R v Dawson - [2023] SADC 162

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DAWSON
Criminal Trial by Judge Alone
[2023] SADC 162
Reasons for the Verdicts of her Honour Judge Fuller
24 November 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND UNLAWFUL SEXUAL INTERCOURSE
Trial by Judge alone following trial in October 2022 - mistrial declared after trial concluded and before verdicts delivered - accused charged with two counts of indecent assault, two counts of unlawful sexual intercourse - complainant was 15 year old sister of accused's girlfriend - complainant and accused had not met previously - complainant stayed the night at accused's unit on sister's invitation after complainant had argument with her father - offending alleged to have occurred at the sleepover in November 2020 in accused's unit on his couch after complainant's sister went to sleep - sister woke up to find accused lying on top of complainant on couch - no complaint to sister made - complaint made to best friend some weeks later - materially inconsistent versions of complaint given by complainant and friend - accused gave evidence on oath at first trial denying the offending - report to police in April 2021, by which time a forensic examination of scene and seizure of clothing determined by police to be of no utility.
Held: Terms of initial complaint materially different from complainant's evidence - proved prior inconsistent statements of complainant on material matters - sister's evidence unreliable - significant forensic disadvantage by reason of delay in report to police - accused's denials on oath could not be rejected - accused's evidence plausible and a reasonable possibility. Cumulative effect of matters gives rise to reasonable doubt.
Verdicts: Not guilty on all counts.
Criminal Law Consolidation Act 1935 (SA) Section 49(3), s 56; Evidence Act 1929 s 13BA (3), 13D, 13D (1)(a)(iv), 34CB, 34M (2); Juries Act 1927 s 7; Summary Offences Act s 74EB , referred to.
R v Cassebohm (2011) 109 SASR 465; R v Maiolo (No 2) (2013) 117 SASR 1; R v W, PK [2016] SASCFC 5; R v R, PA [2019] SASCFC 19; R v P, TJ (2019) SASCFC 114; R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438 ; R v B, AM 2015] SASCFC 174; Patterson v The Queen [2022] SASCA 57; R v Dhir (2019) SASCFC 55, considered.

R v DAWSON
[2023] SADC 162

The accused is charged on Information with the following offences:
First Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Rakaiya Hendrix Dawson on the 22 [sic] day of November 2020 at Royal Park, had sexual intercourse with [HD], a person under the age of 17 years, by inserting his fingers into her vagina.
Second Count
Statement of Offence
Indecent Assault (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Rakaiya Hendrix Dawson on the 22^nd day of November 2020 at Royal Park, indecently assaulted [HD] by causing [HD] to touch Rakaiya Hendrix Dawson’s penis.
Third Count
Statement of Offence
Indecent assault. (Ibid).
Particulars of Offence
Rakaiya Hendrix Dawson on the 22^nd day of November 2020 at Royal Park, indecently assaulted [HD] by pushing her head towards his penis.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Rakaiya Hendrix Dawson on the 22nd day of November 2020 at Royal Park, had sexual intercourse with [HD], a person under the age of 17 years, by inserting his fingers into her vagina.
The plea
The accused pleaded not guilty before me on 6 November 2023 and at his election I heard the trial without a jury. There had been an earlier trial by Judge alone which had concluded but was declared a mistrial before verdicts could be delivered. It is necessary to refer to the previous trial because much of the evidence led at the previous trial was tendered in the trial before me, including the transcript of the accused’s evidence at that trial.
I now publish my reasons for the verdict I am about to deliver.
Elements of the offences
Unlawful sexual intercourse
It is an offence to have sexual intercourse with a person under the age of 17 years. Sexual intercourse is defined as including any activity consisting of or involving the penetration of the vagina, labia majora or anus by any part of the body of another person or by any object.
Indecent assault
An indecent assault is an assault accompanied by, or committed in, circumstances of indecency. The prosecution must prove an assault. An assault is the intentional and unlawful application of force to another. The prosecution must prove the assault was accompanied by, or committed in, circumstances of indecency. There must be a sexual connotation. Whether an assault is indecent is for me to determine by reference to prevailing community standards of what is considered indecent.
Issues in dispute
The issue in dispute was whether any of the alleged sexual conduct in fact occurred. There was no dispute that the accused was an adult, and the complainant was under the age of 17 at the time of the alleged offences. There was no dispute that if the physical conduct the subject of the charges of indecent assault was proved, each was an assault occurring in circumstances of indecency. There was no dispute that if the conduct alleged in counts 1 and 4 was proved, unlawful sexual intercourse would be proved.
General directions
The accused elected for trial by Judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v G,[1] whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in a number of authorities: see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; and AK v The State of Western Australia (2008) 232 CLR 438 per Heydon J.
[1] R v G [2015] SASC 186.
The general directions were summarised by Lovell J in R v G. They are as follows:
As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.
I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.
The accused gave evidence at the earlier trial and a transcript of his evidence was tendered in this trial. In giving evidence, he assumed no onus. His evidence is to be treated in the same way as any other witness in the trial, although I do not have the advantage of seeing him and hearing him give evidence, but I can give him what credit I consider appropriate for adopting a course he was not obliged to adopt.
Overview of prosecution case
In 2020, the accused was living in a unit at Royal Park. He was in a relationship with AC, the older sister of the complainant, HD. HD was born on 17 June 2005 and turned 15 on 17 June 2020.
On Saturday, 21 November 2020, AC picked up HD from HD’s home at Aldinga and drove her to the accused’s unit in Royal Park. HD had had an argument with her father and AC said she could stay the night with her and the accused. HD had not met the accused before this occasion. The accused was 23 years of age.
After arriving at the accused’s unit, AC, HD and the accused were all together, however the accused spent a considerable amount of time playing on a gaming device. Later in the evening, AC went to the bedroom to sleep. Before doing so, she arranged for her sister to sleep on the couch in the lounge and provided her with a blanket and pillow.
HD and the accused then watched a horror movie on Netflix. During the course of the movie, the accused put his hand on her leg (uncharged act) and then put his hand inside her underwear and inserted two fingers into her vagina (count 1). The accused then grabbed HD’s hand and put it on his penis, which he had removed from his shorts (count 2). He removed her hand, but he put it back on his penis. The accused then grabbed the back of her head and pushed it towards his penis; she moved it back (count 3). He said, ‘suck it’. The accused ejaculated and then inserted at least one finger into HD’s vagina for several minutes (count 4). He then said, ‘you’re really hard to finish’. He stopped touching her and said he was going to go to the bathroom.
In January 2021, HD spoke to a friend of hers, RT, about the alleged offending. The matter was subsequently reported to the police. Police arrested the accused on 24 October 2021 at an address at Edwardstown where he was then living.
The evidence
The complainant did not give evidence in the trial before me. Prior to the trial commencing, a joint application pursuant to s 13D of the Evidence Act 1929 (EA) was made by the prosecutor and defence counsel for me to admit the audio-visual record of the complainant’s evidence given at the previous trial. The basis of the application was that the complainant was a vulnerable witness. Neither counsel proposed to adduce any further evidence from the complainant in examination or cross-examination. In considering the application, I have had regard to the terms of s 13D EA and the decision in R v B, AM [2015] SASCFC 174. In that case, Sulan and Peek JJ held:
The legislature has enacted s 13D, amongst other provisions of the Act, which create in-roads into the fundamental right of a defendant to test evidence of witnesses for the prosecution at his or her trial. Section 13D provides, inter alia, that there are circumstances in respect of particular witnesses when the court can excuse that witness from the obligation to give evidence. The court has power to admit the witness’s evidence in an earlier trial to be used as evidence at the subsequent trial. Nevertheless, the discretion is to be exercised having regard to the fundamental rule that juries should be given the opportunity of seeing and hearing the witness’s evidence.
Before a judge exercises his or her discretion to permit evidence of an official record to be given at a trial, the judge must be satisfied that good reason exists, in the case of a vulnerable witness, to permit that witness’s evidence at a previous trial to be used as evidence at a subsequent trial.[2]
[2] [34] – [35].
I was satisfied that the complainant was a vulnerable witness, because she was a witness who was the alleged victim of the offences to which the proceedings related and because of the circumstances of the case she would be specially disadvantaged if not treated as a vulnerable witness. The special disadvantage arises from the fact that the previous trial aborted because the Judge who heard it was, for reasons that are not relevant, unable to deliver a verdict. Further, as neither counsel sought to adduce any further evidence from her, it would be oppressive to require her to attend to give evidence at the second trial. I was satisfied that good reason existed to grant the application and admit the audio-visual record of the evidence of the complainant at the previous trial pursuant to section 13D (1)(a)(iv) EA.
The audio-visual record of the evidence of HD given at the previous trial was tendered by consent: Exhibit P7. I watched P7 and received as an aide memoire, a transcript of her evidence: MFI P7A.
The complainant – HD
At the previous trial, HD gave her evidence remotely and with the assistance of a court companion. The court was closed during her evidence, and it was recorded by audio-visual means. Pursuant to s 13 EA I direct myself that these arrangements do not permit me to draw any inference adverse to the accused and nor do they influence the weight to be given to HD’s evidence.
At the time of giving evidence HD was 17 years of age. She was born on 17 June 2005. She had one brother, J, now 21 years of age and one sister, AC. AC was now 28 years of age.[3] HD left school in year 11. Whilst at school she had a causal job at McDonald’s in Seaford.[4]
[3] T 26.
[4] T 27-28.
HD first met the accused in November 2020 when she was 15 years old. She had an argument with her father, and she then spoke to her sister who picked her up from her father’s house.[5] She had never been to the accused’s place before. She described it as an apartment with a garage at the bottom and stairs up to the top. She went into all the rooms in the house.[6] There was one bedroom with a black queen-sized bed.[7]
[5]     T 28.
[6]     T 29.
[7]     T 30.
There was a balcony outside of the bedroom and a bathroom with a toilet and shower. There was a kitchen and lounge room with a television, L-shaped couch, beanbag, coffee table, Xbox and a tank with a turtle in it.[8] HD identified a plan of the accused’s unit: Exhibit P1. She marked the position of the bed in the bedroom, the kitchen, the turtle tank, the Xbox and the desk with the computer on it and the television. She also marked the position of the couch and the gaming chair.[9]
[8] T 32.
[9] T 34-36.
The accused had a turtle and kitten.[10]
[10] T 36.
HD said she arrived at the accused’s house around 10.45-11.00pm. The first thing she did was pat the cat. She then had a shower. Her sister and the accused then went out for fifteen minutes. The three of them then hung out together. The accused was sitting in the gaming chair playing games on the television. HD also played a game on the X-box.[11]When she was playing on the X-box her sister was on the couch on her phone.[12]
[11] T 37-38.
[12] T 39.
HD said she had some lollies to eat and in the morning they had Hungry Jacks.[13]
[13] T 38.
AC said goodnight to HD and went to bed. She told HD that he was sleeping on the couch. At that time, HD was about 5’1”. The couch was long enough for a person to sleep on it. She had brought a matching set of dark purple-bluey pyjamas. The pyjamas were a pair of shorts and a buttoned-up shirt made of silky material. She could not recall what clothing she had on before she changed into her pyjamas in the bathroom after she got out of the shower.[14]
[14] T 39-41.
When AC went to sleep in the bedroom, HD and the accused watched a movie. HD was wearing black shorts and a striped shirt that had a large hole in it. They watched the movie on the television using the Xbox. The movie was on Netflix. It was a horror movie called Annabelle about a girl who was a doll who was possessed. Whilst watching the movie, she was sitting on the couch and the accused was to her left. She marked their respective positions on P1.[15]
[15] T 42.
HD said that accused was smoking bongs and described him using a glass vase. He did not ask her if she wanted any and she did not have any.[16] HD then described what happened next:
I was watching the movie and I was, like had my hands on my legs and Rakaiya said to me ‘Are you tickling yourself’ and I said ‘No’ and then he got closer to me and he’d like put his hand on my leg and then he’d put his hand down my pants and put his fingers inside me.[17]
[16] T 43.
[17] T 44, 1-5.
HD said his hand was on her left leg and he was to the left of her.[18] She was wearing underwear but could not recall what type. She also had a bra on. She thought he put two fingers inside her vaginal canal. He was calling her ‘hot and pretty’ and things like that. She felt scared. He moved his fingers when they were in her vagina. His fingers were in her vagina for a couple of minutes. He then pulled down his pants and made her put her hand on his penis.[19]At the time he did this, he had taken his fingers out of her vagina. His penis was hard, and she could see it because it was out of his pants.[20] The movie was still playing. She pulled her hand away and he put it back there and said, ‘keep going’. He was moving her hand up and down because he had his hand on her hand. This lasted for about ten minutes. He then tried to push her head towards his penis and was telling her to suck it, but she was just ‘nodding no’. She did not suck his penis. Her face was about 30 cm from his penis. He was holding her head for about a minute and then put her hand back on it until he ejaculated. She did not see him ejaculate but he told her he had. He then put his fingers back inside her and told her that she was really hard to finish. She was not sure if it was a finger or more than one finger.[21]
[18] T 44.
[19] T 46.
[20] T 46-47.
[21] T 48-50.
The accused then got up and went to the toilet. HD stayed on the couch. She felt scared. She then said:
I wanted to tell my sister, but I felt like she wouldn’t believe me that, like, she wouldn’t think that he would do something like that.[22]
[22] T 51, 19-21.
HD said she did not tell her sister the next day because she was scared and after the accused had returned from the bathroom he had whispered in her ear not to tell anyone.[23] He said, ‘don’t ever tell anybody’. Her sister came out of the bedroom and saw him whispering in her ear. This was around 3.30am. HD described what happened:
So she asked him what he was doing because he hugged me and he was whispering in my ear and he said to her that he was just being friendly and trying to make me feel comfortable because I had just had like an argument with my dad.[24]
[23] T 51.
[24] T 52, 30-34.
HD said that the accused was ‘over the top of me’ and she was lying in the same spot on the couch. She had a blanket on her. She then said he was leaning over her. He then went into bed with her sister. HD fell asleep in about twenty minutes. When she woke up the next day her sister gave the accused her phone to order food while she had a shower. She ordered from Hungry Jacks, and it was delivered.[25]
[25] T 52-53.
HD said she was supposed to work at McDonalds but did not. She left the accused’s unit around 3.00pm and went with AC to Marion to do some shopping. She said she never saw the accused again. She did not know why she did not tell her sister what happened when they were at Marion together but then said she was just scared.[26]
[26] T 53-54.
The first person she told about what happened was her best friend RT.[27] This was weeks later at a bus stop in Aldinga. She had known RT all her life because HD’s father worked with RT’s father, and they would always hang out together. They were family friends.[28] RT was a bit younger than her. HD was asked what she told RT:
I told her that something had happened when I stayed at my sister’s boyfriend’s house. She asked what had happened and I told her that he, um, touched me inappropriately and she was like – I didn’t really tell her much detail about it because I was upset about it and I didn’t want to explain it but she was just – I don’t really remember what she said back to me.[29]
[27] T 54.
[28] T 55,
[29] T 56, 26-32.

She told RT because she was her best friend and she trusted her.[30]
Cross-examination
[30] T 57.
HD agreed that she spoke with her sister after she reported the matter to police, and her sister helped her with the dates. She agreed that she was not prepared to give statements to police until her sister was with her. She gave three statements, the first of which was on 16 May 2021. Her sister was with her on that occasion, and it was before this that she had talked with her about the date that she had gone to the accused’s unit. HD denied that AC helped her with the layout of the unit.[31]
[31] T 59-60.
HD denied that she went back to the unit a few days later in her school uniform.[32] HE agreed that she was in the bedroom with AC when AC was having fun with her about the fact that she had a hickey. HD said that was the next morning when they were doing make-up. HD insisted she had not been there a second time. HD agreed that she had said in examination in chief that she had only seen the accused on one occasion.[33]
[32] T 60.
[33] T 61.
HD then agreed that she had seen the accused when her sister and the accused were moving into a unit in Edwardstown in December. When asked why she said she had only seen him once, she said ‘I forgot’.[34]
[34] T 62.
HD said her sister went to bed around 1.45am but she was not sure how she knew that. It was put to HD that the accused was playing on a PlayStation and not an Xbox and she said ‘possibly’. When it was put to her that she was just guessing she became distressed and needed a break.[35]
[35] T 63.
HD agreed that her legs were on the sofa and not the floor and in front of her feet was the television. That was where she was when she was sleeping but she was further up on the end of the couch towards the television when they were hanging out.[36]
[36] T 66.
HD said that the hole in the accused’s T-shirt was a large one and looked like it had been torn.[37] He was wearing this T-shirt when he told her he had ejaculated. He was wearing the black shorts when he told her he had ejaculated. She said she remembered the hole in the T-shirt. She agreed that in her statement to police she did not mention that the T-shirt had a hole in it. She said she forgot about it.[38]
[37] T 67.
[38] T 68.
HD agreed that the film was a ‘random choice’ where the film is selected by the program.[39] She had not seen the film Annabelle before. She agreed that any film could have been selected. She agreed that after AC had gone to bed the accused had asked her if she wanted to watch a movie.[40]
[39] T 68.
[40] T 69.
HD said that the accused put his hand on her leg around half an hour after her sister went to bed, but she was not too sure.[41] It was at the beginning of the movie. HD disagreed with the suggestion that during the course of the movie she became scared and touched him on his right shoulder.[42]
[41] T 69.
[42] T 70.
HD said she changed the movie after the accused had left.[43] She agreed that she had never said that in any of her statements, but it was something she had remembered from that night. She agreed that she had said in evidence that she believed the accused had used his right hand to touch her leg. She was not sure if it was the same hand he used to touch her vagina. She agreed she told police in her first statement that ‘he put his left hand down my PJ bottom short pants’.[44]
[43] T 70.
[44] T 71.
HD agreed that she had said no when asked if the accused had touched her before he had touched her leg. She said this because he had not.[45] HD agreed she told police that the accused ‘grabbed my face and kissed me’. She then said that it was after he touched her leg that he kissed her. She agreed she had not mentioned that when giving evidence but said she had forgotten about it. She denied omitting to mention the kiss because it never happened. She agreed that she said this in her statement:
He grabbed my face and kissed me. I don’t think I kissed him back. He has then put his left hand down my PJ bottom shorts pants and underwear and inserted two fingers inside me.[46]
[45] T 72.
[46] T 73.
HD said that the comments that she was hot and pretty occurred during and after she was touched on the leg.[47] HD agreed that she did not tell police that the accused grabbed her left hand and put it on his penis and that she just referred to her hand. She agreed that in evidence she could not recall the accused saying anything when he was making her masturbate him but told police he said something like ‘why don’t you sit on it?’ or something similar.[48] She then said that he did say those words.[49]
[47] T 74.
[48] T 75.
[49] T 76.
She then agreed that she told police that when the accused was making her masturbate him, he had asked her if she had had sex before. She said she had forgotten to say that in evidence. She agreed that she had said in evidence that the accused had told her to ‘keep going’ but there was no mention of that in her statement.[50] HD agreed that she did not mention in her statement that the accused had told her to ‘suck it’. She did not tell police she had nodded no.[51]
[50] T 76.
[51] T 78.
HD said that her hand was on his penis until he ejaculated but she did not feel any wetness or see any ejaculate.[52] HD said she was lying down when he touched her vagina the second time and that was after he told her he had ejaculated.[53]
[52] T 79.
[53] T 80.
When HD was masturbating the accused, she was sitting with her legs up on the couch. She was sitting when he put his fingers inside her the first time and when he motioned her head towards his penis.[54] She said that after he told her he was finished, she decided to lie down as if she was going to go to sleep.[55]
[54] T 81.
[55] T 82.
HD agreed that she did not tell police in any of her statements that her head was about 30 centimetres from his penis.
HD agreed that the accused had asked her if she was going to be all right and gave her a hug.[56] This happened when he was in the corner of the couch, and she was lying on the couch. He leant over her and gave her a hug. It was at this point in time that AC came into the room. HD said the accused was not lying next to her.[57]
[56] T 82.
[57] T 83.
HD agreed that in her statement of 16 May 2021 she did not tell police that he whispered in her ear.[58] HD agreed that when AC came in she said, ‘what are you doing’ and she told her nothing had happened, meaning nothing had happened between her and the accused. The accused told AC that HD had been upset because of the argument with her father, and that he had given her a hug.[59] HD agreed that what had happened that night with her father was quite upsetting.[60]
[58] T 83-84.
[59] T 84.
[60] T 85.
HD agreed that after AC had come in, she and the accused went to the bedroom and HD stayed there until morning. They had Hungry Jacks via Uber Eats for breakfast and she spent most of the day with her sister. She agreed that she and her sister were very close, and she had been very supportive of HD. She knew that AC had only been with the accused for about a month. After this evening, she saw her sister on numerous occasions but did not mention anything that had happened.[61]
[61] T 86.
HD disagreed with the suggestion that she told RT that she had given the accused a head job. She insisted she had told RT the accused had touched her. She agreed that the first time she told police that she had told RT that the accused had touched her was when the prosecutor had spoken to her on 20 October 2022.[62]
[62] T 87-88.
HD agreed that she worked at McDonalds during the period of the alleged offending and stopped working there in November 2021. She disputed that she told more than one of the girls she worked with that she had given AC’s boyfriend a blow job.[63]
[63] T 89.
HD denied that she had ever told RT that the accused had said words to the effect, ‘if you think you’re smart enough why don’t you suck my dick’.[64]
[64] T 90.
HD denied telling a police officer by the name of Watkins that the accused had pulled down her underwear and PJ bottoms when he inserted his finger into her vagina. She said at no time was her underwear pulled out or down or off.[65]
Re-examination
[65] T 90.
HD said she told her sister nothing had happened because he had told her not to tell anyone and she felt scared, ‘that if I did he was going to do something’.[66] She had told police in her first statement to police that he had told her not to tell anyone and she was scared.[67] HD was ever asked by police how close her head was to his penis.[68]
[66] T 91.
[67] T 91.
[68] T 92.
AC – the complainant’s sister
AC was 29 when she gave evidence. She first met the accused online, on Facebook and they started dating in September 2020. She was living in Christies Beach but would see the accused and often stay overnight at his apartment in Royal Park.[69]
[69] T 18-22.
AC identified a floorplan of the apartment: Exhibit P2. AC said that if she was standing at the top of the stairs the height of the bench that forms part of the kitchen was just above her hips.[70] AC said there was an Xbox and a PlayStation and a gaming chair in the lounge room. The accused would game all the time.[71]
[70] T 23-24.
[71] T 25.
AC drew the position of the table and the couch in the lounge room.[72]
[72] T 27.
AC said her sister, HD, was with her and the accused once in his apartment. She could not recall the exact date, but it was in November 2020. AC explained the circumstances leading to HD being at the unit on that occasion:
She had a little tiff with her father and I explained to Rakaiya because I was at his house that day, that she had a bit of an argument with her dad and he said we should pick her up because he wished he had a sister like me that would be there for her and I picked her up from her dad’s house by myself and then returned back to the unit as I was not staying at my house…
…I just knew she was upset and I thought it would be better for me to take her out of that environment and try put her into a happier one.[73]
[73] T 28, 3-9, 15-17.
AC said HD called her around 3.00pm and she picked her up and returned to the apartment around 6.00pm or 7.00pm. When they arrived, the accused was playing Xbox or PlayStation in his chair. They were watching him whilst sitting on the couch playing with his kitten.[74]
[74] T 29-30.
AC did not see HD play any game and AC did not play any game. The accused put on a movie, and they all watched it, while the accused was in his chair. It was an action movie. They had Hungry Jack’s via Uber eats.[75]
[75] T 31, 33.
After the movie, the accused went back to playing his game and HD was watching him from the beanbag. Around 9.00pm or 10.00pm AC wanted to go to sleep so she settled HD on the couch, gave her a pillow and a blanket and asked her if she was okay. She said yes and then AC went to bed, shut the bedroom door but could still hear the gaming.[76]
[76] T 31.
AC then described what happened after that:
…and then I woke up and I just had an uneasy feeling and there was a bit of noise from gaming but not too much and I got up because the uneasy feeling didn’t go away and I walked into the room and saw Rakaiya on my sister but with the blanket on top of her and him on top of her, hugging her with one arm on the left-hand side…like half of him was on top of her.[77]
[77] T 31, 36-38; T 32, 1-4.
AC indicated that the accused was on top of HD but with her head to his left side.[78] When she had gone to bed HD was in the same position, lying on the side of the couch closest to the kitchen. The couch was smaller than a single bed but enough for someone to lie on it and sleep comfortably. She said two people could lie side by side on it, but they would have to squeeze because it was quite small.[79]
[78] T 32.
[79] T 33.
When AC woke up it was about 3.00am. She said it was a bit quiet at that point, and not as loud as when she went to bed, when the gaming had gun shots and noises like that.[80] When she walked out of the bedroom, she was halfway along the bench in the kitchen, and she could see over the couch and onto the couch.[81]
[80] T 34.
[81] T 35.
HD was lying on her back with her feet closest to the television. The accused’s feet were in the same direction, but he was lying on his stomach. She did not think there was any noise coming from the room at that stage.[82] A little bit of light was coming from the television in standby mode; she could still see but it was not the brightest. There were streetlights that illuminated the unit quite a bit. When she first saw the accused and HD, they were whispering, but she could not make out what they were saying. She thought the accused’s position was unusual and she did not expect to see him in that position with her sister.[83]
[82] T 36.
[83] T 37.
AC marked on P2 the position of her sister and the accused. She could see the back of his head and the left side of his face, but mainly the nose and lips.[84] AC was a few metres away at that point. She was in a bit of shock at first, but them moved towards them and said to the accused, ‘What are you doing’. The accused got up and said he was consoling HD because of the argument she had with her father. He then went to the bedroom. AC then asked HD if everything was okay and if she needed to tell her anything, she could talk to her but ‘she was a bit stand-off-ish and didn’t say anything, she said, okay’’.[85]
[84] T 38.
[85] T 39.
AC said her sister was a bit quiet but said she was okay. AC then went to the bedroom and the accused was in bed. She said to him, ‘what were you doing with my sister?’ and he said, ‘if you think it’s anything else then you’re just stupid’.[86]
[86] T 40.
The next morning when AC woke up around 9.00am the accused was with her. HD was still on the couch. AC described HD as a ‘bit quiet but she was attached to me quite a bit that day’.[87] HD stayed in the bedroom while AC had a shower. The accused was in his gaming chair playing games. AC drove HD home between noon and 2.00pm. HD called in sick for work.[88]
[87] T 40.
[88] T 40-41.
AC had told the accused how old HD was prior to the sleepover.[89]
[89] T 41.
AC said her relationship with the accused ended just before Christmas 2020.[90]
Cross-examination
[90] T 28.
AC said that she and HD had the same mother, but different fathers. HD stayed mostly with her father.[91]
[91] T 42.
AC spent most of her time at the accused’s unit rather than her house at Christies Beach. After the night when HD stayed over, AC decided to move in with the accused in another unit at Edwardstown. The accused moved out of the Royal Park apartment in December 2020. They had not lived together there for a month before the relationship ended.[92] AC rejected the suggestion that HD returned to the apartment in Royal Park a second time a few days after the sleepover. AC said HD visited her at the Edwardstown after they had been on the train together. She only came in for ten minutes so she could put all her shopping in bags and then AC took her home. The accused was home, but he was in another room. He saw HD. It was on this occasion that AC was making fun of HD for having a hickey on her neck.[93] The accused was present when this conversation occurred.[94]
[92] T 43.
[93] T 44.
[94] T 45.
Before HD went to the Edwardstown unit, AC had told HD that she was moving in with the accused.[95]
[95] T 45.
AC rejected the suggestion that HD had a big argument with her father prior to the sleepover at Royal Park. AC said when HD called her, she was crying and asked her if she could have a sleepover because she did not want to stay where she was.[96] When AC picked up HD her mood had picked up a little bit.[97]
[96] T 47.
[97] T 48.
AC agreed that at the previous trial she had said that the argument between HD and her father was ‘just a once out of the blue moon’.[98] AC said that when she picked up HD she was not crying but was more excited to see AC and be staying with her. AC agreed that the two of them were very close. Their mother lived at Seaford.[99]
[98] T 48.
[99] T 49.
AC agreed that the accused was wearing headphones when he was gaming, but she could still hear noise through the television. He spoke to HD a little bit ‘here and there’ but the majority of the time he was gaming.[100] She and the accused did not leave the unit that evening. AC could not recall having breakfast the next day.[101]
[100] T 50.
[101] T 52.
When the three of them were watching a film HD was on the beanbag, the accused was in his gaming chair and AC was sitting on the couch. AC agreed that at the previous trial she was asked whether anyone watched a film in the lounge room prior to her going to bed and she had said, ‘I’m unsure but might have, but I can’t be a hundred percent guarantee’. AC said that she now remembers that it was an action movie and where everyone was sitting. She said she had to go to counselling to remember a lot of things.[102]
[102] T 53.
AC could not recall when the movie finished, but she just recalled going to sleep around 9.00pm or 10.00pm. AC agreed that at the previous trial she had said she went to bed ‘probably around midnight’.[103] She denied that she was guessing the time but said that she assumed it was between 9.00pm and 10.00pm.[104]
[103] T 53.
[104] T 54.
When AC left HD, she was lying flat on her back on the couch and was on her phone. The accused was in his gaming chair.[105]
[105] T 55.
AC denied that the accused had come into her room at any time before she got up to go into the lounge room.[106] She agreed that when she was asked the same question last time she said, ‘I don’t remember’. She said that this was because she was really upset and did not have a straight head.[107] She agreed her evidence had changed and said that she would have woken up if he had come into the room because she was a light sleeper.[108]
[106] T 56.
[107] T 57.
[108] T 57-58.
AC confirmed that when she came out of her bedroom, she heard whispering. She agreed she gave a statement to police on 1 August 2021. She agreed she did not mention in that statement that she heard whispering.[109] She said it was something which she now recalled. She could not tell whether it was her sister, the accused or both of them whispering.[110]
[109] T 59.
[110] T 59-60.
AC rejected a suggestion that the accused was bending over from a standing position giving her sister a hug.[111] AC was shown the floorplan she drew on 1 August 2021 when she gave her statement to police: Exhibit D8. She agreed that she had drawn the accused on the opposite side of the couch to where she had drawn him in P2. She agreed that in the position she had drawn him in D8, he would have had to clamber over the couch to get off. She denied that she was uncertain about what she had seen.[112] She denied that she was downplaying the argument as only a tiff.[113]
[111] T 61.
[112] T 63-64.
[113] T 64.
AC agreed that she could not say whether, after leaving the loungeroom, the accused went into the bathroom or the bedroom. She could not recall if HD had her phone at that point.[114] AC agreed that in her statement of 1 August 2021, she told police that after she had gone into the lounge room, the accused got up and went to the bathroom.[115] She also told police that, ‘Rakaiya came out of the bathroom and we both went to the bedroom and left [HD] on the couch’. She said she probably remembered a bit more then than she does now.[116]
[114] T 67.
[115] T 68.
[116] T 69.
Detective Brevet Sergeant Kylie Ann Evans
In August 2021, Detective Evans was a prescribed interviewer for the purposes of s 74EB Summary Offences Act. She interviewed RT on 20 August 2021. That interview was tendered: Exhibit P3. A transcript of the interview was marked for identification: MFIP3A. The interview was admitted pursuant to s 13BA (3) of the Evidence Act 1929. I was satisfied that the statutory conditions for the admission were met, in particular, s13BA (3)(b) EA.

In considering the answers of RT in the prescribed interview, I have not drawn any inference adverse to the accused from the form of this evidence, nor have I allowed it to influence the weight to be given to the evidence.
RT – prescribed interview
In the prescribed interview, RT said she had known HD all of her life and grown up together. Although they had never gone to the same school, they kept in contact and would hang out all the time and talk to each other about things that happened to them. She said that one day, they were walking to the bus stop from her house going to RT’s house. HD was quiet and RT asked her if anything else had happened. She said something had happened with somebody and then started crying. RT then said this:
…she was like, I haven’t told anyone this yet, but I’m going to tell you and so it started off with she had a fight with her dad and then she so yeah her and her dad got into an argument at night time and she got picked up by her sister and her sister lives kind of far away and then she was, she went to her sister’s and her sister’s like, I don’t think they were actually dating but they were kind of like I don’t know what was going on there, but it was like her sister’s boyfriend kind of and then [HD] went to her sister’s house for the night and then they and then I think her they her, they all sat down to watch a movie and her sister went off to have a shower and then [HD] and the guy were like on the couch or something and then I don’t remember what she said, I think she just said that he came over to her and like forced himself onto her and then yeah that’s kind of all I remember.[117]
[117] P3, page 6.
RT then said that HD told her that they were in the lounge room when they were watching the movie, and they were sitting on a couch. HD had pyjamas on. When asked whether HD actually said he forced himself on her, RT explained:
No, she basically just said that um he like made her blow him off, but yeah like give him a head job.[118]
[118] P3, pages 8-9.
RT was asked what ‘blow him off’ meant and she said, ‘it’s like oral sex…like he forced her like mouth…onto his area…on his penis’. HD did not give any further detail but asked RT not to tell anyone.[119]
[119] P3, pages 10-11.
The transcript of her evidence was tendered through Detective Mothersole: Exhibit P9.
RT – evidence given at the previous trial
RT was produced for cross-examination at the previous trial.
RT said HD was working at McDonald’s in 2020. HD was at RT’s house one day and she got really upset and had a panic attack, went for a walk and then was picked up by her mother. RT said that HD told her one night she was drunk, and she was in the car with her friends from McDonalds and she told them that she did ‘blah blah blah with my sister’s boyfriend’. HD’s friends then said, ‘oh my god that’s so low’. HD told her that she had said to her friends, ‘I sucked off my sister’s boyfriend’. HD told RT that she and the accused were sitting on a couch watching a movie while her sister was in the shower. RT said she was pretty sure HD then said that the accused had said something along the lines, ‘if you think you’re that smart why don’t you suck my dick’.[120]
[120] T 136-145.
Detective Brevet Sergeant David Michael Mothersole
Detective Mothersole confirmed that RT gave evidence in the previous trial. He arrested the accused on 24 October 2021.[121] The matter was reported on 24 April 2021 at 11.42am. Detective Watkins was involved in the investigation before he took it over. She spoke with HD on 16 May 2021. Detective Mothersole said that this was recorded in a police occurrence report which is a summary of the information received by the officer. It is intended to provide any other person who reviewed the report with an overview of what that witness had to say.[122]
[121] T 79.
[122] T 81-82.
Detective Mothersole became involved in the matter on 14 June 2021. He did not arrange for a crime scene examination of the accused’s previous address at Royal Park. He did not do this because the alleged offending had occurred some six or seven months earlier and he did not consider there would be any value in such an examination.[123] It was for the same reason that he did not seize any clothing from HD or the accused.[124]
Cross-examination
[123] T 82.
[124] T 83.
Detective Mothersole confirmed that he was aware that there was an allegation of contact by the accused inside HD’s underwear that would potentially yield contact DNA. He was also aware that there was an allegation that ejaculation had occurred. Ejaculation could be confirmed by a crime scene examination of clothing, sofa and bedding.[125] However, he was of the view that there was no utility in seizing clothing or examining the premises because of the time lapse.[126]
[125] T 83.
[126] T 84.
The accused’s evidence at the previous trial
By consent, the accused’s evidence at the previous trial was tendered: Exhibit P10. A summary of his evidence follows.
The accused was 25 years of age when he gave evidence. When he was living in a townhouse in Royal Park, he was an apprentice pipe layer.[127] He was also studying a Diploma in Community services as a bridging course for a Bachelor in Social Work. At the time he gave evidence, he was still studying but had completed his apprenticeship. [128]
[127] T 150.
[128] T 150-151.
He lived at Royal Park for a year before moving to Edwardstown on 1 December 2020.[129] He said the floorplans of the address were pretty accurate. He had moved there with his ex-girlfriend and signed a lease together. When that relationship ended, and he started a relationship with AC, he was living there by himself, but AC was there most of the time. He started an intimate relationship with her in September 2020, but had known her since 2018.[130]
[129] T 151.
[130] T 152.
The accused had met AC’s grandfather and sister, HD. He first met HD when she came to his house in Royal Park. He was told that there was a huge argument between HD and her father and AC made it sound really bad and asked if she could go and get her and make sure she was safe and had somewhere to go. The accused said he was not sure if she was coming back to his place or going to AC’s house. He was aware that AC had a sister but was not aware of her age.[131]
[131] T 154.
AC left and returned about three hours later with HD. He could not recall the time because he was playing games on his PC. He had a gaming chair and was wearing a head set that confined the sound and audio to his ears. He said the headphones allowed him to communicate and game ‘better’.[132]
[132] T 155.
When the accused first saw HD she seemed upset and quiet.[133] She had clearly been crying; her eyes were red, and her face was puffy. She did not really say anything to him when she first got there and was looking down. He did not say anything, he just ‘let them have family time’. AC and HD were sitting on the couch. He did not leave the house the entire night. He did not recall if anyone had a shower.[134]
[133] T 155.
[134] T 156.
AC went to sleep first but he could not recall the time. Before she went to bed, she got a spare blanket out of his bedroom and gave it to HD to sleep on the chaise. He said the couch had a long part and a shorter part which was the chaise. The bottom of the longer part of the couch was near the turtle tank.[135] HD was on the corner with her legs to the television and had the blanket on her. He could not recall what she was wearing. After AC went to bed, he continued gaming but became tired and he then asked HD if she wanted him to put on a movie for her. He then put on a random selection. Prior to that HD had been watching him and was on her phone. He asked her if she wanted to watch a film because she was still awake and he did not want to turn everything off and leave her in the dark.[136] She said, ‘yes please’ and he switched over to Netflix and picked the Surprise Me option. He thought the film ‘Annabelle’ came on. It was a horror movie.[137]
[135] T 157.
[136] T 158.
[137] T 159.
When the accused put on the film, he was still in his gaming chair, but he moved onto the couch. He was about a shoulder’s length away from HD. They watched the film for about 30 minutes. During some of the scenes, HD reached out and touched his shoulder. He did not think this was intentional but was just a fright, a ‘jump scare’.[138]
[138] T 159.
When they were watching the film, HD had the blanket on her and he could not see what she was wearing. The only light was from the television although the blinds did not fit the window properly so there were some little beams of light that came through.[139]
[139] T 160.
After thirty minutes, he went to bed because he was tired. He said to HD, ‘I’m going to go to sleep’. The movie was still on.[140] When he lay down on his bed, he realised he had forgotten his phone. AC was asleep on the right side of the bed. There were no lights on in the room.[141] He grabbed AC and got into a spooning position, and she snuggled back to him but did not say anything to indicate she was awake. He usually put his phone on the charger on the bedside table next to his bed. He realised he did not have it when he went to watch TikTok’s.[142] He went back out to get it and HD was still sitting on the couch with her phone on, but the television had been turned off. He reached on the couch to try and find his phone. HD looked upset still and had a puffy face and did not seem quite right. He asked her if she was okay. She gave him a ‘yeah answer’ as if she did not want to talk. The accused explained:
Then I walked over to the corner where she was sitting, so like where the coffee table kind of meets the couch. I walked over there, and I was, like, gave her over the shoulder a little pat. Gave her an over the shoulder pat and said, ‘Hope you’re going to be okay’ and then [AC] came out.[143]
[140] T 160.
[141] T 161.
[142] T 162.
[143] T 161, 15-20.
When he approached the couch, he went around the coffee table. He found his phone pretty much straight away. At that time, HD was half lying down, half sitting up backwards to the cushion and the rest of her body was on the chaise lying down. He was asked to describe the ‘pat’:
It was sort of like an awkward hug because I didn’t want to jump in there and give her a big bear hug. It was like an over the shoulder pat I guess…So like my left arm I reached down and kind of put it, yeah, around her shoulder, patted her other shoulder.[144]
[144] T 163, 27-32.
He had to lean down to do this.[145] His feet stayed on the ground when he did this. He did not get onto the couch at any point. When AC came in, he was probably still giving HD a hug and he was side-on to AC. AC said, ‘what are you guys doing’. He said AC sounded normal as if she was asking why he was awake.[146] He said he was looking for his phone and making sure her sister was okay. AC did not really say anything, but the accused said, ‘you should stay out here and check on her'. HD did not say anything. He left them to talk in private and went to the bedroom, put his phone on charge and lay in bed. AC came in about a minute later and they cuddled and went to sleep.[147]
[145] T 163.
[146] T 164.
[147] T 164-165
The next day he gamed again. He used to do it to make money during COVID.[148] The next day AC was tidying up and HD was on the couch behind him. AC and HD went out in the afternoon, but he did not know where they went, and HD did not come back. He saw her again a few days later when she returned to his house around 5.00pm or 6.00pm with AC. He said that AC was ‘kind of giving a little bit of shit for having hickies all over her neck’. At the time this was said, he was lying on his bed watching TikTok’s and they were on the end of the bed. They stayed for about an hour.[149] HD was wearing a school uniform.[150]
[148] T 165.
[149] T 166.
[150] T 167.
He saw HD again on the second day after he had moved into the Edwardstown unit. She hung out with them when they were unpacking and getting everything set up. He and AC signed the lease on 1 December 2020 and moved in on 3 December 2020. He did not pay much attention to HD on this occasion, and she stayed for only a few hours. He did not see HD again because about three weeks later the relationship with AC ended.[151]
[151] T 167.
The allegations were put to the accused, and he denied them and said there was no sexual contact between them at all.[152]
Cross-examination
[152] T 168.
The accused agreed that he was tired at the time he put the film on for HD to watch. He was still tired when he watched the movie for half an hour. He thought the movie started off well. He had not sat on the couch with HD until he put the movie on.[153]
[153] T 169.
The accused said that he continued until he stopped when he was tired. He said he interacted with HD a little bit, because:
…when you die you are pretty much dead for the whole rest, remaining of the game and you go back to a lobby and you have to wait for a new game to take place, so during those pause moments I would take my headset off and join in the conversation I guess.[154]
[154] T 170, 24-29.
He was part of the conversation when HD spoke about the argument, and he also spoke about his cat or just random things. HD was asking her about the game he was playing, thanked him for letting her come over. They just had random normal typical conversation of the type people who have just met have.[155]
[155] T 170-171.
When HD touched him momentarily during the movie he laughed. She did not appear upset or distressed and was not crying during the thirty minutes they watched the movie together.[156] The accused said he could not have watched the film from his gaming chair because it was in front of the television and there was nowhere to put it where you could have a view of the television without being side on.[157]
[156] T 172.
[157] T 172-173.
The accused did not agree with the proposition that AC had told him how old HD was. He knew she was younger than AC but did not have any idea how old she was. She was clearly younger than AC. He did not think she was attractive and said he was in love with her sister.[158]
[158] T 174.
The accused said that HD had the bed in the wrong position on P1 and it was on the side where the air conditioner was. HD had marked the tank next to the desk, but it was slightly further down towards the words, ‘upper level’ on P1. The couch was against the wall and the turtle tank was in front of the armrest. He agreed that her description of the gaming chair, including colour, was correct. He denied having an Xbox; he had a PC and a PlayStation.[159]
[159] T 176.
The accused could not recall whether he had a pair of black shorts in 2020.[160] It was possible that he had a striped T-shirt but not one with a hole in it. He said:
ANo I don’t, I don’t really present myself with clothes that have rips and stuff in them, I like to present myself nicely.
HIS HONOUR
QNot even when you’re around the house.
ANo. I still wear like baggy T-shirts and stuff, but I don’t wear clothes with holes in them and stuff.[161]
[160] T 176.
[161] T 177, 12-18.
He agreed that he did not get dressed up because HD was coming over. He agreed that he had previously smoked cannabis, but he quit in 2020 and he was not sure if he had smoked the night HD came over.[162] It was possible that he did. When he smoked cannabis, it made him feel tired and relaxed. He denied that it made him do things he would not do if he was not smoking cannabis.[163]
[162] T 177.
[163] T 178.
The accused said he did not know what time AC went to bed or when he went to bed, but he did not think it was as late as 3.00am or 3.30am.[164] He said he never stayed up that late. He agreed that the movie Annabelle was a horror movie about a doll that was possessed and had supernatural powers. It was not his sort of film; he liked superhero movies. He said he would never have sat in the beanbag because he hated it, and it was ‘more for looks’.[165]
[164] T 178.
[165] T 179-180.
The accused said he did not go to the toilet before he went to bed.[166]
[166] T 180.
He did not think HD was really scared of what was in the film and did not think it was something she should not be watching. She seemed to want to watch it.[167] He was using his phone a little bit when he was watching the movie. When he decided to go to bed he did not say goodnight but just told HD that he was going to bed.[168]
[167] T 180.
[168] T 181.
The accused said that every time he was in bed, he watched TikTok’s, and he wanted to do that even though he was tired.[169] He agreed that he had only left the loungeroom for one or two minutes before returning to look for his phone. HD had not seemed upset during the film but when he returned, she was upset with a puffy face.[170] He could see that because her phone lit up her face.[171]
[169] T 182.
[170] T 182.
[171] T 183.
The accused was asked to demonstrate how he patted her on the shoulder and demonstrated by standing up, leaning forward at the waist and made a patting motion with his right arm.[172] He said it was just one pat. He did not hug her, which he understood to be grabbing someone and squeezing tightly. He agreed that he had said AC came in when he was returning from the hug but said that there were different forms of hugs that you give to people. He was referring to the friendly trying to cheer up a person hug.[173] His hand did not touch her torso, but he said he gave her a shoulder hug. He said:
I don’t know how to explain it in literal terms, what you would call it. I would be referred to as a hug but not a close hug, sort of like a stranger hug.[174]
[172] T 183.
[173] T 184.
[174] T 185, 4-6.
The accused denied whispering to HD or making up a story about losing his mobile telephone. He said the blinds were always closed because people walking past could see into his unit from the sidewalk.[175] The allegations were put to the accused, and he denied them unequivocally.[176]
[175] T 186.
[176] T 187-189.
Agreed facts
A statement of agreed facts was tendered: Exhibit P11. The following facts were agreed:
1.   Rakaiya Hendrix Dawson was born on 20 January 1997.
2.   [HD] was born on 17 June 2005.
3.   [HD] first reported the matter to police at the Christies Beach Police Station on 24 April 2021.
4.   [HD] attended at the Sturt Police Station on 16 May 2021 and spoke with a police officer, Brevet Sergeant Katie Watkins, commencing at 10.00am.
5.   [HD] provide an affidavit to Brevet Sergeant Watkins which was affirmed on 16 May 2021.
6.   At 2.11pm on 16 May 2021 Brevet Sergeant Watkins made typed entries in a police occurrence report that was save electronically. The entries included the following:
“After about 30 mins the male started to touch the victim’s leg, he then kissed her on the lips and pulled out her underwear and pj bottoms, placing 2 fingers inside her”.
7.   The affidavit [HD] affirmed on 16 May 2021 does not make reference to her underwear or pyjamas being pulled out.
The defence case
The accused did not give evidence or call evidence in the trial before me. I draw no adverse inference against him for exercising his right to remain silent. I note of course that he gave evidence in the previous trial and that evidence was tendered in the prosecution case. I will treat his evidence in the same manner as the evidence of any other witness in the case. I can give him credit for adopting a course he was not obliged to adopt when he decided to give evidence.
Although I did not see or hear him give evidence, I am nevertheless obliged to evaluate his evidence in the same way as if he had given evidence before me. The only advantage that I do not enjoy, is the advantage of an assessment of his demeanour in the witness box. That is the product of the fact that I presided over a re-trial following a mistrial. I have been careful not to let the fact that I read a transcript of his evidence rather than watching and listening to it influence the weight I attach to his evidence.
Closing address
Prosecution submissions

Mr Allen said that it would be appropriate for a significant forensic disadvantage direction to be given because of the delay between the report and allegation resulting in loss of the opportunity to examine the scene and clothing.
Mr Allen then said that there were six factors I should consider in my evaluation of the witnesses, and, in particular, HD:
1.The intrinsic likelihood of the witness’ account.
2.How the witness stood up to the test of cross-examination.
3.How the evidence of the witness fits in with the other evidence considered to be convincing.
4.How the evidence of the witness does not fit in with the other evidence considered to be convincing.
5.Whether the account of the witness was plausible.
6.Whether the account of the witness was implausible.
Mr Allen said there are many understandable reasons why a witness may have a less perfect recollection of events. With respect to HD, those reasons included the two years that had elapsed between the events and the first trial, her age, and that she was a child when she gave evidence. Defects in recollection do not necessarily mean a witness is untruthful.
Mr Allen said that the prosecution case was principally, but not entirely, based on the evidence of HD and therefore I must scrutinise her evidence with care. The critical factual issue was whether her version of events of what occurred on the couch has been proved beyond reasonable doubt. If it had, then each of the offences will have been proved beyond reasonable doubt.
Mr Allen described HD’s presentation as genuine and unrehearsed. She did not engage in reconstruction and the examples of this were that she could not recall which hand the accused put down her pants, that the accused ejaculated but she did not feel any wetness and she was unsure if the accused put more than one finger in her. Mr Allen said she was a frank witness who conceded she had forgotten that she had been to the accused’s home at Edwardstown and that she forgot to mention he had kissed her before putting his hand down her pants. In other words, she did not obfuscate when those matters were put to her in cross-examination.
Mr Allen said her description of the accused saying she was ‘hard to finish’ was compelling.
Mr Allen then addressed the complaint evidence. He said that it was entirely understandable that HD told her best friend what had happened. He conceded that RT’s account was inconsistent with HD’s account and referred to a sexual act that was not alleged by HD, fellatio. Mr Allen said there was a possibility that RT had conflated what she was told (an attempt at fellatio) with fellatio. Mr Allen then suggested that what RT said in the interview may not have been a reference to fellatio rather than an attempt at fellatio. He conceded that if I found that RT was relating a complaint that involved a complaint of fellatio then HD told RT something that in evidence she said did not happen. That would adversely affect her reliability.
Mr Allen said there was some support for HD’s account in the evidence of AC. AC found the accused and HD in very close proximity in a compromising position in darkness at a time when the accused would think AC was asleep. Mr Allen conceded that AC’s description of the accused lying on top of HD but off to the side was inconsistent with HD’s account of the physical interaction but said that I should find that she did see them in a compromising position. He accepted that her evidence was also consistent with her seeing her sister and the accused in what she perceived to be a compromising position. Mr Allen agreed that in order to find that AC’s evidence supports HD’s account I would have to accept that she was mistaken about the precise positions of the accused and HD. Mr Allen conceded that if I found AC was mistaken in what she saw, her evidence would fall to one side, and I could not rely on it as corroborative of HD’s account.
Mr Allen then identified 10 particular items of evidence where I might find there was a prior inconsistent statement by omission or commission. They were as follows:
1.The hole in the accused’s T-shirt.
2.Watching another movie after Annabelle.
3.The hand the accused used to put down HD’s shorts.
4.The accused kissing HD.
5.The hand the accused took to put on his penis.
6.The accused saying ‘why don’t you sit on it;
7.The accused saying ‘keep going’ when she is masturbating him.
8.The accused saying, ‘suck it’.
9.The omission from her statement of HD’s head being 30cm from the accused’s penis.
10.The accused whispering in her ear.
Mr Allen said there were reasonable explanations for the inconsistencies. For the hole in the T-shirt, it was not surprising that further detail emerged in her examination in chief. For the changing of the movie, it is not surprising that a child complainant might not recall the precise sequence of events such as that. For the failure to remember which hand the accused put down her pants, she simply could not recall and did not guess. For the failure to mention in evidence in chief that the accused kissed her, that was a potential weakness, because the sequence of sexual contact was important, but Mr Allen said HD may have been more focussed on the touching which was more significant than a kiss. With respect to the things HD recounted were said by the accused (why don’t you sit on it, suck it, keep going) they were not inconsistencies but matters that emerged during cross-examination. For the failure to tell police that her head was 30 centimetres from the accused’s penis, HD said she was not asked that by police. For the evidence that the accused was whispering to her, that was simply further detail that emerged in examination in chief.
Mr Allen argued that on a fair reading of the accused’s evidence, he had distanced himself from the allegations and tailored a version of events to downplay his interactions with HD. In particular, the accused’s description of a pat on the shoulder developed into a form of a hug and this was evidence he had to give to explain the compromising position in which AC found him. The accused had an opportunity to commit the offences and takes advantage of this by putting on a film and sitting next to her. Mr Allen accepted that the behaviour of the accused was risky, given he had never met HD and had no reason to think she would not complaint to AC. In conclusion, Mr Allen said that HD’s account of what happened after that had a ring of truth to it and I should accept it and find the charges proved beyond reasonable doubt.
Defence closing submissions
Mr Kalali identified four central features of the evidence that gave rise to a reasonable doubt about the allegations:
1.The initial complaint reflected adversely on HD’s credibility.
2.AC’s evidence was inconsistent with HD’s evidence on material matters and was unreliable.
3.HD’s evidence was undermined by a number of prior inconsistent statements on material matters such that her credibility and reliability was adversely affected.
4.The accused gave evidence on oath and there was no basis to reject his denials.
Mr Kalali said HD was a complainant who told stories.
Mr Kalali referred me to Patterson v The Queen [2022] SASCA 57 at [47] on the issue of forensic disadvantage. He emphasised that the issue of forensic disadvantage relates only to the accused and not the complainant, notwithstanding that a delay may explain errors or inconsistencies in a complainant’s account.
Mr Kalali referred me to R v Dhir (2019) SASCFC 55 for the proposition that s 34M (2) EA does not prohibit the making of a submission that, in scrutinising the plausibility of a complainant’s account, the trier of fact is entitled to have regard to the riskiness of the behaviour or the opportunity that the complainant would have had to immediately complain of an accused’s behaviour, irrespective of whether a complaint was or was not made.
Mr Kalali argued that the accounts of RT and HD regarding the initial complaint are irreconcilable. RT was clear that HD told her she had performed oral sex on the accused, and I could not find that she had conflated what she was told. This was a material inconsistency and reflected adversely on her credibility. It was an example of her capacity to tell stories.
Mr Kalali provided a two-page table setting out the inconsistencies in HD’s account. The first page detailed inconsistencies that related to more peripheral matters and the second page detailed inconsistencies that were material. The material inconsistencies were the ones listed by Mr Allen and which I have already summarised. Mr Kalali argued that HD was unlikely to have forgotten the fact that she saw the accused a second time. There were glaring inconsistencies between HD’s account of the timeline of events and her sister’s account. Mr Kalali said that HD was 17 when she gave evidence, and therefore the allowance I might be prepared to make for her youth necessarily diminished when compared to a very young child complainant.
Mr Kalali emphasised that the inconsistent accounts of HD regarding which hand the accused put down her pants was material because it related to the logistics of what occurred and as this was an isolated occurrence of offending, it was not a situation where a complainant could not be expected to remember this level of detail.
Mr Kalali said there was no plausible explanation for HD’s failure to mention in evidence that the accused kissed her when that had been part of her account to police. This was indicative of a false narrative and not the recollection of actual events.
Mr Kalali emphasised the implausibility of HD’s account that after the accused told her he ejaculated she lay down on the couch and then he digitally penetrated her. HD did not tell police the accused whispered in her ear and yet she and AC gave evidence of whispering. Mr Kalali said this may be suggestive of collusion.
Mr Kalali said that the accounts of AC and HD were inconsistent. AC gave different accounts of where the accused was lying on the couch in evidence and to the police. That made her intrinsically unreliable in her recollection of what she saw when she came out of the bedroom and into the lounge room. At no point did HD suggest in evidence that the accused was lying on top of her. She said he gave her a hug which was consistent with the accused’s evidence.
Mr Kalali said that HD’s account of her initial complaint was devoid of detail, other than an allegation that the accused touched her. HD denied making a complaint to RT in the terms described by RT in her interview namely that she gave the accused fellatio and that he had said ‘if you think you are that smart why don’t you suck my dick’. HD denied relating to RT that she told her friends at McDonald’s she had given her sister’s boyfriend oral sex. Mr Kalali said that if I accepted RT’s evidence of what she was told I could not use it testimonially and, if I was satisfied it was inconsistent, it could not be used to bolster HD’s credibility, citing Nicholson J in R v P, TJ (2019) SASCFC 114.[177]
[177] [35] – [37].
Mr Kalali argued that AC was clearly biased towards HD, and this came out in her evidence. He urged me to reject her evidence as unreliable, leaving me with HD’s evidence and the accused’s evidence on disputed matters.
Mr Kalali then addressed the accused’s evidence. He said that his evidence of seeing HD’s face lit up by her mobile phone, realising she was upset and giving her an awkward hug had the ring of truth about it. Mr Kalali argued that the accused was at a significant forensic disadvantage in defending the allegations because the delay in the making of the complaint led to the loss of evidence that might have exculpated him. The accused’s account was not shaken in cross-examination and no inconsistencies were established.
Mr Kalali reminded me that the evidence of the consumption of cannabis and the accused’s admission that he may have consumed some, when coupled with his denial that it made him disinhibited, was irrelevant. There was no evidence from which I could infer that it influenced his behaviour.
Mr Kalali ended his submissions by saying that the cumulative effect of the deficiencies and inconsistencies in HD’s account together with the intrinsic unlikelihood of her account that the accused would determine to perpetrate serious sexual acts upon his girlfriend’s younger sister, whom he had just and with whom he had very little interaction should leave me with a reasonable doubt about her account.
Preliminary observations
The case for the prosecution rests principally upon the evidence of HD. If am not satisfied beyond reasonable doubt of the credibility and reliability of her account of the alleged offending the verdict on each charge must be not guilty. It is my task to determine whether the prosecution has proven the accused’s guilt on each charge beyond a reasonable doubt based on the whole of the evidence. The whole of the evidence includes the accused’s evidence.
There is no doubt that the accused had the opportunity to commit the offences with which he has been charged, however the only evidence capable of proving that he did so is the evidence of HD. There has been no admission made by the accused. It is necessary to conduct a careful assessment of both the credibility and reliability of each of the witnesses, but particularly HD, given that both her reliability and credibility were in issue. I have carefully scrutinised HD’s evidence.
Significant forensic disadvantage
In evaluating the evidence in the prosecution case, I have considered the question of forensic disadvantage. Although s 34CB EA does not apply to a trial by Judge alone, the question must still be considered if the circumstances warrant it.
The issue of significant forensic disadvantage as referred to in s 34CB EA was considered by the Court of Appeal in R v Cassebohm,[178] R v Maiolo (No 2),[179] R v W, PK[180] and in R v R, PA.[181] In R v Cassebohm, Doyle CJ said:
I consider that it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that that is so.[182]
[178] (2011) 109 SASR 465.
[179] (2013) 117 SASR 1.
[180] [2016] SASCFC 5.
[181] [2019] SASCFC 19.
[182] [30]
These factors reduce the accused’s ‘ability to effectively conduct his case including to cross-examine the prosecution witnesses in a way so as to cast doubt upon issues of credibility and reliability.’
I am satisfied that the accused has suffered a significant forensic disadvantage by reason of the absence of evidence of any seizure and examination of his clothing, HD’s clothing and the furniture and bedding in his Royal Park unit. The delay in making the report to police led to a decision by police not to conduct any such examinations. Whilst I am not critical of that decision and accept the explanation for it, in the circumstances of this case, such an examination is likely to have assisted the accused to defend the charge. I will take into account this disadvantage when evaluating the evidence of HD, particularly with respect to her allegations that he penetrated her vagina with his finger and told her he ejaculated.
Initial complaint
There is evidence of an initial complaint. The evidence of HD that she made a complaint to RT was supported by the evidence of RT and was not challenged. Pursuant to s 34M EA, I have used the fact of the complaint for the limited purpose of understanding how the matter first came to light. I find that HD complained at a time and to a person I would have expected her to complain. She said the complaint was made ‘weeks later’ and likely at a time when AC was still in a relationship with the accused. In those circumstances, HD may have been reluctant to tell AC. She said she was scared to do so.
Complaint evidence may be used to demonstrate consistency of conduct of a complainant such that it buttresses her credibility because of the circumstances in which she made the complaint and its content and any consistency between it and her evidence about the relevant events. It cannot be used for testimonial purposes. If the contents of the complaint are inconsistent with the complainant’s testimony, that inconsistency can be taken into account in evaluating the complainant’s evidence, either as to reliability or credibility or both.
In this case, it is necessary to consider whether (a) there is a conflict in the evidence of RT and HD regarding the contents of the complaint and (b) if so, whether that conflict can be resolved and (c) if it can, whether it should be resolved in favour of an acceptance of the account given by RT or HD. That is a matter to which I will return.
Findings of fact on undisputed or unchallenged evidence
I find the facts in P11 proved beyond reasonable doubt.
I make the following findings of fact:
1.In November 2020, HD was living with her father most of the time. She was 15 years of age and still at school. She had a part-time job at McDonald’s Seaford. She had a half-sister, AC who was about 12 years older than her.
2.In November 2020, the accused was living in a unit at Royal Park. AC was not living with him but stayed overnight regularly. On 1 December 2020, he signed a lease with AC for a unit at Edwardstown. She lived there in December 2020 until their relationship ended at some point before Christmas 2020.
3.Exhibits P1 and P2 (excluding the markings placed on them by HD and AC) are an accurate floorplan of the accused’s unit at Royal Park.
4.In November 2020, HD was taken by her sister AC to the accused’s unit in Royal Park. AC did this because she was told by HD that she had an argument with her father and did not want to stay in the house with him. AC communicated this information to the accused before she left to collect HD.
5.AC, HD and the accused spent time together in the accused’s loungeroom. AC went to the accused’s bedroom leaving AC and HD in the loungeroom together.
6.HD slept the night at the accused’s unit, on the couch in the living room. The next day she was taken home by AC.
7.HD attended the accused’s unit at Edwardstown in December 2020 when AC and the accused were both home.
8.The first person to whom HD complained was her friend RT.
Assessment of witnesses
The evidence of the police officers was on limited topics, was uncontroversial and undisputed and I accept it.
HD
I have carefully considered HD’s evidence. There was nothing about the manner in which she gave evidence that caused me any concern; she was not argumentative or evasive and did not obfuscate. However, there were a number of aspects of her evidence that troubled me, including proved prior inconsistent statements on material matters.
HD’s account of her complaint to RT was at odds with the account given by RT in her prescribed interview. HD did not allege that she performed fellatio on the accused. The closest her head came to his penis was thirty centimetres. When RT said in her prescribed interview that HD had told her the accused ‘made her blow him off, but yeah like give him a head job’ Detective Evans carefully and appropriately elicited from RT what this meant, and she said that when HD told RT that the accused made her give him a head job’ that meant that he forced her to put her mouth on his penis. I do not infer from RT’s initial reluctance to disclose what HD had told her about any difficulty in recollection; rather she was initially too embarrassed to articulate it.
In contrast, HD denied telling RT this. She said that she told RT the accused had touched her inappropriately but did not tell her much detail and did not want to explain it. I note that HD accepted that the first time she gave this account of the conversation with RT was in October 2022 during a proofing.

RT also said that HD had told her she had told her friends at McDonalds that she had ‘sucked off’ her sister’s boyfriend. HD denied this. RT also said that HD told her the accused had said, ‘if you think you’re smart enough why don’t you suck my dick’. HD also denied this.
I consider that the account of HD and RT regarding the terms of the complaint cannot be reconciled. HD said for the first time during a proofing in October 2022 that she told RT that the accused had touched her. She did not mention this in either of her two prior statements. The conversation with RT occurred prior to the report to police in April 2021. In those circumstances, I prefer the account given by RT of the terms of the complaint. I also accept RT’s account of the other disputed disclosures particularly given they centre on the same allegation of fellatio. I reject HD’s evidence that she told RT that the accused had touched her inappropriately.
In my view, whilst the fact, timing, circumstances and recipient of the complaint are capable of demonstrating consistency of conduct, the terms of the complaint are not. The terms of the complaint are inconsistent with HD’s account of the alleged offending, particularly her denial of having performed fellatio on the accused. I consider this prior inconsistent statement to be on a material matter, namely the alleged offending, and is a matter that significantly undermines HD’s credibility and reliability with respect to the offending she alleges occurred.
In addition to the evidence of RT, there were a number of proved prior inconsistent statements (by omission or commission) or internal inconsistencies on material matters for which HD did not give a satisfactory explanation:
1.HD gave evidence that after she left the accused’s home the day after the alleged offending, she never saw him again. In cross-examination, she agreed that she saw him when AC and the accused were moving into a unit in Edwardstown in December. She said she had forgotten this.
2.HD omitted to mention in evidence that the accused had kissed her . She told police he grabbed her face and kissed her. She then said he did kiss her after he touched her leg but before he touched her vagina. She said she had forgotten about that. I consider it unlikely that HD would have forgotten the accused kissed her if that had in fact happened and it was a memory of a real event. The kiss preceded any invasive sexual touching and was a segue into it.
3.HD gave evidence in examination in chief that the accused did not say anything other than ‘keep going’ and ‘suck it’ whilst she was masturbating him . She did not tell police that the accused said these things.
4.HD gave evidence that the accused came out of the bathroom and whispered in her ear ‘don’t ever tell anybody’ and that her sister saw him whispering in her ear. HD did not tell police that the accused whispered in her ear.
5.HD gave evidence that the accused used his right hand when he put it down her pants and put her left hand on his penis. Her statements to police on this topic were inconsistent. While inconsistent statements regarding which hand was used might often be of no moment, HD said the accused was sitting to the left of her on the couch when these events took place.
I have not overlooked the other proved prior inconsistent statements. Many of those I consider to be on peripheral or insignificant matters. They are not, however, entirely irrelevant to my overall evaluation of HD’s evidence. For example, HD’s failure to mention the large hole in the accused’s T-shirt in HD’s statement to police meant that the police did not have that allegation when evaluating the utility of any seizure and examination of the accused’s clothing.
HD’s account of the alleged offending was one of opportunistic, brazen offending that had no leadup involving the accused ingratiating himself or flirting with HD before sexually assaulting her. It seems common ground that until he sat down with her to watch a movie, he was spending most of the evening gaming. The accused had never met HD before and was in a relatively new relationship with her sister AC. He had no reason to believe that HD would not protest or complain to her sister who was only metres away. HD’s account of the alleged offending was possible but did not commend itself to me as inherently likely. It struck me as odd that, if the accused had engaged in such brazen and invasive sexual behaviour with HD and threatened her not to tell anyone, she had forgotten visiting his new unit with her sister only a few weeks later.
AC
AC was not an impressive witness. She was naturally very protective of her sister, HD, and I formed the impression that she was downplaying HD’s level of distress about the argument with her father and overplaying HD’s clingy behaviour the next day.
I am sceptical of AC’s evidence that she woke up because she had an uneasy feeling. I consider it more likely she woke up because the accused had come to bed but then got out of bed shortly afterwards. Her outright denial of any suggestion that the accused had come into the bedroom before she got up to go to the loungeroom was at odds with her response to this suggestion at the previous trial (‘I don’t remember’).
AC’s account of the position of HD and the accused on the couch (as marked on P2) was inconsistent with HD’s account and the plan AC marked up when she gave her statement to police (P8). If the accused had been in the position AC marked on P8 he would have had to climb over HD to get off the couch.
If AC had seen the accused in the position she described in evidence, she would have had little doubt that something inappropriate was going on and would be unlikely to have simply asked the accused, ‘what are you doing’ and later, ‘what were you doing with my sister?’.
AC gave evidence that she heard whispering but did not mention this in her statement to police.
These aspects of AC’s evidence led me to conclude that she is not a reliable historian. I think it likely that she saw the accused and HD in some form of embrace or hug in the loungeroom without lights on and was suspicious of what was going on but did not see him lying on top of HD.
Her evidence does not corroborate HD’s account in any material way. On a number of peripheral matters, her account is at odds with the evidence of HD (time of HD’s arrival, ordering of Uber Eats from Hungry Jacks for dinner, not going out at any time that evening with the accused, the time AC went to bed, watching an action movie all together).
The accused
I have carefully reviewed the evidence of the accused given at the previous trial. There was nothing in his account of the events of that evening that struck me as inherently implausible. His evidence of the time he spent gaming and the extent of his interaction with AC generally accords with that of HD and AC.
The fact that he asked HD if she wanted to watch a movie because she was still awake, and he did not want to leave her in the dark has the ring of truth to it. That he might have then sat down to watch some of the movie that had been randomly selected is also plausible. His account of HD getting frightened and touching him in a ‘jump scare’ is also plausible.
The accused’s account of AC and HD returning to the Royal Park unit a few days later during which the ‘hickey’ conversation took place generally accords with the evidence of AC and HD with the exception of the location. My concerns regarding the reliability of the evidence of AC and HD leave me unable to reject the accused’s account of this occasion, including the location. I suspect that neither AC nor HD wished to admit that HD had returned to the accused’s house not long after the alleged offending occurred.
The accused’s response in cross-examination to the question about why he did not remain in his gaming chair (rather than sitting next to HD on the couch) to watch the movie struck me as a spontaneous and plausible explanation given the size of the unit and the lounge room set up. I viewed his explanation for not sitting in the beanbag (he hated it and it was just for looks) in the same way.
I accept the accused’s evidence that he did not own a striped T-shirt with a hole in it and that he liked to present himself nicely, even if he was at home. I have not drawn any inference adverse to the accused from his admission that he used cannabis in 2020 and may have on this night. There was no evidentiary foundation for me to reject his evidence that, if he had consumed cannabis, it did not have a disinhibiting effect upon him.
There was nothing about the accused’s explanation for consoling HD and the manner in which he did that which I found inherently implausible. I am left in a position where I cannot reject his denials of the alleged offending.
The cumulative effect of the following matters leaves me with a considerable sense of disquiet about the evidence of HD such that I cannot be satisfied of any of the charges beyond reasonable doubt:
1.The proved prior inconsistent statements on material matters, in particular the materially inconsistent account of the alleged offending given to RT.
2.The inherent unlikelihood of HD’s account.
3.The lack of corroboration for HD’s account from AC’s evidence.
4.The absence of forensic evidence to support HD’s account of the alleged offending.
5.The forensic disadvantage occasioned to the accused by reason of the delay in the complaint and the loss of evidence.
6.The accused’s sworn evidence on oath and his denials of the offending.
Verdicts
I find the accused not guilty of counts 1, 2, 3 and 4.