R v DC - [2024] SADC 141

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DC
Criminal Trial by Judge Alone
[2024] SADC 141
Reasons for the Verdict of her Honour Judge Tracey
31 October 2024
CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED - DETERMINATION OF ISSUES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused has been charged with the sexual abuse of a child contrary to s 50(1) of the Criminal Law Consolidation Act. Accused mentally incompetent to commit the offence – whether objective elements of the offence have been proved beyond reasonable doubt.
Held:
The prosecution has established beyond reasonable doubt the objective elements of the offence.
Criminal Law Consolidation Act 1935 (SA) s 50(1) and s 269FA(5), referred to.

R v DC
[2024] SADC 141
District Court Criminal

The accused (DC) has been charged with the offence of sexual abuse of a child as follows:
First Count
Statement of Offence
Sexual Abuse of a Child (section 50(1) of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
[DC] between the 1^st day of January 2019 and the 30^th day of March 2022, at Croydon Park and other places, maintained an unlawful sexual relationship with [AG], a person under the age of 17 years, by engaging in two or more unlawful sexual acts towards her, namely:
(a)            inserting his finger into her vagina;
(b)            touching her genitals on more than one occasion;
(c)            causing her to masturbate his penis on more than one occasion; and
(d)            touching her breasts on more than one occasion.
Prosecution Case
At the commencement of the trial on 12 August 2024, I ruled that pursuant to s 269FA(5), of the Criminal Law Consolidation Act, 1935, the investigation into DC’s mental competence be terminated and recorded a finding that he was mentally incompetent to commit the offence with which he had been charged. The issue of whether the objective elements of the offence had been proved beyond reasonable doubt proceeded to trial.
The complainant (AG) was born on 23 May 2010. On the prosecution case, at the time of the alleged offending AG was aged between 8 and 11 years.[1] DC is her maternal uncle. He was born on 1 March 1991. On the prosecution case, he was aged between 27 and 31 years during the incidents alleged against him.[2]
[1] T9.13-17.
[2] T9.18-23.
The prosecution alleged that during the charged period, DC attended AG’s house on semi-regular occasions. DC resided with his mother SM, who is AG’s grandmother, along with his stepfather.[3]
[3] T9.28-37.
On the prosecution case, AG first complained to her mother about the abuse, but nothing was done following that. On her account, what was occurring was not a secret within the family and was widely known and that because of DC’s disability, nothing was done.[4]
Elements of the Offence
[4] T13.6-11.
Sexual Abuse of a Child
The prosecution must prove beyond reasonable doubt each of the following elements:
1.DC knowingly maintained a relationship with AG during the relevant period.
2.DC was an adult during the relevant period.
3.AG was a child under the age of 17 during the relevant period.
4.DC engaged in two or more unlawful sexual acts with AG in the course of the relationship.
Only the fourth element was in dispute.
The prosecution alleges that particular (a) amounted to the offence of unlawful sexual intercourse, while particulars (b), (c) and (d) amounted to the offence of aggravated indecent assault.
The elements of the offence of unlawful sexual intercourse are as follows:
Unlawful Sexual Intercourse
The prosecution must prove beyond reasonable doubt each of the following elements:
1.DC had sexual intercourse with AG.
sexual intercourse includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving penetration of the vagina of a person by any part of the body of another person or any object.
2.AG was under the age of 14 years at the relevant time.
The elements of aggravated indecent assault are as follows:
Aggravated Indecent Assault
The prosecution must prove beyond reasonable doubt each of the following elements:
1.DC intentionally assaulted AG.
2.The assault occurred in circumstances of indecency; that is, the indecent circumstances must contain a sexual connotation and the application of force was unlawful.
3.AG was under the age of 14 years at the relevant time.
General directions
I direct myself as follows:
·To find the objective elements proven, the prosecution must prove each element of the offence beyond reasonable doubt.
·I must bring an open and unprejudiced mind to the case.
·I must assess each witness as to their truthfulness and reliability. I can reject or accept all or a part of a witness’ evidence.
·If I am satisfied that there is a reasonable explanation consistent with DC’s innocence, or I am uncertain where the truth lies, then I must find the elements of the offence have not been proven beyond reasonable doubt.
·AG gave evidence with special arrangements in place, and her evidence included a recorded interview with police. I must not draw an adverse inference against DC because of those arrangements, nor allow them to influence the weight that I give AG’s evidence.
·DC elected not to give evidence, as was his right. I have not drawn any inference adverse to him because of his exercise of that right.
Record of Interview with AG on 6 April 2022
AG was interviewed by police on 6 April 2022. She was then aged 11, having given her birthdate as 23 May 2010.
At the outset of the interview, when AG was asked whether she would tell the truth to the police officer conducting the interview, AG gave a long description about what she said had occurred with DC.
AG said that DC had been very inappropriate towards her. When her Nan and DC moved out a couple of years ago, that’s when ‘he started getting touchy and really weird with me and I really didn’t like it.’ She said that her father told her, ‘oh well, since you’re growing up it’s good to tell you what’s like bad and good.’ DC would come sometimes with her Nan, and he would be ‘very weird and inappropriate’ with her and make her feel really uncomfortable. She said she told her mother, who every time would say that it was about DC’s disability.
This year DC got a little bit ‘too touchy’ and started being a bit more inappropriate. AG said that she told her mother who got a bit annoyed and told her Nan, but her Nan once again said it was a part of his disability. AG said that it just made her feel really upset and her dad had work so she couldn’t really call him.
AG described how she hadn’t really had the best relationship with her mother because her mother tended to yell at her and her sister a lot, which would make her really upset. AG said that she lived with her mother and sister and her brother had decided to move in with her father.
AG said that her Nan and DC would come over either once a month or once every two months for just a few hours.
When asked to tell the investigating officer about it sometimes being weird and inappropriate with her uncle, AG said:[5]
So he would, he wouldn’t really touch me and he would just be very weird around me like, such as, looking at me, such as doing like weird things I guess, I’m not properly sure. And he would just be very touchy with me and like make sure nobody sees it so then he’s just not going to get in trouble. And sometimes he will make me touch him and I know that if I really do anything it would be very awkward which I don’t think anyone likes awkward positions. But I always end up telling after.
[5] Record of Interview p 8.34-41.
AG was shown a diagram of a child’s body. She was asked to label the parts of the body that the interviewer pointed out. Using the picture, the interviewer asked AG to point to the places where DC touched. The interviewer identified that AG was pointing to ‘boobs’, ‘nipples’, ‘stomach’, ‘vagina’, and ‘butt’. AG said DC had touched her over both the top of clothing and underneath.
When asked how many times ‘has that happened’, AG said, ‘I can’t really keep up because it’s actually been quite a while since he’s done it so I can’t fully remember.’ AG was then asked, ‘When you say it’s been quite a while since he’s done it, so he hasn’t done it for a little while?’ AG said ‘He’s done it for like a while like. So like kind of a long time’. The interviewer then asked ‘Just to clarify because I am a little bit confused. Are you saying that he hasn’t touched you, um it’s been a long time since he’s last touched you but when he was touching you, he had been doing it for quite a while?’ AG said, ‘He touched me like a while ago, that’s when it started and he still done it.’
AG said that it started before it was just, she, her mother and sister living together. It was happening when her father and brother were living with them.
‘First memory’
AG said her ‘first memory’ of ‘it’ happening was when she was living on Harley Road, Croydon Park.
AG was asked ‘So that’s your first memory of something a bit weird or inappropriate happening was when you were living at 28 Harley Road. And how old were you then?’ AG asked ‘Um, when I first moved there or when it started?’
When asked when it first started, she said that it was around 2017 to 2018 ‘So it’s been like a while.’ She said she would have been around seven to eight.
‘Worst occasion’
AG was asked what the ‘worst occasion’ was. She said that this was when she was living at an address on Torrens Road, where she still lived. It was one or two weeks ago.
AG said everyone was gone except for her and DC. DC had to stay at the house because he was sick, and she didn’t want to go because she didn’t like going to the shops. She said that was when he ‘like really like actually tried to touch me in that area, especially that part. And that’s where it like made me feel the most uncomfortable, it’s the second I went in my room. I actually started crying because I was that traumatised.’
The accused first went to the ‘back’[6] and she was watching TV. She got bored so she decided to go to the back but didn’t realise he was there. She thought he was in the kitchen. She walked out the back and saw him. She sat down and he came to her and started to get really touchy.
[6] AG later explained this to be the backyard.
After describing what had happened after she had gone back inside, AG returned to being out the back with the accused. She said that when she first went out the back, DC sat down, and he stood up again to get touchy. He would try touching her vagina and boob area. She was wearing a school shirt and leggings. Underneath she had a tank top, bra, pyjama shorts and underwear. She described what the accused was wearing as a ‘buttoned shirt’ that had ‘patterned vibes’.
AG said that DC touched her over her clothing and then under. She said he tried to do under for that area but she was pushing down so he couldn’t. First, he was touching her over the shirt and then it was under the tank top over the bra and then he did it again but under the bra. He put his hands up her shirt. She said:[7]
He was kind of shaking a bit and um, he was like going up to touch it and like with the other hand he kind of had it on the chair so then he could like kind of keep balancing, I guess. But the other one, he was like putting it up my shirt.
[7] Record of Interview p 17.8-11.
She said the accused was not putting his hand under her clothing to touch her bottom area. Every time DC did ‘it’, he didn’t talk at all, and she didn’t say anything because she hated awkward situations, but she did end up telling her mother after.
AG went back inside through the kitchen and into the lounge room. She was laying on her right side watching the TV and that’s when the accused ‘started to look’. The accused was standing in front of what appeared to have been an air conditioning unit. He was behind her and looking at her butt. He continued watching and tried to go next to her. She told him to go to her mother’s bed, which was in the same room as he was unwell.
AG went to get her blanket and when she came back DC was lying on the sofa. She thought maybe it won’t be that bad, but she was ‘completely wrong’ because that’s when he ‘actually started getting properly touchy’. He started to try going fully under her clothes and once again tried touching her vagina. She was pushing her clothes down and putting pressure on that so that he couldn’t do it. He couldn’t manage to do it and then he went back to touch her boobs and nipples, lifting up her shirt. She sat back down, and he did it again. He then lifted up her bra and was looking at her boob area. She said he was ‘like whacking it I guess.’
AG said:[8]
And this is kind of where it gets disgusting and that’s where I told him to stop and called mum and he was. I know it sounds like really weird and awkward. He was licking it[9] and that’s where I am like stop it, I really don’t like it and I went to my room. I called my mum, she’s like what. I was like, yeah he was like doing it. That’s when I was crying like, really hard. Like of course he didn’t know what to do like, come on I was crying I was telling on him and he’s like, oh. And it’s like what. She’s like right we’re going to come home soon okay, I’m like okay. It’s kind of hard not to cry.
[8] Record of Interview p 20.41-43,48; p 21.1-2, 6-9.
[9] AG said that the accused was licking her nipples.
When asked whether there was anything else that she wanted to talk about regarding this incident, AG said:[10]
Well, he made me touch his area which is like the under area and I got really uncomfortable with that and that’s when he like started touching those two areas or lifted my shirt and that. That’s done like mostly just pulled, because like who would want to touch a man’s thing, nobody well.
[10] Record of Interview p 21.27-31.
She said a man’s thing was his penis. She said she assumed he had his clothes on but did not look. She thought he pulled his pants down. Her hand touched his penis which she sanitised after ‘because like, it’s disgusting.’
AG described how her hand had touched the accused’s penis. She said her palm and fingertip area was around in a circle. She didn’t look at his penis. She said it was kind of small, floppy, and soft. She said the accused was making her hold it and making her shake it like a bottle but a bit slower. He only did it for a bit and pulled back the second she asked what he was doing. She said she was giving him one more chance because sometimes he ‘can do it accidentally’ and that’s when he laid next to her trying to touch her.
She said he was kneeling behind her when he made her touch his penis and he laid down next to her. That’s when he started to touch her breast area and her vagina. He touched her vagina over her clothes.
Other Occasions
AG was asked to think about another occasion that ‘it’ had happened. She said that in either June, July, or August, when they were living on Torrens Road, DC came in her room. She told him not to come in but thought DC just wanted to come in and look at her Michael Jordan poster. She asked him to go away, but he just came in. She said, ‘last year that’s when he um, like actually touched my area which is that one’, pointing to the vagina on the diagram.
AG was asked ‘So sometime last year June, July or August you were lying on your bed, he’s come in, you’ve said you didn’t want him there, he’s kind of ignored that and stayed, tell me what happened.’ She said:[11]
And then he went in my room and I was laying down on my bed because I have a couple of pillows on that because like, I like pillows I guess and then um, what happened was he kind of went behind me and then he started touching there and there.
[11] Record of Interview p 21.35-38.
AG pointed to ‘boobs’ and ‘nipples’ on the diagram.
She was sitting fully on the bed but leaning on a pillow. The accused pushed her back forward so he could get behind her.
AG said that ‘this was like once again as I said, last year.’ AG then added:[12]
And, wait no, this year had a whole year wrong anyway, and then um, he started touching my back and then he kind of moved where my boobs were. And then he moved lower and that’s when he touched that.
[12] Record of Interview p 27.25-27.
AG pointed to ‘vagina’ on the diagram.
It was over the clothes and then under. He went under her jumper and shirt. He was kind of squishing her nipple area. She said that after he touched her boobs, he got his hand out and went to go under her sweatpants. He started to really try because she had little sides where you can tighten. He untied it and then got his hand under her pants and under her underwear. He was using one hand, and the other hand was on her shoulder. Mostly his index finger and middle finger were touching her vagina. She said he was rubbing it on her vagina which made her feel really uncomfortable. He was rubbing it really hard because he was adding pressure to it.
The interviewer then presented AG with a packet of wipes, telling AG that the packet was her vagina area and asking whether it was on her vagina or in it, pointing to the opening in the packet. AG said, ‘I would say like in.’ She said that he did it for a minute. He didn’t say anything. She told him to get out. He went to the lounge room and laid on her mother’s bed. She went back to her room and went on her phone. She then went and watched TV and that was when she went to go to the backyard.
She agreed that what she had just described wasn’t last year, but rather was a couple of weeks ago. She agreed that this was what led up to the incident that happened in the backyard and in the lounge room.
She said the first person she told was her mum and was asked whether she told her everything or just a few things of what had happened. AG said she told her mother a few things.
When asked to describe another incident, AG said something happened when she was living at Harley Road.
She was in her room laying down with an iPad. The accused came in and asked if he could lie next to her. She said she really couldn’t notice it at first because all he would do then was just look at her weirdly. She said ‘sure’ and that’s when he touched her vagina and made her touch his penis. It was under the clothes. Her fingers and a bit of her palm were touching his penis. When asked whether his penis was still or moving, AG said that it was moving the same way she described before, shaking a bottle but slower.
She said the accused used his index finger under her clothes to touch her vagina. He was using his finger, pushing it on her vagina.
She said she could not really remember when this incident involving the iPad occurred. She said she was like eight or nine and it was in 2019.
When asked whether there were any other incidents that she could recall, AG said ‘I’m not quite sure because like, it was kind of a while ago and it’s sometimes hard to remember things.’
Evidence in court on 13 August 2024
In her evidence, AG said that what she had told police during her interview were not the only times that touching happened, but they were the main ones that she remembered.[13]
[13] T18.20-23.
She said that she knew the touching happened over ten times.[14]
[14] T18.26.
There had been more touching at Harley Road and at Torrens Road than she had told police about in her interview. She said she had gone to the accused’s house only a couple of times and could not remember any touching happening there.[15]
[15] T18.37-38, T19.1-8.

The accused touched her breasts more than what she had told police and while she was ‘not fully sure’, she thought it was eight times.[16]
[16] T19.18-19.
She said the accused touched her vagina over ten times that she could remember. He had rubbed then touched her vagina around five times.[17]
[17] T19.26-33.
The accused had put his penis in her hand only on the times she had described to police. She said she ‘partially’ remembered the times touching happened.[18]
[18] T19.34-38, T20.1.
She had spoken to her mother about the touching two or three times but could not remember when or where that had been. Her mother was the first person she had told.[19]
[19] T20.5-22.
She remembered that she still saw the accused and he had touched her after she had told her mother.[20]
[20] T20.17-20.
In cross-examination, AG said that she did not remember the name defence counsel put to her as someone who had made allegations against her father. AG said she did become aware through her mother, of allegations against her father about grooming a young girl.[21]
[21] T33.28-38.
AG agreed that she felt that her father was on her side more than her mother was and that around the time that she first discussed the accused touching her with her father, she would have preferred to live with him.[22] She agreed that the accused was annoying and would seek a lot of attention. Often, she would have preferred not to have to deal with him at all.[23]
[22] T34.15-17, 25-28.
[23] T34.35-38.
After the touching had commenced, she had a conversation with her father about what good touching was and what bad touching was.[24] She did not remember if she mentioned it multiple times. She did not think that he had given examples of what would be bad touching. Rather, it was just conversation where he said what it was.[25] She said she did not remember what her father had said to her because it was two years ago.[26]
[24] T35.2-5.
[25] T36.4-12.
[26] T37.13-16.
AG agreed that in her interview she had said that she would ‘always end up telling after’ but did not know what she had meant.[27]
[27] T37.36.
AG disagreed that she had exaggerated the accused’s behaviour when speaking to police, that is, that it had not included her having to touch his penis or him touching her vagina.[28]
[28] T38.18-20.
AG was asked whether she had exaggerated what the accused had done to get the accused out of her life and to make it easier for her to go live with her father instead of her mother. AG said that she ‘genuinely just didn't want to live with [her] mum. He wasn't the issue.’[29]
[29] T38.25-29.
AG said that the accused rubbed and touched the inside of her vagina around five times in total.[30]
[30] T38, 30-38.
AG agreed that she had told police in August 2024, that ‘[DC] touched me on my breasts and on top of my vagina many more times than what I've described to the police. When I told police about times he had put his fingers inside my vagina or when he made me touch his penis, those were the only times he had done that to me.’[31]
[31] T39.7-16.
AG denied that what she had described to the police about the accused putting his finger inside her did not add up to five times and maintained it was five times. She could not remember whether her evidence in court was the first time she had suggested it was five times.[32]
[32] T39.17-38.
In re-examination, AG said that there had been multiple reasons for wanting to live with her father. One of them was because of DC. She said that it was not the best household. She just preferred it with her dad because she was more comfortable around him. Her mother didn't really buy food for the house and after she told her about what happened with DC, her mother still invited him over multiple times and had said it was because of his disability.[33]
[33] T40.24-38, T41.1-4.
Evidence of AM
AG’s father, AM, said that between 2005 and 2007, he had lived with AG’s mother MK and her mother SK and DC. He also lived with MK between 2013 and 2021 at Harley Road, Croydon in around 2014 or 2015, and at Torrens Road, Renown Park in 2020. He left the Torrens Road address in 2021. Initially, none of his children moved out with him.[34]
[34] T42-43.
When he lived at Croydon Park and Torrens Road, MK’s family would visit. SK, her partner, and DC would visit on occasion. The accused would not come every time.[35]
[35] T44.
AM said that he was sometimes home when they would visit. When they visited and he was there, DC would be left wandering around, to do his own thing. Often MK and SK would be outside, and DC was left to wander through the house.[36]
[36] T45.5-12.
There were occasions where the adults would leave to get a coffee or go to the shops and DC would be left with the children.[37]
[37] T45.31-38.
DBS Alyse Avery
DBS Avery is the Investigating Officer. As part of her investigation, she sought to produce affidavits from MK, SK and her partner, but they did not provide statements.[38]
Counsel Submissions
[38] T49-50.
Prosecution
The prosecutor submitted that I should find AG was an honest, reliable, and impressive witness even when factoring into my assessment her age, the passage of time from when the offending occurred, the length of time that the offending occurred over and the passage of time from when she was interviewed in 2022 until trial.[39] AG was a young girl doing her best to assist the interviewing officer in her oral evidence by telling the truth about what happened to her. While the prosecution conceded AG was not a perfect witness, and despite inconsistencies with her evidence, her evidence was sufficient for me to find the objective elements proven beyond a reasonable doubt.[40]
[39]T54.16-24.
[40] T54.25-34.
That AG understood the difference between a truth and a lie and said that she would tell the truth was not only borne out by her answers but also her responses that she was not sure or did not know, and when correcting the interviewer. Where AG was asked either unhelpful or confusing questions, she otherwise corrected the interviewer to make sure that she properly understood what she was being asked. This also occurred in her oral evidence.[41]
[41] T55-56.
With respect to the body chart used during the interview, while somewhat unsatisfactory, in that the interviewer was the one who said where AG pointed, there was no ambiguity as to where it was that AG did point.[42]
[42] T56.4-15.
AG clarified in her oral evidence the examples that she had given to police in her interview. They were not the complete or whole extent of the touching that occurred. She gave evidence of the frequency of the touching and the four particulars that are alleged.[43]
[43] T56.
When AG was asked during the interview how many times things had happened, she said ‘I can’t really keep up because it’s actually been quite a while since he’s done it, so I can’t fully remember.’[44] AG clarified that he touched her a while ago and he has ‘still done it.’ This shows, the prosecution submits, that if she has been unclear, she has shown a willingness to correct and otherwise clarify what she meant by that particular point.[45]
[44] T57.32-35.
[45] T58.
AG demonstrated a willingness to make a concession about a lack of memory or a lack of information and did not take the opportunity to jump on something that may make the situation worse for the accused.[46]
[46] T58.16-20.
At the time of the interview, AG was a child of about 11 years of age and when she gave her evidence in court, she was only 14 years of age. I was asked to factor into an assessment of her account, her age and the passage of time when considering issues such as reliability and credibility.[47] Her age was also relevant, it was submitted, when considering the terms and language that she used to describe the things that happened to her.[48]
[47] T58.35-38, T59.1-3.
[48] T59.10-14.
The level of detail AG gave was indicative of a level of detail you would expect from a child describing events or a situation of which they have a memory.[49] She described a tall device in the living room and from the photos this is clearly a heating or cooling unit. She gave a detailed account about her thoughts and feelings at the time following the incident. She said DC had tried to touch her under her clothes and she tried to stop him and that she was upset and called her mother. This, the prosecutor argued, was a situation where she was not just repeating what happened to her and repeating physical acts but was evidence of how she felt and what she was thinking at the time.[50] This was the first time that she mentioned the touching of DC’s penis and she described that incident with some detail where she said ‘This is where it gets disgusting. I told him to stop.’ This, the prosecutor argued, again showed a level of insight into what she was feeling and thinking more than just the base level allegations of what happened to her.[51]
[49] T61.16-19.
[50] T61.
[51] T62.1-10.
She also described the motion she used as ‘shaking a bottle’. She demonstrated the motion two times in the interview. Again, the prosecution submitted, that description as to what she did and the detail, is consistent with a child doing their best to describe what they experienced.[52]
[52] T62.10-19.
The second incident at Torrens Road was the occasion where AG was in her room and DC came in behind her and got into the bed and touched her. There was here the prosecution argued, detail about the pillows and the movement that actually occurred that fleshes out the event.[53] This occasion is the only act of penetration of her vagina that she described in the interview. This was clearly inconsistent with the evidence she gave in court.[54]
[53] T62.20-27.
[54] T62.28-33.
In her interview, AG described the event occurring a few weeks ago at the time of the interview and gave details about the pressure and the feeling on her vagina and the parts of her body as to what the accused was doing.[55]
[55] T62.37-38, T63.1-3.
The third example AG gave was the occasion at Harley Road. The prosecutor submitted that a young child would not give the level of spontaneous detail about the acts that she described unless she was describing something she had experienced.[56]
[56] T63.25-31.
As to the opportunity and risk of detection, DC’s intellect was known to the family and AG said she told her mother and DC continued to come to the house and her mother did nothing about it. Accordingly, any submission about the risk of detection is not relevant here.[57]
[57] T64.4-12.
AG did not allege that offending happened every single time the accused came over. She gave a finite number or estimate as to how many times each act had occurred and detailed that in her court evidence. Her evidence was supported by that of her father with respect to the frequency of the attendance at the house over the years.[58] AG was clear in her interview that these things occurred when no one was around, and some occurred in her room. Touching of the kind that she described was not, the prosecution argued, the type of touching that would be inconsistent with being able to occur quickly or occurring in a short amount of time.[59] It is of note that she was not challenged as to the frequency of attendances and therefore, the prosecution argued that it is open for me to be satisfied that there was the opportunity to offend in the manner that AG alleged.[60]
[58] T64.
[59] Ibid.
[60] T65.3-7.
AG said that she told her mother, and nothing came from that. While there has been no evidence from her mother, the mere fact that she did complain to her mother is still a relevant factor in considering whether a child in that position acted appropriately in complaining when she did, in the manner that she did.[61]
[61] T65.
With respect to AG’s evidence in court that digital penetration occurred five times, the prosecution submitted that a child of her age might not have appreciated the seriousness of a particular act. The descriptors that she gave about the acts that appear to have resonated more with her were the act of masturbation that she described, which the prosecution argued, were perhaps the ones that she carried with her or provided the most details about.[62]
[62] T68.5-13.
The frequency and repetitive nature of the acts, the characteristics of the offending, her age, and the passage of time from when things started to where they are now, leads to an understanding of any errors in descriptors as to the numbers or frequency of offending.[63] AG did not move away from the acts having occurred. She clarified that a particular act occurred more frequently than what she had said before.[64]
[63] T68.30-35.
[64] T68.36-38, T69.1-2.
As to any alleged motive to lie, the prosecution argued that it is here not simply a false allegation about some touching and the effect of that. It is a false complaint to her mother on her account, unchallenged evidence from her that she complained to her mother a number of times and to her father. A detailed and false complaint to police in the interview about what happened to her and then confirming that false account. It is not just a false account about the details of the offending, but it is her feelings, thoughts, and emotional responses that she describes that would be false.[65] The evidence that she gave about wanting to live with her father was that she genuinely did not want to live with her mother and that what was occurring to her was not the only issue. She confirmed in

re-examination that her mother did not buy food. After she told her mother, DC was still invited over multiple times and her mother told her it was because of his disability. Clearly, she did not feel safe in that environment despite her attempts to try and rectify the situation that she was in.[66]
[65] T69.
[66] T70.9-16.
Defence
Mr Lang submitted that sometimes an inconsistency can be quite significant in terms of the scrutiny which this situation requires. There is no external evidence supportive of any of these alleged acts occurring.[67] It is not asserted that the accused was ever interrupted in the actual course of any of these acts. The court is therefore wholly reliant upon AG’s evidence. Mr Lang argued that what AG told police as regards to digital penetration indicated ambiguity.[68] It may be enough to create a supposition of some degree of penetration but at most there were two occasions, and the inconsistency is sufficient to undermine AG’s reliability if not her credibility. If I were of the view that she was capable of incrementally adding detail or deposing to more severe detail, then that creates a risk that has been the process from the outset of her disclosure.[69]
[67] T71.36-38, T72.1-2.
[68] T72.5-11.
[69] T72.24-26.
Mr Lang asked me to consider whether the accused was in a particularly vulnerable situation at the time and argued that it could be that a girl of AG’s age would be less reluctant to make an allegation against him as opposed to an able minded defendant because DC is inherently hampered in being able to provide a counter narrative. It may be that AG formed a dislike towards DC because of the characteristics which she acknowledged about him as being annoying.[70]
[70] T73.25-35.
In terms of the first asserted disclosure of penetration where AG was aided by the wipes, she was in a sense prompted. It was not put as a proposition but rather, it was an alternative that he did this or that, but she had not used words like ‘in’ prior to that. She said, ‘I would say like in.’ Mr Lang argued that at that stage, there was no definitive assertion of it going ‘in’ and that it was not a particularly compelling assertion.[71] He argued that it was strange that when it turned out that the going ‘in’ was part of the same event within the narrative as it then was, that when AG was first asked if that happened outside or inside, she expressed the outside touching. Mr Lang suggested it was very strange if indeed this referred to real events, that she did not at that stage point out but later said it went ‘in’.[72]
[71] T74.
[72] T74.
AG specified three months of the previous year ‘June, July and August’ that later turned out in what the prosecution would say was a correction, to be a sequel to the event that she first expressed as happening two weeks ago. The period of ‘June, July and August’ was never satisfactorily replaced. In other words, Mr Lang argued, the gap left by AG positing the events she started out describing as coming at an end of an event she had just described, was never clarified or corrected.[73]
[73] T74.35-38, T75.1-10.
Mr Lang submitted that if in scrutinising AG’s evidence I was seriously troubled by any lack of reality in her account or by any significant inconsistency, then in the context of a charge like this I might be troubled about reaching a conclusion beyond reasonable doubt.[74]
[74] T75.11-19.
Discussion
Plainly AG had difficulty with describing events in a chronological order. It was unfortunate that during her interview on 6 April 2022, the interviewing officer did not develop AG’s account in such a way as to identify the timing or sequence of events. While I accept that AG did not lay out her recollections in a particularly structured way, the interviewing style gave AG little assistance to do so. Asking a child what the ‘worst occasion’ had been, was not particularly helpful.
That is however, not to say that on careful analysis that what AG said in the interview was not both credible and reliable. In the police interview, AG appeared very engaged. It was apparent that she listened carefully to what was being asked, as demonstrated by the times she asked for clarification and when she corrected the interviewer. I do not doubt that she answered questions truthfully and that she was giving a genuine account of events. I found her detailed descriptions of events to be compelling, for example, in relation to her memory of DC shaking, her description of the way she touched his penis and that it was ‘disgusting’, her description to the accused ‘whacking’ her breasts and her feeling pressure when he touched her vagina.
AG spoke without any sign that she was trying to make things worse for DC. An example of which was not taking the opportunity to describe the touching on every occasion as having been under her clothing.
It would not be surprising in the circumstances as she recalled them, for AG to prefer not to have to deal with DC, and she accepted that DC was annoying and time consuming. She said in her evidence that she genuinely did not want to live with her mother and that DC was not the issue. She described her mother’s home as not the ‘best household’ and elaborated by saying that her mother didn’t buy food. Her relationship with her mother was plainly difficult and indeed, it was something about which she spoke initially to police, no doubt in large part because of her mother refusing to intervene in DC’s alleged behavior. However, I detected no hint that her desire to live with her father was motivation for her to make up allegations against DC or to lie. Having rejected a motive on AG’s part to lie, does not of course lead to a conclusion that she has told the truth.
While I have not heard evidence from either AG’s mother or grandmother, AG’s evidence of complaint about DC’s behaviour was not challenged. AG said she told her mother about what happening, the person to whom it would be expected a young child would complain. While her complaint does not go to the truth of her allegations, it is relevant to my assessment of her as a witness.
There was opportunity for DC to have behaved as AG alleged without his behaviour coming to the attention of members of the household. Indeed, from AG’s unchallenged evidence, others were aware of his behaviour.
I am mindful of the criticisms defence counsel made with respect to AG’s evidence and regarding the inconsistency between what she told police in the interview and in August 2024, and when she gave evidence in court that DC ‘rubbed and then touched in’ her vagina around five times, and her apparent adoption of the words used by the interviewer when using the packet of wipes.

In her initial interview, AG described the occasions when DC had her hold his penis and when he touched her vagina. In August 2024, AG told police ‘[DC] touched me on my breasts and on top of my vagina many more times than what I've described to the police. When I told police about times he had put his fingers inside my vagina or when he made me touch his penis, those were the only times he had done that to me.’
AG gave the following evidence in chief:[75]
[75] T18-20.
QYou were asked some questions by the police officer about your Uncle [DC].
AYes.
QYou told the police about some times [DC] touched you.
AYes.
QYou gave some police some examples of that.
AYes.
QWhat you told the police or the examples you told the police, were they the only times that that kind of touching happened.
ANo, but those were the main times I remembered.
QHow many more times or how much more did touching happen.
AI'm not fully sure but I know it is over 10.
QYou spoke about to the police about where you and your family were living at the time.
AYes.
QThere was two houses you lived at, you spoke about Harley Road address.
AYes.
QAnd an address at Torrens Road.
AYes.
QWhat address did you live at first.
AHarley Road.
QWhen you said there was more touching, was there more touching at Harley Road than what you told the police.
AYes.
QWhat about the Torrens Road address, was there more touching at that address.
AYes, there was.
QDid you ever go to [DC’s] house.
AOnly a couple of times, not that many.
QDid any touching ever happen at [DC’s] house.
ANot that I can remember.
QI have asked you and you said there was more. You told police about [DC] touching your breasts.
AYes.
QYou gave some examples of that.
AYes.
QDid that kind of touching happen more than what you told the police.
AYes.
QCan you say how many more times.
AAgain I'm not fully sure but I do know it is at least over I think eight this time.
QThen you told police about some touching or [DC] touching your vagina.
AYes.
QYou gave some examples of that.
AYes.
QDid that happen more than what you told the police.
AYeah, that one happened over 10 times that I can remember.
QYou told police about a time [DC] rubbed then touched in your vagina, do you remember that.
AYes.
QDid that type of touching happen just that once or more than once.
AI would say around five times, so more.
QYou told police about some times he put his penis in your hand.
AYes.
QDid that touch happen more or just the times you described to the police.
AJust the times I described to the police.
QAs you sit here now do you recall every single time the types of touching I have asked you about happened.
AI don't remember it but partially.
In cross-examination, AG said:[76]
[76] T39-40.
QDo you agree that what you described to the police about him putting his finger inside your vagina didn't add up to five times.
AIt did up to five times.
QWhat I am suggesting to you is that you told in your statement something different to what you told the police in the interview. You are nodding, is that a yes.
AI was just listening to what you said.
QThanks. You maintain it was five times now, do you.
AYep.
QDo you agree that that last statement was the first time you had ever said it was as many as five times.
AYes.
MR TATE: Sorry it was put the statement was five times. I think the question -
MR LANG: Sorry, yes.
HER HONOUR: You need to ask the question again. Can you, Mr Lang.
XXN
QYour evidence was the first time you have ever suggested it was five times.
AI believe so.
HER HONOUR
QToday in court when you were giving evidence was that the first time you've ever said that it was five times.
AI honestly don't remember.
While there is an inconsistency between that evidence and what AG had said previously, it did not appear that AG had ever calculated the number of times with any real certainty. She said she was not sure and only ‘partially’ remembered ‘every single time’. There may be any number of reasons for the inconsistency now as opposed to when she spoke with police as recently as a month prior to trial. There was a degree of repetition in the offending that AG described in her interview and AG had described occasions where a variety of sexual acts occurred which may have affected her perception of the frequency in which specific acts occurred.
When AG gave her evidence in court, she was aged 14 years and appeared to be softly spoken and self-conscious. I did not find her demeanour or manner to be a sign that she no longer maintained the allegations or that she did not want to ‘own’ the allegations that she had initially made. In her initial interview, AG was unable to give any indication of the frequency of the touching and as the prosecutor submitted, AG did not retract any allegation. The inconsistency in her account has not caused me to reject AG’s evidence as a whole or in particular, the allegations she made in her police interview.
With respect to defence counsel’s submission that AG was ‘prompted’ to make an allegation that the accused’s fingers went ‘in’ her vagina, AG described a time when the accused ‘like actually touched my area’, referring to her vagina. She pointed to the vagina and said, ‘that’s when he touched that.’ The interviewer asked AG to tell her about when DC ‘touched there’. AG said that DC got his hand out and went to go under her sweatpants to her vagina. She said that he ‘started to really try.’ She then said DC got his hand under her pants and under her underwear.
The interviewer asked what the hand was doing and what it was touching, to which AG replied that DC ‘went around her vagina areas’. She said that he was using his index finger and middle finger to rub on her vagina. She said, ‘he was like rubbing it but like kind of really hard because he was adding pressure to it.’
The interviewer proceeded to use a packet of wipes as a representation of the vagina and the vaginal opening. She asked AG whether it was ‘in or on her vagina.’ AG said, ‘I would say like in.’
At a later point in the interview, AG described this incident as when the accused, ‘touched my area’, referring to her vagina.
The interviewer asked her whether when DC touched her vagina, it was over or under her clothes. She said that it was ‘under’ and when asked to describe the touching, she said ‘he went under and was using his finger like pushing it I guess on my vagina.’
The interviewer used the same packaging again and asked AG to describe the pushing. AG said, ‘he kind of had it on but like putting pressure. Pushing it down and kind of rubbing it.’
I accept that prior to the use of the wipes packet by the interviewer, AG had not specifically identified that DC’s finger had gone in her vagina as opposed to touching, however her earlier description of ‘rubbing it but like kind of really hard because he was adding pressure to it’ was consistent with such an experience. The officer had used a flat palm when asking AG questions with the use of the wipes. Contrary to defence counsel’s submission that AG had not made a particularly compelling assertion that DC’s finger went ‘in’, AG pointed purposefully and directly at the wipes packet in a downward motion that left no uncertainty that what she was describing was DC’s finger going in her vagina.
As I have said, my assessment of AG was that she was giving an honest and reliable account of what DC had done on certain occasions. I do not interpret AG’s apparent confusion about the timing of the events she described as an indication that she was not a truthful or reliable witness. In the circumstances as AG has described, I am satisfied beyond reasonable doubt that between 1 January 2019 and 1 March 2022, DC inserted his finger into AG’s vagina, touched her genitals on more than one occasion, caused her to masturbate his penis on more than one occasion and touched her breasts on more than one occasion. Each occasion concerned an unlawful sexual act. I am satisfied beyond reasonable doubt that DC knowingly maintained a relationship with AG, during which time he engaged in two or more unlawful sexual acts when AG was under the age of 17 years, and he was an adult.
Accordingly, the objective elements of the offence alleged against DC have been established beyond reasonable doubt.