R v De SA - [2020] SADC 52

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DE SA
Criminal Trial by Judge Alone
[2020] SADC 52
Reasons for the Verdicts of Her Honour Judge Chapman
8 May 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY
The accused is charged with committing three offences of a sexual nature against a 16 year old girl on 12 November 2016 at her workplace. The accused had employed her to work as a waitress in his café three months earlier. It is alleged he offered her $200 to have sex with him (count 1) and indecently assaulted her (counts 2 and 3).
Held: The accused is guilty of all three counts.
Criminal Law Consolidation Act 1936 (SA) s 56, s 63B(3)(a); Evidence Act 1929 (SA) s 34CA, referred to.

R v DE SA
[2020] SADC 52

The accused is charged with three offences allegedly committed by him on 12 November 2016. The complainant, AB, was 16 and employed by him as a waitress at his café from August 2016. She worked at the café, about once or twice a week, either after school or on the weekend. It is alleged that during an evening shift at the café, the accused committed the offence of Aggravated Communicating with the Intention of Procuring a Child for Sexual Activity contrary to s 63B(3)(a) of the Criminal Law Consolidation Act, 1935 (the Act) and two counts of Aggravated Indecent Assault, contrary to s 56 of the Act.
The prosecution called three witnesses - the complainant, the complainant’s mother and a police officer. The prosecution must prove each of the offences beyond reasonable doubt. There is no onus on the accused to prove anything. He has the presumption of innocence in his favour. The prosecution must prove each element of each of the offences to the standard of beyond reasonable doubt.
The accused gave evidence in his defence. I have assessed his evidence as I would the evidence of any other witness bearing firmly in mind that by electing to give evidence, he takes on no onus of proof.
The elements of the offences
In order to prove the offence of Aggravated Communicating with the Intention of Procuring a Child for Sexual Activity (count 1), the prosecution must prove the following elements beyond reasonable doubt:
1. The accused communicated with the complainant.
2.The accused made the communication with the intention of procuring the complainant to engage in, or submit to, sexual activity.
3.At the time of the communication, the accused was in a position of authority in relation to the complainant.
4. The complainant was under the age of 18 years.
It is alleged that in the storeroom of the café, the accused asked the complainant if she would have sex with him for $200. There is no dispute that such a question, if put by the accused to the complainant, would satisfy the elements of the offence. The issue is whether such a communication was made. The accused denies making that suggestion.
In order to prove the offence of Aggravated Indecent Assault (counts 2 and 3), the prosecution must prove the following elements beyond reasonable doubt:
1. The accused intentionally assaulted the complainant.
2.The assault was accompanied by, or occurred in, circumstances of indecency which must involve a sexual connotation.
3.The accused was in a position of authority in relation to the complainant (element of aggravation).
Because of the complainant’s undisputed age at the time (age 16), her consent to any such act is not a relevant issue. There is no dispute the accused was in a position of authority.
It is alleged that in the storeroom of the café, the accused stood behind the complainant with his hands under her pants and touched the top of her underwear (count 2). He then asked her to take her pants down so that he could see her bottom. When she did that, he stood behind her, touching her hips and bare bottom (count 3). There is no dispute each of the allegations would amount to an indecent assault. The issue is whether the acts in fact occurred. The accused denies committing any such acts.
The allegations
AB gave evidence that on 12 November 2016 she had her first Saturday evening shift at the café. The accused contacted her at 3:50pm via text message. He said, ‘Because its night time can you wear a dress or something more formal’. She responded, ‘It’s a bit windy for a dress’. He responded, ‘You are not working outside’, ‘But yeah it’s a bit cold for a dress’. She wore black skinny jeans and a white shirt. At the café, an apron was worn over the top of clothing.
AB arrived for work at 5.00pm. The shift was to 8.00pm or 9.00pm. There were a few kitchen staff out the back and a young woman managing front of house with AB and the accused.
At about 6.00pm or 7.00pm, the complainant went to the coolroom with the accused. That room was in the underground car park, accessible via a lift. AB thought it might have been her first time going to that room. The accused told her they had to check to see how many muffins they had and bring them upstairs. While they were in the coolroom he asked her what she would do for $200. She thought it was a work‑related question and said that she would clean out the storeroom or re‑arrange decorations in the café. She stood on a crate to check the muffins. The accused was standing ‘real close’ to her, ‘like pushed behind me’. They were in the coolroom for 5‑10 minutes.
The complainant went back to the lift with the accused and then back up to the café. The accused got $100 out of the register and gave it to her. He told her to go to Coles to buy marshmallows and bread, then meet him in the storeroom. She disagreed with the suggestion that the accused only gave her $20 to buy marshmallows.
AB went to Coles and bought multiple packets of marshmallows but no bread because Coles did not have the bread the café used. She received $70 in change which she put in her apron pocket.
AB met the accused in the storeroom which was a large room adjacent to the café. Inside she saw a table, a chair and boxes with drinks and other items for the café. In cross-examination, she said she could not remember a whole series of chairs stacked in the storeroom, a series of bins or an area dedicated to cardboard and boxes to be thrown out.
When she walked in, the accused asked her to lock the door behind her, which she did. There was no-one else in the room. She walked over to the table to put the marshmallows down. She went to give the accused the change but he told her to ‘keep it for now’. She got her pen and paper to do the stocktake. She had not done stocktake before. She agreed in cross‑examination it was a reasonably quiet night that night in the café.
AB went to the drinks, bent down, counted them and wrote down the stocktake. The accused was standing close, brushing behind her, ‘hovering over and sort of looking over my shoulder and stuff and bending down with his body behind me’. They had a normal conversation about the drinks.
The accused then went to sit on the chair. He asked her to come over and sit on his lap. She walked over a little bit but did not sit down. He said he ‘didn’t bite’ and to come sit on his leg. She went over and sat on one of his knees with her legs closed. He had his legs apart. He asked her questions about how many boyfriends she had had, how many boys she had kissed, how many sexual partners she had had and what type of sex she had had. She either replied ‘I don’t know’ or brushed them off and laughed about them.
The accused asked her if she would have sex with him for $200. She did not answer. He then asked if she would give him a massage for $20. She said she was not very good at giving massages. He said, ‘Come on, you can’t be that bad’. She gave him a massage on his shoulders for no more than a couple of minutes whilst he sat on the chair.
The complainant said she had to go back to the café to help. She walked over to the table to get the marshmallows. The accused was standing behind her when he said to her ‘What colour underwear are you wearing? I think you’d be a g‑string type of girl’. He was touching her hips and was pushed up against the back of her. He was looping his fingers through her underwear whilst her pants were still up. He then asked for her to pull them down so he could ‘see her bum’. She pulled them down whilst he still had his hands on her and then he asked her to bend over so that he could ‘look at her bum’. She complied. She pulled her jeans down to above her knees. Her underwear was still up. She was wearing a g‑string. The accused was still standing behind her touching her hips and bare bottom. She felt there was no other option but to pull her pants down. He was her boss so she did what he said. She estimated that part went on for about five minutes but it was hard to know the exact time.
She said to him that they had to go back to the café because they had been gone for a while. She pulled her pants back up. She tried to give him back the change from Coles. He told her to keep it, not to put it in her bank account because her parents would see it and not to tell anyone about what had happened, not even her best friend. She grabbed the marshmallows and went back to the café. She thought they had been in the storeroom for a total of about 30 minutes.
The accused picked up some broken glass that was in the storeroom at the time. The complainant resumed normal duties with the other female who was front of house. The accused spoke to the chef about the broken glass. The accused left not long after that. It was about 8.00pm.
The accused rang the complainant as she and the other female were packing up the chairs out the front of the café. He said he needed to get through to the other front of house employee to tell her how to close the till properly. After he finished speaking to the other employee, that employee gave the complainant her phone back. The accused asked her to think about his offer, that she could negotiate as well and that he has a shack that was nearby. He told her she would be his best girl, she would get more shifts if she accepted his offer and not to tell anyone. AB said she would have to think about it. She gave evidence that she did not really understand what was going on at the time. She felt she could not work there.
The complainant was picked up by her boyfriend and taken home where she lived with her parents. She told her boyfriend her boss was ‘being creepy’. She could not remember what else she might have said. Her boyfriend told her to tell her mother because it was not normal and he did not think it was right. The prosecution did not call her boyfriend as a witness.
At 1.30pm on Sunday, 13 November 2016, the complainant sent the accused a text. It said
·About what we spoke about last night, I don’t think it’s a very good idea since it would probably be uncomfortable working together and stuff. That’s understandable, isn’t it?
The accused responded in three texts as follows:
·       Of course it is!
·       I understand and hope I didn’t upset you.
·       Sorry if I upset you. Are you upset with me?
She did not respond. At some stage, the accused sent her a text message asking her what size she was because he wanted to buy her some Victoria’s Secret underwear. She could not remember whether that text message was before or after the text message that she sent.
Complaint
On the night of Sunday, 13 November 2016, the complainant told her mother what had happened. Her mother was in the loungeroom lying down on the lounge watching TV. The complainant could not remember the exact details of what she told her mother. She told her that she and the accused were alone in the room and that he touched her. She did not remember telling her mother specific details. She told her mother that he touched her on the side of her body and sort of the back of her body. She was not sure if she told her mother about the money or not. Her mother rang the police that night. On Monday morning, she went in with her mother to the police station. She showed the police officer the text messages that she had on her phone.
The complainant’s mother gave evidence that around 8.00pm or 8.30pm she was watching TV in the loungeroom alone. The complainant came in and sat right next to her and started crying. She said she had something she needed to tell her. She said, ‘I don’t know how to tell you this I’m really embarrassed’. Her mother said to her ‘you can tell me anything, we have always had a really open relationship, whatever you tell me, I’ll believe you’.
According to AB’s mother, AB said she went to work and the accused asked her to come into the storeroom to help bring something into the shop. When she was in there, the door was locked. She said he asked her what she would do for extra money and she said she would go back into the café and polish chairs and do the floors. He said ‘no, I don’t mean that’. He said he had noticed she always wanted extra shifts and she said ‘yeah, I always want extra money, I’ve just got a car’. She told her mother that is when she realised that was not what he meant. She told her mother he wanted her to go Coles and buy some marshmallows and something else and put $100 into her apron. She went to buy the marshmallows and was asked to meet him back in the room. She went back in the room and he would not accept the change. He grabbed her by the back of the pants and tried to pull her pants down and grabbed her on the bottom.
Her mother gave evidence both she and AB were crying. AB’s mother said she comforted AB for ages and told her they needed to call the police.
On Monday, AB’s mother saw the $70 in the complainant’s purse as well as a text message on AB’s phone asking her something like ‘What size Victoria lingerie do you wear? Can I buy you some?’. She remembered that message because the words set off alarm bells in her mind. She remembered the complainant showing the text message to the police officer at the police station.
I do not consider the evidence of AB’s statement to her boyfriend that the accused was being ‘creepy’ amounts to a complaint regarding some or all of the charged conduct. It is a very general description which could encompass a large range of behaviours. The evidence is hearsay and not admissible for the truth of what was said. The only use I make of that evidence is that the accused followed her boyfriend’s advice to speak to her mother.
The evidence of AB’s complaint to her mother is admissible in regard to counts 2 and 3. It is evidence of how these allegations first came to light. It may be used as evidence of the degree of consistency of conduct of AB. It is not admitted as evidence of the truth of what was alleged. There may be varied reasons why a complainant makes a complaint at a particular time or to a particular person. Here, AB told her mother within 24 hours. It was a prompt complaint. There are some inconsistencies between what her mother recalls AB told her and the evidence of AB. I will discuss those below, but in summary, I do not find the inconsistencies to be such as to detract from AB’s overall credibility.
Defence case
The accused is now 28 years old. He gave evidence that in 2016, he and his parents owned that café business. They also had another business in Adelaide. He employed the complainant to work at the café. In the early stages, she had two to three shifts per week. That changed to about one shift per week because she was not a reliable worker. At most times, she was not available for the shifts that he put in the roster.
From August 2016, the café was open during the days. By early September 2016, it was also open for dinner on Thursday through to Sunday. They had a liquor licence. He would work at the café when it was open.
He employed his chef, some helpers for the chef, a couple of managers and some waiting staff. He assisted mainly in the front bars, behind the coffee machine.
During the day, staff were to dress in black or normal jeans and a top, with an apron. He said at night they were to dress ‘a bit nicer’. He did the rosters weekly or fortnightly.
On 12 November 2016, he started working at the café at about 10.00am. He remained there until 7.30pm‑8.00pm. He went to the business in Adelaide, then home. Before the evening shift he sent a text to the complainant reminding her she needed to wear something a bit nicer, dressier, because it was her first shift she was going to work in the evening.
The complainant arrived at 5.00pm. It was a quiet night. He said at roughly 7.00pm, he and the complainant went to the coolroom. He wanted to show AB how to do a few things. He said the coolroom had been broken into in the past, not long ago, so he did not feel safe either going by himself or sending one of the staff there alone. They got muffins for the following day and some bits and pieces for the kitchen. They carried those items back to the café. He took $20 from the till and told the complainant to buy some marshmallows for the next day. They had a supplier, but given that it was Saturday night, they could not order anymore, so he needed one bag for Sunday. He told her to meet him in the storeroom, where he would be doing the stocktake.
He went to the storeroom and started doing a stocktake. The complainant arrived in the storeroom after about 10 minutes. She had one bag of marshmallows, the receipt and the change which she placed on the wooden bench in the storeroom. The two of them were in the storeroom for another 10‑15 minutes doing the stocktake. He told her to grab the marshmallows, the receipt and the change. He grabbed some stock and they went to the café. On the way, he noticed there was a broken glass near the outdoor area. When he got back to the café, he asked the staff what had happened in relation to the broken glass. The receipt and change went next to the till, so the managers could put that back in. He left at about 8.00pm.
He rang the manager after he had left, but she did not answer her phone, so he called the complainant and asked her to pass the phone to the manager. He spoke with the manager about the closing procedures and told her to send staff home that were not needed anymore because they were not busy that night. He then spoke to the complainant. He told her to finish what she was doing and then go home. She then asked for more shifts for the following week. He said no. He said ‘I was a little bit sick of the pestering of always being asked for more shifts’. He said that she hung up the phone straightaway.
The accused said the door in the storeroom was unlocked. He denied asking her the questions alleged or indecently assaulting her in the storeroom.
In relation to the text message the complainant sent him the next day, he said he thought she was talking about their conversation about her wanting more shifts and how he could not give her more shifts. He denied ever sending her a text asking her the size of her underwear or mentioning Victoria’s Secret underwear.
About a week later, he sent her some Facebook messages asking her whether she was coming in for her shift. She said she was not going to work there anymore. He was not surprised that she did not want to work anymore. He described her as a very unreliable worker. She always had other things to do like cheerleading, dancing and gymnastics.
Discussion
The prosecution case relies solely upon the evidence of the complainant.

Mr Caldicott submitted there were aspects of her account which did not ring true either because of embellishment or inconsistency.
He submitted whilst AB’s mother claimed to have seen AB with the $70, it was not handed to the police. Similarly, AB’s mother claimed to have seen the Victoria’s Secret text message, but that was not shown to the police. He said it beggars belief that a police officer did not make note of such a text message which suggests it did not exist. He submitted that the money and that text message were later embellishments by AB.
Constable Holmes took a statement from AB on Monday, 14 November 2016 after AB and her mother arrived at the police station that day. The only text messages she recorded in AB’s statement were the texts between AB and the accused.[1] She gave evidence they were all the text messages she observed at that time. The complainant gave evidence she showed Constable Holmes the Victoria’s Secret text message. Her mother gave evidence she saw that text message and remembers it because it set off alarm bells in her mind.
[1] See [24] and [25] above.
Constable Holmes graduated in September 2014. She was relatively inexperienced at the time she took a statement from AB. She did not make any notes of her contact with AB and AB’s mother. It seems she permitted AB’s mother to be present when she took a statement from AB, despite AB’s mother being a complaint witness (although AB’s mother gave evidence AB asked her to leave the room when it got to what happened in the storeroom). She did not arrange for photographs of the messages on AB’s phone to be taken. In fact, it seems there was no police investigation of AB’s allegations until February 2018 when the matter was assigned to Detective Corfield for investigation. Photographs of the café were not taken until March 2019. Even then, no photographs were taken of the storeroom where the criminal conduct was alleged to have occurred. The complainant gave evidence she did not delete any text messages from the accused before she went to the police station on 14 November 2016. She only deleted them a year or two later because she had not heard anything back from the police for a long time. Constable Holmes had not told her to keep the messages. Mr Caldicott submitted no telephone records were obtained.
I accept Mr Caldicott’s criticisms of the police investigation. It is for the prosecution to prove the case. If the prosecution fails to do that to the extent that doubt remains, then the accused must receive the benefit of that doubt. This police investigation was less than perfect. It was deficient. However, the absence of evidence from Constable Holmes about the text message does not cause me to doubt AB or her mother. AB’s mother said she ‘100% read that one’. I believe her.
In relation to the $70 which AB said was the change left over after buying marshmallows, there is no evidence about whether the $70 was shown or handed to the police by the complainant. Neither she, her mother nor Constable Holmes were asked questions on that topic. I will not speculate about that. Mr Caldicott submitted that $30 out of $100 was a lot of money to spend on marshmallows. He pointed to the lack of evidence from the prosecution regarding any cash reconciliation for that night. On AB’s version, there would have been a shortfall. The accused gave evidence he gave AB $20 from the till to buy marshmallows and the change was put back near the till for another employee to reconcile at the end of the evening. Again, there is an absence of evidence on this topic, however, I do not find it a significant matter nor one which causes me to doubt the complainant’s evidence. There is no dispute the accused asked her to go to Coles to buy marshmallows that evening and then meet him in the storeroom.
Mr Caldicott criticised the absence of any evidence from the other employees who worked at the café that night as well as the absence of stocktake records. It is the case that the woman who was front of house could have given evidence about how long AB was away in the coolroom/Coles/in the storeroom. However, on AB’s evidence, she was absent for about an hour. On the accused’s evidence, AB would have been absent for about 32 to 37 minutes. Those times were only estimates and given the timespan under consideration, there is not much room for a third person to make a meaningful difference. Further, on both the account of AB and the accused, there was a stocktake done. I do not think the records would advance matters any further.
Mr Caldicott submitted the complainant’s evidence about the text message sent by the accused before her shift on Saturday, 12 November 2016 was an indication of her embellishing her evidence. She gave evidence he asked if she could wear something short to work. In fact, the text asked her to ‘wear a dress or something more formal’. I do not consider there is anything sinister in her evidence. It is understandable that, after the event in question, she may now think the accused mentioned something about her wearing a short skirt or dress. Nor do I think there was anything sinister in the accused sending that text. The evidence indicates he told all his staff that evening work wear was to be dressier than day wear.
In relation to the evidence of AB’s complaint to her mother, Mr Caldicott submitted it is possible that AB’s mother is not remembering what AB told her on Sunday night, but rather what she heard her daughter tell the police or what they discussed subsequently. That suggestion was not put to AB’s mother. She gave evidence she had not read any of AB’s statements. Although it was unwise for Constable Holmes to have AB’s mother present when she took AB’s statement, my view is that AB’s mother was doing her best to remember what AB told her on the Sunday night before they went to the police station the next day.
Mr Caldicott drew attention to the inconsistencies between AB’s evidence about what happened in the storeroom and what her mother said she said happened. The fact that there is some inconsistency suggests in itself that AB’s mother was doing her best to remember what AB told her rather than remembering AB’s statement to the police. It is necessary to consider the extent of the inconsistencies.
The complainant’s mother gave evidence AB told her the accused grabbed her by the back of the pants and tried to pull her pants down and grabbed her on the bottom. She said he pulled down her knickers with her pants and touched her bottom. In re‑examination, she thought AB said he pulled her pants down, she could not remember whether that might have been together with her knickers. AB’s evidence was that the accused asked her to pull her pants down, which she did, but that her g-string knickers remained on. There is an inconsistency between AB’s evidence and what she told her mother on this aspect. AB gave evidence she told her mother the accused asked her to pull her pants down. I think AB’s mother is likely to be incorrect in recalling what AB said to her on this topic. It would be understandable to remember AB as saying that the accused, rather than AB, pulled her pants down. Even if AB’s mother correctly recalled AB’s account such that there is an inconsistency with AB’s evidence, I do not consider the inconsistency significant. There is no doubt that AB’s pants were pulled down. The identification of who pulled them down (the complainant or the accused) is of little moment given that AB has never alleged any physical force was used by the accused. She complied out of intimidation and pulled her pants down, rather than the accused using actual force to pull them down.
My view is the same in relation to whether there is an inconsistency between AB’s evidence that her pants were pulled down and not her knickers and her mother’s evidence that she may have said her knickers were pulled down. In every day terms, a reference to ‘pants’ being pulled down may or may not include knickers. It is not clear from AB’s mother’s evidence whether AB did go into the detail about her knickers. I think she did not and that there is no inconsistency between her evidence and what she told her mother.
AB’s mother gave evidence that at a later time, the complainant did say she was touched on the front of her body. There was no evidence about the circumstances of that statement by AB nor was AB cross-examined about that statement. I do not know whether that could relate to when AB says she was asked to sit on his lap. There is insufficient evidence about that possible inconsistency for me to make a finding about it or assess its weight.
The complainant agreed that there were some inconsistent statements made by her to the police. She agreed that in her initial statement to the police, she said ‘I took my pants off, I was scared, I was scared he was going to do something bad to me’. She said at the time she did not really interpret that as taking your pants down and off. She said she corrected it later, after reading it. I think that difference arises due to imprecision in expression, rather than an inconsistency.
The complainant also agreed she might have said to the police the accused kept ‘hitting my bum and trying to get me over’. She gave evidence the accused was playing with her bottom, moving his hands around her hips and bare bottom, but she did not remember him hitting her as such. Although there is some inconsistency, it does not detract from her generally credible evidence about the events that evening.
Mr Caldicott submitted that AB’s account should not be believed because if the accused had a sexual interest in her, then the better place to act upon that was in the relatively secreted coolroom rather than the storeroom which was next to the café. However, AB did give evidence that something did happen in the coolroom. She said when she was checking the muffins the accused was standing ‘real close’, ‘like pushed behind me’. He also asked her what she would do for $200. I think he was ‘testing the waters’ when they were in the coolroom, that is, gauging her reaction.
Mr Caldicott submitted the complainant was wrong in her memory about the layout of the storeroom. He submitted that if what she says happened did happen, then those matters would be indelibly imprinted on her brain. There is a discrepancy between her evidence and the accused’s evidence on that topic. I do not know who is correct. In my view, it does not matter much. I do not agree that because of the alleged criminal conduct, it follows that the details of the layout would be indelibly imprinted in AB’s mind. It would be understandable for her memory to be either way in relation to the layout, detailed or not detailed. I do not think one way would be ‘expected’ and another not.
Similarly, Mr Caldicott submitted that AB’s evidence that she did not recall answering the accused’s inappropriate questions did not fit. On the contrary, I find her evidence that she did not really answer and tried to brush him off to be believable given the situation she found herself in with her employer.
During her evidence, the complainant sometimes used the phrases ‘from what I can remember’ or ‘as far as I can remember’. Mr Caldicott referred to those occasions in her evidence for the purpose of pointing out that it is for the prosecution to prove the case beyond reasonable doubt. He also acknowledged, it could simply be the way AB answers questions. In my mind, it is the latter. Further, often questions were put to her in terms of ‘do you remember’. I do not think her responses in those terms were indicative of her being vague. She gave evidence she had a good memory of what happened in the storeroom.
Mr Caldicott referred to AB’s evidence that during the phone call after the accused left work that night, AB claimed the accused said he had a shack nearby. The accused’s evidence was that he did not have a place nearby. He said AB was fabricating the conversation. There is no evidence the accused had a place nearby. However, I do not think that means he did not suggest to AB that he did. In order to get AB to agree to have sex with him, I think he told AB he had the money and the place, she just had to say yes.
Mr Caldicott submitted the accused had suffered a forensic disadvantage as a result of the missing items/evidence. I do not consider the lapse of time of approximately four years has resulted in a significant disadvantage to the accused[2]. There was a delayed and deficient police investigation. I have taken into account the potential of the police to have obtained evidence in considering whether the prosecution has proved its case beyond reasonable doubt, bearing in mind the prosecution has that onus and the accused has no onus of proof. In all the circumstances, I do not consider any forensic disadvantage to be significant.
[2] Evidence Act 1929, section 34CA
The defence has suggested a motive on the part of the complainant to lie about these allegations, being that the accused refused to give her more shifts. A motive to lie is relevant to the credibility of a complainant. I have considered that motive to lie and rejected it, as set out below. Of course, it does not therefore follow that the complainant is being truthful. The absence of evidence of a motive to lie does not strengthen the prosecution case. It is neutral. Lies can be told for no apparent reason. It is not for the accused to provide a motive for the complainant to lie. At all times the prosecution bears the onus of proving beyond reasonable doubt the complainant was telling the truth.
In relation to the possible motive, the complainant was cross‑examined about messages sent via Facebook messenger with the accused from July 2016 through to 27 August 2016 and then re‑commencing on 17 November 2016. She agreed there were a couple of messages from her saying she was not able to make certain shifts because of other commitments.
According to the messages themselves, there were only a few occasions when AB advised she had another commitment and could not do the shift. The first was in relation to her training shift. AB sent a message on 28 July 2016 that she could not make her training shift on the Saturday morning, but agreed she could do the Monday morning and Tuesday night instead. On 3 August 2016, she said she could not go on Saturday as it showed in the roster because of cheerleading competitions, which only happened very rarely. The accused responded ‘yeah, come Thursday. No problem lovely’. On 8 August 2016, she then advised she could go on Saturday for training now as per the roster and asked if she still should come Thursday as well. The accused responded yes please.
The second occasion was following a query by the accused on 15 August 2016, at 11.59pm, as to whether AB could work tomorrow night. The next morning, the complainant responded she could not because she had dance, but that someone else was available.
The complainant gave evidence she thought her shifts did start to get less frequent because the café was not as busy. She did not remember asking for a lot of additional shifts, but she said it was made obvious when she first started that she wanted as many shifts as she could get. She could not remember ever complaining to the accused about not having enough shifts.
She said she did not ask the accused for more shifts when he rang after he left that evening of Saturday, 12 November. She denied that he said to her there was only one or none per week and she could either take it or lump it. She also denied hanging up on him.
I did not find the accused’s evidence to be credible on this point. His evidence suffered from tension between his attempt to portray the complainant as an unreliable employee who pestered him about more shifts (to try and explain AB’s text the next day), and his evidence that he was investing time in her training (to try and explain the time they spent alone on the Saturday night). His evidence that AB asked multiple times for more shifts, but he was unable to give her any; that she asked to work in the business in Adelaide, but he said no; and that she often asked why she would only get one shift in the week, was generally denied by the complainant.
The accused gave evidence that during the phone call after he left work that evening, AB once again pestered him for more shifts and he told her ‘I cannot give you more shifts’. His evidence that this is what she was referring to in her text the next day makes no sense. When confronted in cross‑examination with a suggestion to that effect, he began to embellish the phone call and said it was not a very pleasant one. He gave evidence that the unpleasantness was in the way they were talking to each other which was quite abrupt; it was the tone of voice. She was yelling at him and he yelled at her. He said he felt bad for yelling.
I do not believe the accused about that phone call or his evidence generally that the complainant often asked him for more shifts. His evidence does not ring true that during that evening he was investing the time in further training of the complainant, but soon after he left, they were yelling at each other. His evidence that he had to keep staff on for the Christmas period was tenuous given this was not even mid-November. Further, the text message sent by the complainant and the accused’s responses are consistent with the account that the complainant gave of what happened in the storeroom. The accused made no admissions to this alleged criminal conduct in his responses, however, his responses demonstrate that he knew at the time what her text was about. His evidence about what her text was about was not plausible.
I did not find the accused to be a credible witness generally.
Even though he was not interviewed by the police until 14 February 2018, the accused purported to be certain about detail such as asking the complainant to get only one marshmallow packet, not asking her to get any bread and only giving her $20. On his account, there was no reason for this evening to be memorable.
The accused was cross‑examined about messages between himself and AB on Facebook messenger on 27 August 2016. The complainant was asking the accused about an earlier conversation she had had with him. She asked whether the other girls were involved or just herself and a couple of others. The accused responded that the other girl was involved. He then said, ‘you need to convince me that you deserve it’, ‘you need to show me that you deserve it’. The complainant then responded ‘so you need to get rid of all of us except one. Okay I will try my hardest’. The accused responded, ‘not get rid …’, ‘the best one will stay and then another one will have one shift every now and then’, ‘you need to keep this to yourself! I am serious don’t tell the others’ and ‘but if you really want it you need to show me what you’ve got’. The complainant responded, ‘ok yes I won’t tell anyone promise!’
The accused gave evidence he did not see anything inappropriate in his texts. He thought it was normal for a business owner to expect the best of their workers. The complainant needed to show him with her work that she deserved the shifts that she wanted. When asked whether he thought it was appropriate to play off one girl against the others, he said ‘I did not want to play favourites in anyway at all. That was to stay confidential as she asked me for more shifts confidentially’. He said she had to keep it secret because he did not want the other staff to think he had favourites in the work place. He said none of his texts meant that she was his favourite. He did not think that what he texted put her under pressure.
In trying to account for texts that did not reflect well upon himself, the accused came up with an explanation that endeavoured to deflect the focus back on the complainant (she was the one who wanted it to be confidential) and made little sense in light of the objective evidence (the texts). I have not reasoned that because of those texts, the accused is a bad person or is the type of person who would commit these offences. Rather, I have found his responses to the objective evidence to detract from his general credibility.

The accused’s explanation for asking the complainant to go to the coolroom that evening was not believable. He said the coolroom had been broken into recently so he did not feel safe going by himself or sending one of the staff members there alone. He said he was scared because it was a lower ground car park with no cameras. At the time of evening, however, the shopping centre was open and it was daylight savings. As I have already said, I consider he took the complainant there that evening to ‘test the waters’ with her. He stood up close to her. She did not say anything adverse to him.
Both the complainant and the accused gave evidence it was a quiet night at the café. Nevertheless, I do not believe the accused needed, on his account, a single packet of marshmallows for the next day. Sending the complainant to Coles to get marshmallows was a ruse to get her to meet him in the storeroom. I think he sent her off with $100 in order to let her keep the change with a view to making her more amendable to his suggestion.
Having rejected his evidence, it does not follow that he must be guilty. The prosecution bears the onus of presenting evidence to prove its case against the accused beyond reasonable doubt. The accused does not have to prove anything. I have considered the points made by Mr Caldicott both individually and together. I have scrutinised the evidence of the complainant with care. I have considered each count separately. The complainant presented well as a witness. Her answers were thoughtful and measured. I consider she was doing her best to remember that evening at work; an evening which remains distressing. I got no sense of her embellishing what occurred. She presented as an honest person who was put in a difficult, awkward and compromising situation by her employer. Having seen her give evidence, assessed what she has said carefully and scrutinised it with all the other evidence, I am satisfied beyond reasonable doubt that what she said happened in the storeroom did in fact occur.
I find the accused guilty of all three counts.