips suggest that:
·the accused was employed between November 2019 and February 2020.
·the accused worked the following hours between November 2019 and February 2020:
o   Week of 3 November 2019 – 19 hours.
o   Weeks of 10, 17 and 24 November – 38 hours.
o   Week of 1 December – 28.5 hours.
o   Week of 8 December – around 34.5 hours.
o   Week of 15 December – 38 hours.
o   Week of 22 December – around 44 hours.
o   Week of 5 January 2020 – around 34.5 hours.
o   Week of 12 January – 38 hours.
o   Week of 19 January – 38 hours.
o   Week of 26 January – 19 hours.
o   Week of 2 February – around 44 hours.

Whilst the records support the defence contention that the accused was working throughout the period relevant to the alleged offending at Redwood Park, they do not go so far as to suggest that the accused had no opportunity to commit the unlawful sexual acts at Redwood Park, nor did counsel for the accused suggest as much.
Complaint to AM
SA said the first person he told about the alleged abuse perpetrated by the accused was his good friend at the time, AM.
The prosecution relied on this disclosure as initial complaint within the meaning of s 34M of the Evidence Act.
SA said that in the context of talking to AM about trauma in their lives, he asked AM ‘Can I tell you something I’ve never told anyone else and then I told her I was raped most, and mostly by my stepdad’. SA said that the conversation occurred in mid 2021.
When asked in supplementary examination in chief to explain what he meant by the word ‘mostly’, SA was unable to offer any explanation. He confirmed that the only incidents about which he spoke during his prescribed interview involved the accused.
AM gave evidence about a conversation she had with SA via the social media application ‘Discord’ in early 2022. AM said that she and SA were typing messages to each other via Discord one night when she asked SA about his dad and ‘he kind of trailed off and seemed distant in a way’. Although she could not remember exactly what was said next, at some point SA told her ‘that his father had sexually assaulted him’. She could not recall if SA went into any detail and, under further questioning, was unable to say whether SA had used the words ‘sexually assaulted’ or whether that was her summary of what he had conveyed to her.
I bear in mind that this evidence is not evidence of the truth of the facts asserted by SA in the complaint and that the evidence can only be used by me as a tool for assessing the degree to which SA conducted himself in a manner consistent with his allegations.[10] I have regard to both the fact and content of the complaint in undertaking this assessment.[11]
[10] Boyle (a pseudonym) v The Queen [2022] SASCA 50, [25].
[11] R v J, JA (2009) 105 SASR 563, [95].
In the circumstances, I would attach only modest weight to the initial complaint. The detail provided by SA was scant and his description of what had occurred was, in fact, somewhat difficult to reconcile with the allegations now advanced against the accused. I bear in mind that the approach to admissibility encapsulated by s 34M recognises that complainants are not expected to provide a comprehensive narrative of their allegations by way of the initial complaint. Nonetheless, what was said by SA fits only in a very general sense with the allegations against the accused.
While I consider the complaint affords some evidence of consistency of conduct on SA’s part, I am cautious of placing too much weight on it in the circumstances.
Disclosure to RA – April 2022
SA gave evidence that he told his mother of the alleged abuse on 10 April 2022. They were having an argument and his mother was referring to him by the accused’s name, in an apparently pejorative way. This bothered SA as his mother was calling him by the name of a person that had abused him. SA yelled at his mother, telling her what had happened. He later disclosed details to his mother in a text message exchange (P5 and P6).
In cross examination, SA accepted that by the time they moved to Redwood Park, he did not like the accused and that he did not appreciate his mother referring to him by the accused’s name.
RA’s evidence on the disclosure made to her was in substance not dissimilar to SA’s evidence. She said that SA had been playing video games online and she had asked him to take a break. As a result of SA refusing to do so, RA deactivated the modem and thereby disrupted SA’s gaming. RA said that SA rushed out of his room and the following exchange occurred:
A… I can hear him stomping, rushing and went - and he came to me and he said 'How dare you switch it -' or '- turn it off, bitch' or something. And I said 'We don't use these type of words in my -' you know '- in the house. Did you see me using it? So why you using it? I'm your mum ', and stuff like that but he was kind of giving me that gesture and intimidating with his body language. So I end up saying to him, in an angry voice, that 'You doing like my ex-husband' and I called him his name. You know, instead of calling him [SA], I called him [the accused’s] name, and he was furious. And I said to him 'See, see, you - stop, stop, you don't need to do - to be like him, you're copying him and you remind me of him', and then he said to me - [SA] said to me 'Don't compare me with him, he's a rapist, he raped me' or something like that and he run to his room and close the door.[12]
[12] T 110.
RA tried to elicit further details from SA but he was unresponsive. She decided to leave the house and endeavour to extract further information from him via text messages. I have set out the text message exchange earlier in these reasons.
When asked in examination in chief to describe her relationship with SA whilst living at the Elizabeth Vale house, RA responded ‘it’s magnificent’. She said she would talk with SA about ‘things’ and was close to him.
An elaboration?
Ms McKendrick contended that the disclosure to RA was an elaboration of the initial complaint to AM and was therefore admissible pursuant to s 34M of the Evidence Act.
I reject that submission. The disclosure to RA was not an elaboration of the complaint to AM. It was a subsequent and more detailed, but fundamentally distinct and disconnected, report of the alleged offending. The disclosure was separated in time, space and circumstances from the initial complaint to AM. The only link between the two reports was that they concerned the accused.
My reasons for reaching this conclusion follow.
In R v Jones [2018] SASCFC 80 at [68], the operation of s 34M was summarised in the following way:
While s 34M renders admissible evidence of complaint, it is only the ‘initial’ complaint that is rendered admissible. In one sense, there can only be one initial complaint; however the section also permits evidence to be adduced of a later complaint provided that it is ‘by way of elaboration’ of the earlier complaint. Accordingly, unless a later complaint is an elaboration of the initial complaint, evidence can only be led of one complaint and that complainant must be the complaint first in time.
There was no dispute that SA’s complaint to AM was the initial complaint. Counsel for the accused did not suggest that the complaint was not referable to the charged act, although he challenged the cogency of the evidence as demonstrating consistency of conduct on the basis that it was devoid of detail.
Nonetheless, because there was no dispute that the disclosure to AM was the initial complaint, evidence of the subsequent disclosure to RA is not admissible under s 34M unless it amounts to an ‘elaboration’ of the initial complaint. In R v P, S [2016] SASCFC 97 at [24], Nicholson and Lovell JJ explained:
Section 34M(6) contemplates that an ‘elaboration’ of an initial complaint may be admissible. In order to determine whether there has been an elaboration the content of the initial complaint must first be identified. Any ‘elaboration’ of the initial complaint must be sufficiently connected with the initial complaint so that the whole can reasonably be viewed as one complaint. Further, an elaboration of the initial complaint will only be received if it is capable of rationally affecting the assessment of the credibility of the complainant.
Importantly, s 34M does not admit as evidence of ‘initial complaint’ a series of disconnected and sequential disclosures of alleged abuse, merely because the disclosures concern the same subject matter. In R v Maiolo (No 3) [2014] SASCFC 89 at [75], Peek J observed that s 34M remains ‘encircled by two larger areas of the common law’, namely the exclusionary rules prohibiting the reception of prior consistent statements and hearsay, a consequence of which is that:
‘…what s 34M(3) makes admissible is a single ‘complaint’ made by the alleged victim as distinct from a collection of disparate complaints made over an undefined period of time’.[13]
[13] R v Maiolo (No 3) [2014] SASCFC 89, [80].
Accordingly, for a disclosure subsequent to an initial complaint to engage the statutory definition of an ‘elaboration of the initial complaint’ there must be a sufficient connection between the two disclosures to permit them to be viewed as ‘one complaint’. Regard may be had to any circumstantial, temporal or other factual connection between the disclosures when undertaking this analysis. However, it does not follow that merely because sequential disclosures concern the same subject matter and a later disclosure includes objectively ‘more detail’ than an earlier disclosure, that the subsequent reports are necessarily an ‘elaboration’ within the meaning of s 34M. Equally, it does not follow that mere delay between the initial complaint and what is said to be an ‘elaboration’ thereof, or that the elaboration is made to a different person, will defeat the admissibility of the later in time disclosure.[14] Plainly enough, a fact specific examination must be conducted.
[14] See, eg, R v Landmeter [2015] SASCFC 3, [14].
In my view, the disclosure by SA to his mother was not an ‘elaboration’ of the initial complaint made to AM. Whilst I accept that considerably more detail was disclosed in SA’s communications with his mother, the disclosures are otherwise unconnected in time, space or circumstances to permit their characterisation as part and parcel of the initial complaint.[15] The disclosures were separated in time by in the order of a year; were made to different people; and occurred in very different circumstances. SA’s initial complaint to AM did not serve as the platform for his disclosure to RA. On the evidence, it was simply a later in time and more comprehensive narrative of the allegations that emerged in the course of an argument between SA and his mother about her deactivation of the modem and her subsequent references to SA by the accused’s name.
[15] Cf R v Landmeter [2015] SASCFC 3 where the ‘elaboration’ was made to the same person and in fact used the initial complaint as the ‘platform’ for the provision of further detail.
It follows that the text messages, and associated oral disclosures made by SA to RA, may only be used for the purpose of demonstrating inconsistencies between SA’s evidence and what he told his mother had occurred on 10 April 2022, unless the messages have some other permissible non-testimonial use.
Submissions of the parties
I have carefully reviewed the transcript of the final addresses made by the parties. I will summarise the key contentions they advanced but do not propose to detail the addresses at length.
Ms McKendrick, counsel for the prosecution, advanced the following contentions:
·The evidence of SA was reliable and credible and ought to be accepted. He had not attempted to portray the accused in a ‘poor light’ and had not alleged that the accused behaved in an aggressive manner or used force against him. The measured and unembellished nature of SA’s account reflected his upfront and honest disposition.
·SA’s demeanour, spontaneous answers and responsiveness to questions were hallmarks of a truthful account, as were the details he provided of the unlawful sexual acts which, it was submitted, were fundamentally irreconcilable with the contention that SA presented a purely fictional and fabricated account of alleged abuse.
·The evidence revealed that the accused had gained SA and RA’s trust and confidence in the period leading up to the alleged offending, such that RA was content to leave SA alone with the accused. This presented an opportunity for the accused to commit the charged acts. The deterioration of the relationship might have then emboldened the accused to commit the unlawful sexual acts alleged.
·That SA did not attribute the deterioration in his relationship with the accused to the alleged offending, reflected positively on the honesty of his account.
·SA described a logical progression of alleged misconduct by the accused, commencing with a testing of the waters by becoming more ‘handsy’ with SA in early 2018 and progressing to the first particularised incident.
·As to the first incident:
o   Although SA said in the prescribed interview that this incident occurred in the middle of 2018 or 2019, SA was clear in his oral evidence it took place at the Elizabeth Vale house and when he was in Year 6, which was 2018.
o   SA’s suggestion that it went for an ‘hour’ was understandable as perceptions of time can be affected by a number of variables, including that from SA’s perspective, the interaction might well have felt like it went on for an extended period because of its uncomfortable nature.
·As to the second incident:
o   Whilst SA said in proofing just prior to trial that the incident occurred at Redwood Park, he was clear in his oral evidence and his interview that the episode took place at Elizabeth Vale and just a few weeks after the first incident.
·As to ‘the first touch on the penis’ episode, Ms McKendrick argued:
o   It is clear that SA alleges this took place in the 2019 / 2020 summer school holidays and it might be that between the alleged commission of the second incident and this episode, one or more of the ‘other incidents’ took place, demonstrating a plausible progression and build-up of alleged offending.
o   SA’s suggestion during proofing that, contrary to his prescribed interview, there was no attempted anal penetration on this occasion was explained by SA’s evidence that he was exhausted by the proofing and may have simply confused incidents. Moreover, his candour in acknowledging the inconsistency was to his credit.
·As to the ejaculation incident:
o   This appeared to have taken place in mid to late December 2019. SA said he was in Year 7 at the time and the agreed facts establish SA was in Year 7 in 2019.
o   The change in detail between the incident occurring whilst SA and the accused were lying on the bed (evidence) as opposed to sitting on the bed (interview) was understandable particularly as SA had said, at the time of his interview, that he did not ‘remember the whole time’.
o   Further, the detail involved in SA’s account of this occasion was such as to be incompatible with fabrication.
·As to the kitchen / cereal incident at Redwood Park:
o   SA’s evidence was that this occurred a few months after the accused first touched him on the penis, placing it in or around January 2020.
o   Whether it was the accused touching his penis (interview) or SA feeling the tip of the accused’s penis between his thighs (evidence) which caused SA to ‘snap’ and leave the kitchen was immaterial.
o   There was, in truth, no inconsistency between SA’s description of this incident in his interview and his statement during proofing that he felt the tip of the accused’s penis as it was implicit in SA’s interview that he alleged skin on skin contact.
o   Equally, Ms McKendrick submitted that it was unimportant that SA had suggested in his evidence, but not during his interview, that his pants were removed during this incident.
·As to inconsistencies generally, Ms McKendrick submitted there was a ‘plausible explanation for each one’ and they may simply reflect the nature of the allegations and the passage of time between SA’s interview, preparation for and giving evidence at trial.
·On the topic of complaint, Ms McKendrick contended:
o   I should prefer the evidence of SA to AM as to the timing of the complaint as SA’s evidence was more coherent with the known chronology of events, including the timing of the subsequent report to RA. AM’s evidence about the timing and content of the complaint was expressed with some uncertainty or hesitation.
o   SA’s reference to being ‘raped’ by the accused was of no moment having regard to the nature of the conversation between SA and AM, their age and SA’s apparent reluctance to provide too many details.
o   The disclosures in the text messages (P5 and P6) were referrable to the episodes alleged to have occurred at Redwood Park, not at Elizabeth Vale. Ms McKendrick submitted, for example, that the reference to the ‘first time’ something happened in the text messages was not, in fact, a reference to the ‘first time’ something happened between the accused and SA but rather, was a reference to the first time the accused allegedly touched SA’s penis.
o   Finally, Ms McKendrick argued that the evidence established that the accused had ample opportunity to offend against SA; that this was not a case in which it was alleged that abuse happened every day or with such frequency that the evidence concerning the accused’s working hours or time spent away from the house, should give rise to any doubt about the cogency of SA’s account.
Mr Morrison, counsel for the accused, made the following submissions in his final address:
·The evidence of SA ought to be scrutinised with great care in light of the inconsistencies to which reference has been made and the difficulties arising on the chronology set out by SA in his prescribed interview; in statements made to the prosecution or the police; and in the course of his evidence.
·Mr Morrison emphasised that in SA’s interview and evidence in chief, there was no suggestion that any of the alleged unlawful sexual acts occurred when the accused was not living at the Redwood Park property. It was only in response to cross examination that established that the accused was not living at Redwood Park for the second half of 2019 and early 2020 that SA suggested for the first time that these acts took place when the accused was residing at Bordertown. Furthermore, SA had said in his interview that the accused left the Redwood Park house in February 2020, which implied that he had remained living there until that time. Mr Morrison contended that the evidence of both SA and RA was unsatisfactory in this respect and revealed a willingness to adapt their evidence in light of cross examination.
·Mr Morrison argued that, whilst this was not a case of there being no opportunity for the accused to offend, the evidence concerning his employment and time away from the Redwood Park house in particular, made the complainant’s allegations implausible.
·As to the first incident, Mr Morrison submitted:
o   The difference between SA’s suggestion in the interview that the first occasion of inappropriate contact was in July / September 2018 or 2019; the assertion in the text messages, P5, that the ‘first time’ was in July 2019; and his evidence that the first time occurred when he was in Year 6, which was 2018, was deeply problematic. SA alleged that the first incident occurred at Elizabeth Vale but, on the face of the text messages, that could not be correct because they were living at Redwood Park from early 2019. Mr Morrison said this ‘moveable feast’ cast doubt on the reliability and credibility of SA’s account.
o   SA’s description of the ‘first time’ in the text messages (P5 and P6) which passed between SA and RA on 10 April 2022 alleged that the accused kissed the complainant; told him to do things to the accused and told the complainant to kiss his ‘you know’ which, it was submitted, had to be a reference to the accused’s penis. Less than a week later, in his prescribed interview, SA said the ‘first time’ involved pressing and caressing his thighs and touching his stomach and lower chest. SA did not allege the accused kissed him or asked him to kiss his penis.
o   Similarly, SA agreed in cross examination that the question from RA at p 3 of P5, namely, ‘So he put his penis from your back’, may have been an inquiry whether the accused anally penetrated SA. If so, SA’s response ‘he tried’ was inconsistent with his description of the detail of the ‘first time’ during his interview.
·As to the second incident, Mr Morrison argued that the same timing difficulties necessarily applied, because SA alleged that the second incident occurred just a matter of weeks after the ‘first time’. He argued further:
o   SA had again provided inconsistent descriptions of the sexual activity occurring during this episode. In the text messages, SA said of the ‘second time’ that the accused ‘tried to touch me and rub my penis, then he tried kissing me and I stopped it’. In his interview, SA said that during the ‘second time’, the accused kissed his neck and cheek; put his arms around SA; touched his backside and placed SA’s hand ‘forcibly’ onto his ‘genital area’ and kept SA’s hand in position using his own hand.
o   SA said during proofing that this incident in fact occurred at the Redwood Park address, introducing further confusion into an already inconsistent chronology.
o   Mr Morrison identified what he said was a further inconsistency between the text messages and SA’s evidence. Recalling SA’s evidence that there was only ever one episode of indecent touching in the kitchen and that was at Redwood Park, Mr Morrison drew attention to pp 10-11 of P5 in which RA asks SA ‘When and where was the third attempt’, to which SA responded ‘i don’t remember the third…probably the kitchen’. SA went on to explain that he was making food when the accused came up behind him and tried to touch him. Mr Morrison contended that two problems arose from the text messages: first, if SA was in fact referring to another incident, separate to the kitchen / cereal incident, the text messages were inconsistent with SA’s evidence that there was only one incident in the kitchen. Secondly, if SA was referring to the kitchen / cereal incident, it was wrong to describe it as the ‘third time’ because on SA’s evidence it was in fact the fifth, and final, discrete episode he recalled and, further, the message contained none of the detail that was articulated by SA just a few days later, during his prescribed interview.
·As to the first touch on the penis incident, Mr Morrison relied on a number of matters:
o   during a proofing session with the prosecution on Thursday, 15 June 2023, SA said that the accused did not try to penetrate his anus on this occasion. Mr Morrison contrasted the detail in which SA described the attempted penetration in his interview with the suggestion by SA, just a few days before trial, that the accused did not in fact attempt to penetrate him on that occasion. Mr Morrison argued further that SA said in his supplementary evidence in chief that the accused had tried to remove SA’s underwear during this incident, but SA prevented him from doing so. This evidence, he contended, was problematic in that it was inconsistent with what SA said in the interview on this topic, namely that he was ‘naked 100%’ and the accused had removed his underwear. He argued further that SA’s evidence that his underwear were not in fact removed, rendered his description of the attempted penetration unintelligible.
o   during a proofing session with the prosecution on Thursday, 15 June 2023, SA said that this incident occurred in 2018 when he was in Year 6, which would have meant that the incident occurred not at the Redwood Park home but at the Elizabeth Vale property.
o   SA said in his interview that the request for the fellatio prompted him to leave the room, yet in his evidence he said that the request for fellatio prompted them to change their positions.
·In dealing with the ejaculation incident, Mr Morrison argued that the evolution in SA’s account from ‘sitting’ to ‘laying’ was troubling and that it was inherently unlikely that the accused could have engaged in the alleged conduct with SA given their substantial size disparity at the time, with the accused being a very tall man.
·Turning finally to the kitchen / cereal incident, otherwise described as the ‘last time’ anything happened, Mr Morrison submitted:
o   SA’s evidence that he could feel ‘skin on skin’ contact as between the tip of the accused’s penis and his backside and that the accused had pulled his pants down, was at odds with the interview, during which he said that he had his clothes on throughout.
o   SA agreed that the first time he had mentioned feeling skin on skin contact with the tip of the accused’s penis on his bottom was when he spoke with police on 16 June 2023.
o   In his interview, SA said that it was when the accused put his hand down SA’s pants that SA ‘snapped away’ and returned to his room. In a statement of 16 June 2023, SA told the police that it was when he felt the accused’s penis touch his bottom that he ‘snapped away’ and returned to his room.
o   In his interview, SA said that the accused had tried to put his penis between his thighs during this incident (recalling that this occurred, according to the interview, whilst SA was clothed) yet during proofing with the prosecutor on 15 June 2023, SA said that the accused in fact tried to insert his penis into SA’s anus.
o   Mr Morrison also relied on internal inconsistency in SA’s interview insofar as he initially suggested he ‘snapped away’ when the accused touched his penis but subsequently said the accused rubbed his penis for around 30 seconds before he removed himself from the kitchen.
o   The incident, as described by SA, was inherently implausible given the prominent window in the dining room of the house would give a line of sight from the street into the kitchen, where SA alleged this incident occurred.
o   If the ‘kitchen’ incident, referred to in P5 as the ‘third time’ was in fact referable to this episode, there is an absence of critical detail in the messages.
Analysis
Assessment of SA

I found SA to be a generally sound witness. He struck me as a reasonably mature young man at the time of giving his evidence. He was ostensibly forthright and responsive during examination in chief and cross examination. He made appropriate concessions as to the limits of his memory and acknowledged and accepted making the various inconsistent statements to which I have made reference.
SA displayed little emotion when giving his evidence or in his interview. He described the allegations in a matter of fact way and did not, discernibly at least, appear to exaggerate or embellish his answers. Equally, as Ms McKendrick submitted, beyond the allegations that he made, SA did not endeavour to demonise the accused or otherwise paint him in a bad light.
I formed a reasonably favourable impression of SA as a witness who was endeavouring to tell the truth however I consider there are significant issues attenuating the reliability of his evidence. I also have reservations about some aspects of SA’s account and, in particular, the evidence he gave in re-examination for the first time that the Redwood Park incidents occurred whilst the accused was living away from home.
I will return to these issues in more detail.
Assessment of RA
I generally considered RA to be a satisfactory witness. As English is not her first language, her answers were occasionally unresponsive or tangential but I considered she was doing her best to recall features of her relationship with SA and the accused, and their daily living arrangements, from four to five years ago. An example of what appeared to me to be her general candour was her evidence that, when SA initially disclosed to her the allegations against the accused, her response was: ‘I have to be honest with you, at the beginning I wouldn’t really think it happened. I thought it's just [SA] is teasing me or just to annoy me because I turn off the modem. I wasn’t – wasn’t sure he was telling the truth’.
However, there is a notable exception to my general assessment of RA and it relates to the accused’s access to the Redwood Park property throughout the period that the intervention orders were on foot.
The agreed facts confirm that on 26 and 27 September 2019, RA told the police that the accused did not have access to the Redwood Park house – that he had no key. In cross examination, RA said she could not remember making these statements to the police and maintained that the accused kept a key to the house until 2021. There being no suggestion that the police records documenting the statements made by RA may be inaccurate, incomplete or otherwise incorrect, it appears that, on the basis of her evidence before me, RA was not forthright with the police. The alternative hypothesis is that what RA told the police was the truth and that she has lied in her evidence about the accused retaining a key to the house.
I consider the more likely scenario to be that RA was less than frank with the police, perhaps caught between her perceived need for the intervention order but keeping the prospect of reconciling her relationship with the accused open.
Nonetheless, this remains a significant impeachment of RA’s credibility and reliability. Her lack of candour with the police is troubling and I bear it in mind in assessing the credibility and reliability of her account more generally.
However, RA’s evidence was only challenged in limited respects. Indeed, counsel for the accused embraced aspects of RA’s evidence, including as to the accused’s work commitments in 2018-2020 and the state of her relationship with SA throughout the relevant period.
Having carefully considered RA’s evidence, and with the benefit of having observed her at trial, I accept her evidence that whilst residing away from the Redwood Park home – including those periods where intervention orders were on foot - the accused continued to attend upon the house from time to time. However, I find that his visits were irregular as the accused was, save for assistance from RA, dependant on being driven from Bordertown to Adelaide by work colleagues. I am satisfied that the accused would sometimes stay at Redwood Park for a night or two but not for extended periods owing to work commitments. I also find that RA was not working at this time and would therefore have been at home more often than when she was employed.
Assessment of AM
AM was 16 years old at the time she gave evidence about the initial complaint made by SA. AM appeared to me to be a young woman endeavouring to honestly recall a conversation she had with a friend some years ago, but there was an apparent lack of confidence and uncertainty in the accuracy of her memory, particularly as to timing of the conversation.
Whilst AM’s evidence supported SA’s evidence that a conversation took place, I prefer the evidence of SA as to when that conversation occurred and what SA told AM.
Context of alleged offending
I turn then to consider SA’s evidence of the context in which the alleged offending occurred, the opportunity for the abuse to have taken place as alleged and SA’s description of the unlawful sexual acts.
In support of the submission that I ought to accept SA’s evidence, counsel for the prosecution observed that the evidence revealed that the accused had gained the trust of SA and RA in the period leading up to the family’s move to Elizabeth Vale such that RA was comfortable leaving SA in the care of the accused during periods of onerous working hours. The prosecutor submitted that the accused exploited the trust SA and RA had placed in him by opportunistically embarking on unlawful sexual acts with SA when his mother was away from the home. Ms McKendrick submitted that the deterioration in the relationship upon the move to Elizabeth Vale might have emboldened the accused to abuse SA.
It is important in the context of allegations of this kind to be cautious of allowing perceptions of normative behaviour to intrude into the fact-finding process. However, it also remains important to evaluate the evidence using common sense.
In undertaking a common-sense assessment of SA’s evidence about the circumstances in which the alleged abuse of him commenced, I have some difficulty in accepting the prosecutor’s submission. The breakdown in the relationship between SA and the accused – which SA did not attribute to the allegations of abuse – might at one level be thought more likely to have acted as a barrier to the accused embarking on rather brazen and opportunistic offending which, in the context of an already strained relationship, might well have been readily disclosed by SA. Of course, this analysis has to be counterbalanced against SA’s evidence that alleged abuse was accompanied by the accused’s threatening behaviour which, the prosecution argued, was designed to ensure SA’s silence and acquiescence in the accused’s sexual pursuit of SA.
Bearing these matters in mind, I do not consider the context in which the alleged abuse is said to have occurred to be particularly illuminating one way or the other.
Opportunity at Elizabeth Vale
The evidence of RA, which I accept on this topic, establishes that during the family’s time at Elizabeth Vale, she worked 4 days of the week and one day of the weekend at a chicken factory. She generally worked from early in the morning until early afternoon or early evening.
The accused appears to have worked at least some of the time that the family lived at Elizabeth Vale. RA’s evidence was clear that when the accused was employed, RA would not work.
Accordingly, there were periods of time during the family’s residence at Elizabeth Vale when the accused was working and RA was not. The opportunity for the accused to offend during those periods may have diminished but it cannot be said, and counsel for the accused did not suggest, that there was no opportunity for the accused to offend during this period.
First time
In the text messages, SA alleged the ‘first time’ something occurred was July 2019 – at which point, the family would have been living at Redwood Park, according to the agreed facts.
SA said in his interview that the ‘first time’ anything happened with the accused was around July / September 2018 or 2019 at the Elizabeth Vale house. In the context of describing the first two episodes, SA prepared a floor plan of the Elizabeth Vale property.
In his evidence in chief, SA said that the first incident occurred when he was in Year 6 which was 2018.
I do not consider the mere inconsistency as to the timing of the first alleged episode to be of much moment by itself. However, the significance of the divergence lies in the disconnect between the clear evidence of SA that the first incident occurred at the Elizabeth Vale home in 2018 and the import of his statements to RA and, to a lesser extent, in his interview, that the ‘first time’ anything occurred was in July 2019 or in July / September 2018 or 2019, when the family moved from Elizabeth Vale in February 2019.
I accept that this may be reflective of genuine confusion or mere chronological error on SA’s part and, if it stood alone, would not provide an insurmountable barrier to acceptance of SA’s evidence.
However, the additional difficulty arising with respect to this episode is the content of the text messages. If, as I have earlier found, the text messages purported to describe the first time anything happened, there is considerable difference between what SA alleged in the text messages occurred on that occasion and what he disclosed during interview. SA’s narrative of the ‘first time’ during interview alleged touching and caressing of SA’s thighs, arms, shoulders and back. In the text messages, SA told his mother the first time included kissing, a request by the accused for fellatio and an attempted penetration. There is a profound qualitative difference in the seriousness of the allegations advanced by SA in his interview on the one hand, and the text messages on the other.
I acknowledge again the argument that these inconsistencies support the proposition that what SA was describing in the text messages was not the first time anything happened but, rather, what came to be described as the first touch on the penis incident. However, even if that is the incident SA was intending to describe, it would follow that SA completely omitted reference to the two incidents said to have occurred at Elizabeth Vale and there is no explanation in the evidence for that omission. That may be because, at the time, he was focussing on what to his mind were the more significant interactions he alleges took place. Equally I acknowledge the inconsistencies may be a product of the nature of the allegations and confusion on SA’s part as to what happened during any particular episode. It remains the case however, that on my finding that reference in the text messages to the ‘first time’ means what the ordinary meaning of the words used conveys, SA’s description in the messages of the ‘first time’ is inconsistent in material respects with his interview and evidence when it comes to timing and detail of the episode.
Second time
Similar issues beset SA’s evidence about the ‘second’ incident. It is clear from SA’s interview and evidence in chief that he alleges the ‘second’ incident took place at Elizabeth Vale just a few weeks after the ‘first time’. However, just a few days before giving evidence, SA told the prosecutor during proofing that he thought this episode occurred at Redwood Park. The difficulty this inconsistent statement creates is that it is wholly incompatible with the chronology set out by SA in his interview. In his interview, SA explained that the first and second incidents of alleged abuse occurred within a short space of time at the Elizabeth Vale house. That sequence of events cannot be reconciled with the suggestion by SA, just a few days before giving evidence, that the second episode of alleged abuse took place at the Redwood Park house.
Ms McKendrick submitted that notwithstanding what SA said during proofing, it is clear that SA alleges this incident occurred at Elizabeth Vale. So much may be accepted. However, the fact that SA might ultimately have settled on the position that the incident occurred at Elizabeth Vale only serves to highlight the significance of the largely unexplained statement, just a few days before trial, that this incident occurred at Redwood Park. I say ‘largely unexplained’ because there was a general explanation advanced by SA for inconsistencies arising out of his proofing and that was the taxing nature of the proofing. Whilst I gave that explanation due consideration, I find the change in SA’s version of events in this respect somewhat troubling.
The occurrence of the incident at Elizabeth Vale was an integral part of SA’s version of events about this incident. Indeed, it was his description of the incident that prompted the interviewer to request SA to prepare a floor plan of the premises at which the event took place. This led to SA drawing the floor plan of the Elizabeth Vale property that is P2.
In those circumstances, it is significant that SA would make such a fundamental mistake about where the second of only two identifiable episodes alleged at Elizabeth Vale was said to have occurred.
Returning to the text messages that make reference to the ‘second time’, it will be recalled that SA told RA that after the ‘first time’, the accused ‘left it for a couple of weeks…and tried to rape me’.
In his interview, SA said that during the ‘second time’, the accused had kissed his neck and cheek, caressed his bottom and ‘forcibly’ placed SA’s hand onto his ‘genital area’ and kept it there. In the text messages, SA alleged that ‘he tried to touch me and rub my penis, then he tried kissing me and I stopped it’. It can be seen then that the principal differences between the version advanced in the text messages and the version provided by way of interview are that (1) the messages made no reference to the accused forcibly placing SA’s hand on his genital area; (2) in his interview SA did not allege the accused had tried to rub his penis on this occasion.
I bear in mind the inconsistencies in SA’s account with respect to this incident, and the cumulative effect of these discrepancies.
Move to Redwood Park
I move now to the acts alleged to have taken place at Redwood Park.
Once again, the evidence suggests, and I find, that the accused worked a number of different jobs whilst living at Redwood Park. Because of the nature of his employment, the accused often worked from early morning through to early afternoon or early evening. As was the case at Elizabeth Vale, during their time at Redwood Park, when the accused worked, RA did not work. She would take the accused to and pick him up from work.
The accused’s work records (D11) indicate that he worked consistently from the week of 3 November through to the week of 2 February 2020. During this time, the accused was residing at Bordertown but, as I have previously said and I find, he continued to attend at the Redwood Park house from time to time, notwithstanding the intervention order. However, I find his attendances which were dependent on others providing him with transport, were irregular and must have been somewhat spontaneous. I find that RA was not working and would have generally been at home save for attending to daily errands such as shopping or catching up with her sister.
Accordingly, when the accused was working in 2019 through to early 2020, the opportunity for him to offend was necessarily more limited. Again, however, the evidence does not support a finding that there was no realistic opportunity for the impugned acts to have taken place.
However, this aspect of the evidence has another, important, dimension. It was no part of the prosecution case, and it was not suggested by SA in his interview or indeed his evidence in chief, that any unlawful sexual act allegedly occurring at Redwood Park took place when the accused was residing elsewhere.
Indeed, in his interview, SA said the accused moved out of the property in around February 2020, and in the text messages, SA told RA that the alleged abuse continued until a month before RA asked the accused to leave the house.
This notwithstanding, in re-examination SA suggested that the accused was living at Bordertown when the first touch on the penis incident and the kitchen / cereal incident occurred. I found this aspect of SA’s evidence somewhat unpersuasive as it appeared to me to be a reactive evolution in his evidence. The circumstances in which this shift in SA’s position emerged reflects adversely on my assessment of his evidence.
First touch on the penis incident
The summary of evidence relating to this incident which is set out earlier in these reasons makes it apparent that a stand-out feature of SA’s narrative was the attempted penetration of his anus by the accused. SA described in considerable detail the steps the accused took in this respect. His evidence was vivid and specific. Although this incident was introduced in the interview by reference to the ‘first time that the accused touched SA’s penis’, the focus of SA’s evidence was the attempted penetration. It is in this context that the significance of SA’s statement to the prosecutor, just a few days before giving evidence, that the accused did not attempt to penetrate him during this episode must be evaluated.
In his supplementary evidence in chief SA was not asked to detail what occurred on this occasion. The cross-examination having established the inconsistency, the discrepancy was not taken up in re-examination.
I am left in the position of not knowing whether SA in fact stood by what he said in the prescribed interview on the topic of penetration or whether he adhered to the comment he made to the prosecutor during proofing just a week before trial.
The state of the evidence is that on 15 April 2022 SA said that the accused tried to penetrate his anus on this occasion and on 15 June 2023, SA said that the accused did not try to penetrate his anus on this occasion. Whilst I acknowledge that by virtue of s 13BA of the Evidence Act the statement made by SA during his interview has a testimonial use and the statement made on 15 June 2023 is before me only as a prior inconsistent statement, given the act of attempted penetration was such a pivotal feature of SA’s description of this incident, I am deeply troubled by his comment, just a week before trial, that the accused did not in fact attempt to penetrate him. I have had regard to SA’s explanation of how he felt during the proofing, but I do not consider that his explanation substantially diminishes the importance of this inconsistency.
This shortcoming in the evidence concerning this incident is amplified by the further suggestion by SA in proofing that this episode took place in 2018 and whilst he was in Year 6. The implication arising from this statement is that the incident could only have taken place at Elizabeth Vale and not Redwood Park.
Two things should be noted about this inconsistency. The first is that SA said during his prescribed interview that this event occurred at Redwood Park and there was no doubt about his evidence in this respect. Equally, he was clear in his interview that the incident took place over the 2019/2020 summer holidays. SA rationalised the timing of the alleged incident by reference to he and the accused being ‘sweaty’. Secondly, when explaining this incident to the interviewer, SA was again asked to prepare a floor plan of the house in which it occurred. It was at this point in the interview that he prepared P3 – the floor plan of the Redwood Park premises.
It was an essential element of SA’s description of this episode that it occurred at the Redwood Park home and in the summer holidays of 2019 / 2020. SA confirmed in his evidence in chief that this episode occurred at Redwood Park.
As I have said, on the face of the statement made during proofing, this episode would have taken place at the Elizabeth Vale property and in much closer proximity to what SA described as the ‘first’ and ‘second’ times that anything inappropriate occurred. The inconsistency gives rise to additional problems when reconciling it with SA’s evidence more generally. For example, and as will be seen, SA said in his evidence that the last occasion of sexual contact (the kitchen / cereal incident) took place in January 2020 and occurred just a couple of months after the accused first touched SA on the penis. On what SA said during proofing on 15 June 2023 about the incident under consideration, that chronology cannot be reconciled.

Although I consider this inconsistency of much less importance than SA’s assertion that there was no attempted penetration on this occasion, the combined effect of the inconsistencies is to cause me to doubt whether I can rely on SA’s narrative about this episode.
To these significant issues, it is necessary to add that SA’s account about his state of undress and the request for fellatio was also inconsistent. In his prescribed interview, SA said that he was ‘naked 100%’ and that the accused had removed SA’s underwear. Contrastingly, in his supplementary evidence in chief, SA said that the accused had tried to remove his underwear, but SA had prevented him from doing so. In light of this evidence, it remains unclear how it is alleged that the accused attempted to penetrate SA. In particular, attempting to draw together SA’s description of the attempted penetration during interview with the proposition that his underwear remained on him throughout this episode presents significant problems.
As to the request for fellatio, in his interview SA said that the request prompted him to leave the room. In his evidence, he said it prompted SA and the accused to change their position on the bed.
Ms McKendrick sought to downplay the inconsistencies in SA’s evidence of this incident. She submitted they were understandable in light of the delay of a year between the prescribed interview and the proofing and that SA said he found the proofing exhausting. Ms McKendrick suggested that it was perfectly understandable in those circumstances that SA might have made a mistake about what occurred on this occasion and that it was to his credit that he was ‘upfront and honest’ about the error.
I am unpersuaded by the prosecutor’s submissions on this incident. The established inconsistencies are central to the very fabric of SA’s account of this episode. There is no doubt that the attempted penetration was the most prominent and important part of SA’s original description of this event. In his interview, SA outlined in considerable detail the mechanism by which the accused attempted to penetrate him; the movement of the accused’s penis; and feeling the accused’s penis at the entrance of his anus. For SA to subsequently say, just a week before giving evidence, that the accused did not in fact try and penetrate him on this occasion is a significant departure from the content of his interview on a topic of central importance. The inconsistency is not of the kind that can simply be swept away or its significance diminished on account of what is said to be the exacting nature of a proofing session. The additional inconsistencies to which I have referred simply compound the significance of this divergence.
As a result of the inconsistency on the topic of attempted penetration, and leaving aside for the moment my general concerns about the reliability of SA’s evidence, I am not satisfied beyond reasonable doubt that the accused committed the unlawful sexual act of ‘attempted rape’ and accordingly I am not satisfied that particular (g) has been established.
Ejaculation incident
I turn then to the ejaculation incident. This was an incident which SA disclosed during interview after being asked if he could recall any other occasions of alleged abuse. SA said he could not ‘remember the whole time’ but said that he was sitting on the bed with the accused when, without warning, the accused removed SA’s pants and began rubbing his penis. The accused removed his own clothing and rubbed his and SA’s penises ‘together’. SA said that he ejaculated after 4 or 5 minutes. He could not remember whether the accused ejaculated.
SA said during interview that he could not recall when this incident occurred but in his supplementary evidence in chief said it was a month and a half after the accused first touched his penis and that he was in Year 7 at the time. This would mean the incident occurred sometime in or around late 2019 / early 2020.
SA’s evidence about this episode was generally, internally consistent. Plainly enough, in his evidence in chief, SA added temporal details that he was not able to provide during interview. He also accepted in cross examination that in his evidence in chief, he had described himself and the accused as ‘laying’ on the bed, not sitting. I accept that SA’s account is, in these respects, inconsistent. However, the inconsistency as to SA and the accused’s positioning on the bed is, to my mind, not particularly material. SA’s description during interview of ‘sitting in’ the bed was not explored by the interviewer. I do not accept Mr Morrison’s contention that the physical characteristics of the accused and SA render SA’s version implausible. The gravamen of SA’s account was that the accused simultaneously rubbed both his own and SA’s penis. I do not consider that their height differential would have rendered that exercise impossible, or implausible for that matter.
I accept, as counsel for the accused argued, that one might ordinarily expect a deterioration in memory over time and not an improvement. According to his evidence in chief, SA was able to remember more about this incident in June 2023 than he was when he participated in the prescribed interview in April 2022. Moreover, no apparent reference was made by SA to this incident in the course of the text message exchange with SA.
I bear these matters in mind in my evaluation of SA’s evidence however SA’s account of this episode was largely untarnished by cross examination and did not suffer from inconsistencies of the nature or degree as those which attend other aspects of his evidence.
Examining SA’s evidence on this incident in isolation for the moment, I considered his evidence to be generally credible and reliable.
Kitchen / cereal incident
The evidence concerning the kitchen / cereal incident suffers from a number of infirmities.
In his interview, SA explained that the accused had ‘tried’ to put his penis between his thighs during this incident. He added that whilst he thought the accused was trying to ‘anally rape’ him, the accused did not take steps towards that because their interaction would have been visible through the large window in the dining room of the house. Exhibit D7 demonstrates the dimensions of the window.
Contrastingly, SA agreed that he told police just a week before giving evidence that the accused in fact tried to anally penetrate him during the kitchen / cereal incident. This was not an allegation made by SA during his interview. Indeed, and as I have just said, SA referred to the prominence of the window to explain why the accused did not endeavour to penetrate him.
Equally, whilst SA described feeling the ‘bulge against my arse’, he did not, in his interview, suggest that (1) his pants were removed (2) that he felt the tip of the accused’s penis touch his buttocks. In cross examination, SA agreed that the first time he mentioned feeling skin on skin contact as between the accused’s penis and his buttocks was when he spoke with police on 16 June 2023, just a few days before giving evidence. Further to this, SA agreed that he told police on 16 June 2023 that it was at the point of detecting the accused’s penis touching his buttocks that SA ‘snapped away’ and essentially brought an end to the incident. In his interview, SA said he ‘snapped away’ when the accused put his hand down SA’s pants.
These are significant features of the alleged incident that change the complexion of the interaction and run, in some respects, contrary to the apparent concern about the risk of detection which, in his interview, SA described as operating as some form of impediment to the accused’s conduct.
Once again, with the exception of the general inquiry into how SA was feeling at the time of the proofing, there was no supplementary examination or re-examination on whether SA’s final position was that there was, or was not, an attempted penetration of his anus during the kitchen / cereal incident. In any event, the fact that SA introduced that detail just a few days out from giving evidence is cause for some concern.
I accept that the nature of and manner in which a witness is asked questions during a proofing, interview or whilst giving evidence in court, can prompt revision, alteration or the addition of detail. Some such divergences will be of no real moment; others may be. Much depends on the circumstances in which any discrepancy emerges and the importance of the topic to which the discrepancy relates.
It is fair, as counsel for the accused submitted, to describe the addition of detail concerning an attempted penetration during the kitchen / cereal incident as a material change.
Conclusion
I have carefully considered all of the criticisms of the complainant’s evidence advanced by the accused. In respect of perhaps all but the ejaculation incident, SA’s account is tarnished by significant inconsistencies, omissions or evolutions in detail which I consider to be highly material to my assessment of the reliability of his evidence.
Despite my favourable impression of SA as a witness doing his best to provide a forthright and honest account, the nature and number of shortcomings in his evidence relating to most of the allegations leaves me with irremediable reservations about the reliability of his account. I have not overlooked the challenges that confront a witness in SA’s position in giving an unblemished and universally consistent account. SA first spoke with the police some two years after the last act of abuse alleged and it was a further 14 months before he gave evidence in this Court. I also bear in mind that SA was purporting to recall experiences he said he had been subjected to as a young boy.
Similarly, I have carefully considered the evidence given by SA about how he felt during the proofing prior to the trial. These considerations go some way to explaining how the various inconsistencies and narrative evolutions may have come about but they are not a panacea. The issues with SA’s evidence that have been identified are, in the main, so closely connected with the fabric of SA’s allegations of unlawful sexual acts that I am not prepared to overlook them.
I have factored into my assessment of SA’s evidence the initial complaint he made to AM, although I do not consider that evidence to be particularly probative of consistency of conduct on SA’s part because of the limited content of the complaint. Whilst the fact of the complaint being made might afford some evidence of consistency of conduct, I am not minded to place more than minimal weight on the complaint evidence.
Excluding for the moment the ejaculation incident, as a result of my concerns about the reliability of SA’s evidence, and notwithstanding the suspicions I hold that there has been inappropriate contact as between the accused and SA, I am unable to find beyond reasonable doubt that the accused committed the unlawful sexual acts alleged as part of the ‘first time’, ‘second time’, the first touch on the penis incident and the kitchen / cereal incident.
Equally, and because of the dearth of detail surrounding what I have referred to earlier as the ‘other generalised allegations’, I am not persuaded beyond reasonable doubt that those other acts occurred as alleged. Furthermore, to the extent that SA described non-particularised ‘more intimate’ touching, during which the accused tried to get SA to ejaculate, the suggestion must be that these incidents occurred after the first touch on the penis incident and before the kitchen / cereal incident. In the absence of contextual detail, it is difficult to determine how these generalised allegations fit with my finding that the accused was residing at Bordertown throughout this period.
With respect to the generalised allegations of ‘kissing’ and ‘touching’, there is also some doubt in my mind as to whether some of SA’s descriptions are couple of making out the sub-elements of a sexual offence and whether some of the conduct he described in fact fell within the particulars of the charge.
For example, SA gave evidence that the accused would kiss his neck and cheek. It may well be that what SA was describing could, in fact, amount to unlawful sexual acts of indecent assault. It might be said that it is implicit in SA’s reference to such matters in the particular context that what he was describing was indecent kissing. However, I need to be satisfied that any kissing (particular (d)) had the character of an indecent assault and on the descriptions given by SA, that conclusion is attended by considerable doubt.
I add that the accused ‘grabbing’ SA’s shoulders or touching his legs are not particularised as unlawful sexual acts and without further detail cannot be described as intrinsically sexual acts. Whilst ‘rubbing SA’s thighs’ is particularised (particular (a)), it is not clear whether SA was describing activity that falls within the scope of the particular. Obviously enough, these observations do not apply to SA’s evidence that the accused rubbed his penis (particular (e)) during these episodes.
Once again and because I had a generally favourable impression of SA’s evidence, I am suspicious that some form of inappropriate contact between the accused and SA may have taken place, but I find myself unpersuaded that the prosecution’s heavy burden of proof has been discharged.
In contrast to the matters I have just canvassed, the complainant’s evidence in relation to the ejaculation incident was largely untarnished. His account was, in the main, internally consistent and coherent. The vivid nature of the conduct described by the complainant with respect to this episode bears the hallmarks of a truthful account and, it stood out as the only incident in which SA was masturbated to the point of ejaculation. The inconsistencies relating to this episode are, in my view, of limited significance. As I have earlier said, the inconsistency between ‘sitting’ and ‘laying’ and the addition of detail during his evidence in chief may be reflective of the cursory way in which this incident was explored during the interview, although I acknowledge that SA was, prior to giving evidence, unable to recall much of the contextual detail surrounding this episode.
I formed a favourable view of the complainant’s evidence about this incident.
I have reminded myself that I may accept and reject any part of a witness’ evidence and that my reservations in relation to the reliability of SA’s evidence in respect of the other episodes of alleged abuse does not mean I am precluded from accepting his evidence on the ejaculation incident. However, it is necessary for me to bear in mind the accumulation of frailties in his evidence which I have detailed and their impact on my assessment of SA’s evidence overall.
I have carefully scrutinised SA’s evidence, not only because it is uncorroborated but because of the infirmities in his evidence to which I have earlier referred.
For the reasons I have given, I consider the issues attenuating the reliability of SA’s evidence in relation to the other episodes mean I cannot be satisfied beyond reasonable doubt that this incident occurred as alleged. Had SA’s evidence in respect of this episode stood alone, my conclusion may well have been different because, as I have said, SA’s evidence about this episode did not suffer from the same issues that overlay his evidence relating to the other episodes.
I harbour considerable suspicions that there was inappropriate contact as between SA and the accused in a form generally consistent with SA’s version of events on this episode. Nonetheless, and bringing to account what I consider to be a critical mass of shortcomings in the reliability of SA’s evidence, I am not satisfied beyond reasonable doubt of this allegation.
As I am not satisfied that the accused committed two or more unlawful sexual acts against the complainant, I must find the accused not guilty of the charge of maintaining an unlawful sexual relationship with a child.